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Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

ADMINISTRATIVE LAW/1. INTRODUCTION/(1) MEANING/[005.001] Definition of 'administrative law'
[005.001] Definition of 'administrative law' The scope and nature of 'administrative law' may generally be
described as follows: 'Administrative Law' deals with the structure, powers and functions of the organs of
administration, the limits on their powers, the methods and procedures followed by them in exercising their
powers and functions, the methods by which their powers are controlled, including the legal remedies,
available to a person against them when his rights are infringed by their operation.'
The above formulation of administrative law has several limbs:
(1) the first limb deals with the composition and powers of the organs of administration. The term
'organs of administration' is used in a broad sense as including all kinds of public or
administrative authorities which may be an individual official, or a body of officials, or an
administrative authority, or a statutory body.
(2) the second limb refers to the limits on the scope and ambit of powers of these authorities.
These limits may be express or implied. The express limits are laid down in the statutory
provisions. The implied limits are derived by the courts through the interpretative process of
these statutory provisions. In doing so, the courts play an activist role. This is a very significant
aspect of administrative law as express limits are not usually laid down in the statutory
provisions and, therefore, the courts have to imply certain limits on the scope and exercise of
administrative powers1.
(3) the third limb of the above formulation refers to the procedure which an administrator may
have to follow in exercising these powers. A study of administrative law seeks to emphasise
upon the processes and procedures which authorities themselves have to follow in exercising
their powers. The present-day juristic thinking is that evolving fair administrative procedures is a
significant way of minimising abuse of vast powers which are usually conferred on the
administration at present. For example, natural justice forms a very significant component of
today's administrative procedure2. The courts may imply natural justice in many variegated
situations even when the parent statute conferring power on an administrative authority may be
silent on the point. This is what is implied by the courts in most of the cases, but the legislature
itself may lay down some procedures which the administration may have to follow in exercising
its powers.
(4) the fourth limb of the above formulation refers to the control mechanism over the
administration and the redressal of individual grievances against the administration. Both are
inter-related concepts. In this category judicial as well as extra-judicial means to control the
administration, such as, ombudsman3, tribunals4 etc.
As an additional form of control over the administration, tribunals are established outside the normal judicial
hierarchy. This aspect of administrative law is based on the twin basic propositions that:
(a) power is conferred on the administration by law; and

(b) such power is not absolute and uncontrolled.
This means that:
(i) an action of the administration which is not authorised by law is invalid, and
(ii) howsoever broad the power may be, in effect, it can never be regarded as uncontrolled and
absolute.
The control and redressal aspect of administrative law is perhaps the most important component of law for
an individual who is adversely affected by any administrative action. All the previous limbs mentioned above,
converge at the point of redressal of individual grievances against the administration. The underlying idea is
that there ought to be a balance between public power and personal rights and so a remedy ought to be
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available to a person whenever his right or interest is adversely affected by the exercise of public power.
Thus, whenever a public power is unduly exercised adversely affecting an individual, there ought to be some
relief given to him to redress his grievance.
Courts play a yeoman's role both by way of controlling the administration and keeping it within the legal limit
and also providing relief to the individual against the administration. This is known as judicial review of
administrative action5. In most cases, quashing of the illegal administrative action may suffice, but in some
cases, awarding damages to the individual may be necessary to recompense him for the loss suffered by
him by illegitimate exercise of its powers by the bureaucracy. In India, a trend seems to be emerging of
awarding damages to the individual for the loss suffered by him by undue bureaucratic action6.
The Supreme Court and High Courts have been liberally bestowed with powers of judicial review by the
Constitution of India7. In course of time, the courts have further expanded their own supervisory powers over
the administration by their own interpretative process. The courts supervise and control administrative action
because the courts believe that they are under an obligation to protect individual rights against any lawless
and undue action of the administration8.
1 As to an implied limit on powers, see [005.182] and following.
2 As to the principle of natural justice, see [005.054]. and following.
3 As to ombudsman in India, see [005.354] and following.
4 As to select tribunals in India, see [005.143] and following.
5 As to judicial review of administrative action, see [005.210] and following.
6 As to damages against the administration see [005.277].
7 See note 5 above.
8 As to the developing principles of administrative law, [005.002] and following.

ADMINISTRATIVE LAW/1. INTRODUCTION/(2) EVOLUTION OF ADMINISTRATIVE LAW/[005.002] Growth
of administrative law
[005.002] Growth of administrative law The main reason for development of administrative law has been
the expansion of the administrative apparatus, functions and powers of the government. This has been the
effect of demise of the laissez faire era, which was the prevailing dogma in the 9th century1 and the rise of
the era of a social welfare state in the middle of the 20th century2. Under the impetus of the dogma of the
social welfare state, the bureaucracy acquired more and more powers. It assumed many functions which had
previously been left to private enterprise. The state, thus, became omnipotent3. Consequently, the state has
become omnipresent and omniscient and the bureaucracy has assumed large powers to affect the rights,
liberties and property of the individuals.
Expansion in administrative power creates the spectacle of misuse and abuse of power. This means that
regulation and control of administrative power becomes a necessity and thus, administrative law has grown.
This branch of law really concerns itself with the control of administrative power. In reality, administrative law
has two facets:
(1) to validate and legitimise conferment and exercise of due administrative powers, and
(2) to outlaw, misuse and abuse power and to regulate the exercise of legitimate power; Both
functions are inter-related.
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When extensive powers are conferred on the administration, it becomes necessary to evolve a suitable
control mechanism so as to protect individuals from unwarranted and undue exercise of powers by the
administration. While, on the one hand, administrative law supports conferment of due and legitimate powers
on the administration, and their proper exercise, it also, on the other hand, voids illegitimate and undue
exercise of power.
Administrative law is, thus, an instrument of control over the exercise of bureaucratic powers. Administrative
law seeks to ensure that the government acts according to law, based on proper legal principles and
according to rules of reason and justice and that an adequate control, mechanism exists to check
administrative abuses and provide adequate relief in case a person is adversely affected by misuse of
power.
There is also the question of the phenomenon of bureaucratic corruption4. In the absence of proper guiding
norms to exercise discretionary powers5, vested in administrative officers, uncontrolled discretionary powers
have inherent seeds of corruption, for it may be difficult to assess whether a particular administrative
decision is bona fide and based on merits and proper considerations or is mala fide and motivated by some
improper and corrupt consideration6.
1 The philosophy of laissez faire envisaged minimum governmental control over private enterprise and maximum free
enterprise and contractual freedom. The state acted more like a 'police', or a 'law and order' state, its role being limited to
defending the country from external aggression and maintaining law and order within the country, dispensing justice to the
people and collecting a few taxes to meet its expenses. This limited concept of state functions resulted, in course of time, in
wide scale human misery and exploitation of the poor by the rich because, in the absence of equal bargaining power, the
freedom of contract really meant the freedom of the rich, the economically strong persons, to impose iniquitous conditions on
the poor. The result of this mismatch of bargaining power was that after the First World War (1914-1919), the laissez faire
doctrine stood discredited: see Denning, 'Freedom under the Law' (1949) p 69.
Maclver, ' The Modern State' (1964) p 460: Thus, the economic individualism of laissez faire itself could not withstand the
demonstration of its inadequacy which the age afforded.
2 In course of time, a realisation dawned that the state should take a more positive interest in ameliorating the conditions of the
masses. This feeling gave rise to the political philosophy of collectivism which favoured state intervention in, and social control
and regulation of individual enterprise. Out of collectivism emerged the concept of the social welfare state which laid stress on
the state acting as a vehicle for the socio-economic welfare of the people: see Dicey, 'Law and Public Opinion in England
(1962)pp 126-210, 212-302. See also Jethro Brown, 'The Underlying Principles of Modern Legislation' (1971)pp 156-280; Calvin
Woodard, ' Reality and Social form: The Transition from Laissez Faire to Welfare State ' v 72 Yale LJ 286; Maclver, 'The Web
of Government (v (1965) p 236;.
The concept of a welfare state in India is embodied in the preamble to the Constitution of India and the Directive Principles of
State Policy: see Jain, 'Constitution of India n Law' (2003)chs 1 and 34.
Samatha v State of Andhra Pradesh AIR 1997 SC 3326, Samatha v State of Andhra Pradesh (1997)6 JT 449: 'The
Constitution of India seeks to establish an egalitarian social order rendering to every citizen, social, economic and political
justice in a social and economic democracy...'.
In a number of pronouncements, the Supreme Court has insisted that the Directive Principles introduced the concept of a
welfare state in the country. For example: 'The Constitution of India envisages the establishment of a welfare state at the
federal level as well as at the state level. In a welfare state, the primary duty of the government is to secure the welfare of the
people': Paschim Banga Khet Mazdoor Samiti v State of West Bengal AIR 1996 SC 2426 [LNIND 1996 SC 914] [LNIND 1996
SC 914] [LNIND 1996 SC 914], Paschim Banga Khet Mazdoor Samiti v State of West Bengal (1996) 4 SCC 37 [LNIND 1996
SC 914] [LNIND 1996 SC 914] [LNIND 1996 SC 914].
3 Atiyah points out that the 20th century has seen a decline in the importance of contract. Growth of state activism has indirectly
increased the number of situations where relations between the citizen and the public authority are governed by public law
rather than private law: Atiyah, 'The Rise and Fall of Freedom of Contract' (1979).
Schwartz asserts that Sir Henry Sumner Maine's classic generalisation in ancient law that the progress of ancient society has
been from status to contract has all but been reversed in our day and in some ways, the contemporary society has again
reverted to the medieval ideal of status: see Bernard Schwartz, ' 'Crucial Areas in Administrative Law' v 34 Geo Washington LR
401 (1966).
4 As to bureaucratic corruption in India, see [005.062].
5 As to discretionary powers, see, [005.182] and following.

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6 Wheare, ' Maladministration and Its Remedies'.

ADMINISTRATIVE LAW/1. INTRODUCTION/(2) EVOLUTION OF ADMINISTRATIVE LAW/[005.003] Rule of
law
[005.003] Rule of law An important function of administrative law is to promote rule of law1. The concept of
rule of law seeks to promote administration according to law. Rule of law envisages that the administration
does not exercise any power outside the law. Rule of law means absence of arbitrary power. No one can be
deprived of his right, liberty or property without the authority of law.
Rule of law seeks to lessen the discretionary element in the conferment and exercise of power by the
administration because discretionary power brings in the subjective -element of the person exercising the
power, and it is extremely difficult to control such an element and thus, there is a chance of the power being
abused or misused2. The courts in India have used the concept of rule of law as a hedge against arbitrary
administrative power3.
Administration does not have any inherent power of its own so as to adversely affected any individual right
by its own fiat or decree. The administration enjoys such powers only as emanate, or are derived, from law.
Bureaucracy has to keep itself within the confines of law and it can exercise no power which is not
sanctioned by law. This is the cardinal principle operating in common law countries which leads to judicial
control of administrative action through the application of the doctrine of ultra vires. This seeks to ensure that
the administration does not exceed its legal powers4.
This principle ensures that no one can be deprived of his right, liberty or property without the authority of law.
It also ensures judicial review of administrative action as the courts seek to ensure that the administration
does not exceed its legal powers. While the rule of law does not, as such, outlaw discretionary power, it does
outlaw arbitrary power which means that any discretionary power should not be too wide and unrestrained so
as to become arbitrary. While complete absence of discretionary power may not be possible in the
present-day context, it ought not to be too wide and unrestrained, and that it must be subject to a proper
control mechanism against its abuse or misuse, so as not to become arbitrary as to pose a danger to the
person and property of the citizens.
Administrative law promotes rule of law insofar as it seeks to draw a balance between public power and
private interests by providing a redressal mechanism so that the individual who gets hurt by undue
administrative action gets proper relief and redressal against the administration. This ensures that
administrative power be exercised in a lawful manner.
Thus, in the final analysis, the prevailing system of administrative law in any country has to be evaluated
from the standard of rule of law. The questions to ask is: (1) how far does administrative law promote and
strengthen the rule of law in the country; and (2) how far is administrative law able to ensure an effective
control over the bureaucracy and provide an effective redressal mechanism to a person who is hurt by any
bureaucratic action.
A significant derivative of 'rule of law' is judicial review. Judicial review is an essential element of rule of law.
Judicial review involves determination of the legal validity of administrative action. The actions of the
bureaucracy as well as other public authorities are all subject to judicial review. They are, thus, all
accountable to the courts for the legality of their actions. It is for the courts to ensure that the administrative
authorities do not indulge in arbitrary and unreasonable actions. In India, so much importance is given to
judicial review that it has been declared to be the 'basic feature' of the Constitution which cannot be done
away with, even by the exercise of the constituent power5.
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1 As to the concept of rule of law: see, Jain, Indian Constitution of India n Law 6-9 (2003).
2 As to 'discretionary powers' see [005.182] and following.
3 For instance, see Bachan Singh v State of Punjab AIR 1982 SC 1325 [LNIND 1982 SC 117] [LNIND 1982 SC 117] [LNIND
1982 SC 117], Bachan Singh v State of Punjab (1982) 3 SCC 24 [LNIND 1982 SC 117] [LNIND 1982 SC 117] [LNIND 1982 SC
117], Bachan Singh v State of Punjab [1983] 1 SCR 145 [LNIND 1980 SC 261] [LNIND 1980 SC 261] [LNIND 1980 SC 261]
(the rule of law excludes arbitrariness and unreasonableness).
AK Kraipak v Union of India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], AK Kraipak
v Union of India (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], AK Kraipak v Union of
India [1983] 1 SCR 145 [LNIND 1980 SC 261] [LNIND 1980 SC 261] [LNIND 1980 SC 261]per Hedge J: 'In a welfare state such
as ours, it is inevitable that the organ of the state set up under the Constitution of India is controlled and regulated by the rule of
law. In a welfare state like ours, it is inevitable that the jurisdiction of the administrative bodies is increasing at a rapid rate. The
concept of rule of law would lose its validity if the instrumentality of the state is not charged with the duty of discharging their
functions in a fair and just manner.'
'No doubt any arbitrary action taken by the state would be subject to scrutiny by the courts because arbitrariness is the very
antithesis of rule of law': Rayalseema Paper Mills Ltd v Government of Andhra Pradesh AIR 2002 SC 3699 [LNIND 2002 SC
661] [LNIND 2002 SC 661] [LNIND 2002 SC 661], Rayalseema Paper Mills Ltd v Government of Andhra Pradesh (2003) 1 SCC
341 [LNIND 2002 SC 661] [LNIND 2002 SC 661] [LNIND 2002 SC 661], Rayalseema Paper Mills Ltd v Government of Andhra
Pradesh (2002) 8 JT 361.
4 As to 'judicial review' see [005.210] and following.
5 See State of Bihar v Subhash Singh AIR 1997 SC 1390 [LNIND 1997 SC 173] [LNIND 1997 SC 173] [LNIND 1997 SC 173],
State of Bihar v Subhash Singh (1997) 4 SCC 430 [LNIND 1997 SC 173] [LNIND 1997 SC 173] [LNIND 1997 SC 173], State of
Bihar v Subhash Singh (1997) 2 JT 463.
For further discussion of this concept see Jain, 'Indian Constitutional law' (2003)ch 41.

ADMINISTRATIVE LAW/1. INTRODUCTION/(2) EVOLUTION OF ADMINISTRATIVE LAW/[005.004] Salient
features of administrative law in India
[005.004] Salient features of administrative law in India When the British rule came to an end, and India
gained independence on 15 August 1947, administrative law was in an incipient state in the country. The
reason was that the British government functioned more or less as a 'police' state, its main function being to
maintain law and order within the country, defend it against external aggression, and to collect a few taxes
for the purpose of meeting the expenses of the government.
The ruling alien power was primarily interested in strengthening its own domination; the administrative
machinery was used mainly with that objective in view and, consequently, the civil service was characterised
as the 'steel frame'. There was not much development work done in the country.
The Constitution lays emphasis on the state working for the amelioration of the socio-economic conditions of
the people1. The Constitution has a chapter on directive principles of state policy which lays down certain
guidelines for the governments in India to follow and to observe in the governance of the country2. The
Constitution itself contains a number of provisions which have a bearing on the development and content of
administrative law3.
The government has been given powers to take administrative action, powers to legislate and adjudicate.
Innumerable administrative bodies, quasi-judicial bodies, tribunals, regulatory bodies and public sector
enterprises have been set up in the country4. Thus, proliferation of the administrative process has taken
place on a vast scale as a consequence of the exercise of these powers5.
The conferment of vast powers on the administration creates the spectre of their misuse and abuse which
may adversely affect the interests of an individual. The adage that 'power corrupts and absolute power
corrupts absolutely' means that power should be properly structured and controlled, as uncontrolled and
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vagrant power can always be misused by the person wielding such power. This prospect, therefore, makes it
essential that it be ensured that those who wield power exercise the same according to law.
Accordingly, responsibility has fallen on the courts to evolve and enunciate and its agencies, from case to
case, the principles for regulating the exercise of power by the government and supervise the exercise of
power with a view to ensure that the norms laid down by it are scrupulously followed, in various situations,
over a period of time. Thus, the institution of judicial review of administrative action comes into vogue and
becomes the most significant segment of the present day functioning of the courts6.
1 See the preamble to the Constitution which states that the Constitution of India would 'secure to all its citizens justice, social,
economic and political'.
2 As to the Directive Principles of State Policy, see [005.006]. See, Jain Indian Constitutional Lawch 34 (2003).
3 As to the Constitutional provisions see [005.006].
4 As to administrative bodies see [005.143] and following.
5 For example, Registrar of Cooperative Societies v K Kunjabmu AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC
472] [LNIND 1979 SC 472], Registrar of Cooperative Societies v K Kunjabmu (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND
1979 SC 472] [LNIND 1979 SC 472], Registrar of Cooperative Societies v K Kunjabmu [1980] 2 SCR 260 [LNIND 1979 SC 472]
[LNIND 1979 SC 472] [LNIND 1979 SC 472].
6 It may be of interest to note that the judges of the Supreme Court have openly advocated that the courts have to discharge
but a dynamic law-creative function not a static. For example, see S P Gupta, VM Tarkunde, JL Kalra, Iqbal M Changla
Rajappa, P Subraminiam, D N Pandey v President of India AIR 1982 SC 149, S P Gupta, VM Tarkunde, JL Kalra, Iqbal M
Changla Rajappa, P Subraminiam, D N Pandey v President of India (1981) Supp SCC 87, S P Gupta, VM Tarkunde, JL Kalra,
Iqbal M Changla Rajappa, P Subraminiam, D N Pandey v President of India [1982] 2 SCR 365. This case is also popularly
known as the Additional Judges case'.
Also see Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor Sabha AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND
1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor Sabha (1980) 2 SCC 593
[LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor
Sabha [1980] 2 SCR 146 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464]; Maneka Gandhii v Union of India
AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Maneka Gandhii v Union of India (1978) 1
SC 248, Maneka Gandhii v Union of India [1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25] per
Bhagwati J; Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh AIR 1979 SC 621 [LNIND 1978 SC 382] [LNIND
1978 SC 382] [LNIND 1978 SC 382], Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh (1985) 1 SCC 479 [LNIND
1984 SC 331] [LNIND 1984 SC 331] [LNIND 1984 SC 331], Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh
[1985] 2 SCR 224 [LNIND 1984 SC 331] [LNIND 1984 SC 331] [LNIND 1984 SC 331].

ADMINISTRATIVE LAW/1. INTRODUCTION/(2) EVOLUTION OF ADMINISTRATIVE LAW/[005.005] Indian
administrative law versus British administrative law
[005.005] Indian administrative law versus British administrative law Basically, the Indian administrative
law is based on the English common law which was introduced in India as early as 17261. India has
borrowed several fundamental legal principles and institutions from Britain, inter alia, the concept of rule of
law, the doctrine of ultra vires, judicial review and the writ system comprising the writs of habeas corpus,
certiorari, prohibition, mandamus and quo warranto2.
Besides, innumerable rules forming the corpus of administrative law, eg the concepts of natural justice, mala
fide, unreasonableness have been borrowed by the Indian courts from the English common law3.
However, differences between the Indian and the English administrative laws are many. One, Britain does
not have a written Constitution of India whereas India has a detailed written Constitution of India. This means
that the Indian courts have to keep in view the relevant Constitutional provisions while expounding the
principles of administrative law. Thus, the Indian courts have two sources from which to draw legal principles
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common law and the Indian Constitution, and the latter is a much more superior source than the former.
Two, Britain lives by the doctrine of parliamentary sovereignty which means that a law enacted by Parliament
is unchallengeable in any forum but it is not so in India4. This is because of the written Constitution and a law
enacted by a legislature in India is subject to judicial review and the courts have power to declare a law void,
if inconsistent with a Constitutional provision5. Similarly, any action taken by the administration can be
declared void if it is found to be inconsistent with a Constitutional provision6. The Constitution of India, thus,
gives an additional dimension to administrative law in India which is not the case of Britain.
Three, unlike Britain, where judicial review is based on common law, and is, thus, subject to the vicissitudes
of legislation, judicial review in India is Constitutionally guaranteed7. Not only that, it is now regarded as a
basic feature of the Constitution8. This means that the range and ambit of judicial review as laid down in the
Constitution of India cannot be curtailed by any legislation.
A court which interprets the Constitution and can even declare a law made by Parliament unconstitutional,
has much more leverage to orient the law than a judge who merely interprets a statute and whose jurisdiction
is subject to legislative vagaries. A law can curtail a court's jurisdiction to review an administrative action in
Britain9, but it cannot happen in India because of the Constitutional provisions guaranteeing judicial review.
Thus, the Indian administrative law has a more solid foundation to stand upon as it derives its strength not
only from common law but also from the Constitution of India. One outstanding example of judicial creativity
in India in the field of administrative law is the growth of public interest litigation which is still in a very
elementary stage in Britain10.
1 In the Presidency Towns of Calcutta, Madras and Bombay, the Charter issued by King George-I in 1726, setting up the
'majors' courts in these towns, introduced English law.
See MP Jain Outlines of Indian Legal History chs 6, 7 and 22: in the mofussil. ie, the area beyond the Presidency Towns, the
courts were directed to administer justice according to justice, equity and good conscience.
2 Also see BL Hansaria, 'Writ Jurisdiction under the Constitution of India' (1984). As to a detailed discussion on writs see
[005.279].
3 As to comments on the Indian Constitution, see, M P Jain, 'Indian Constitutional Law' (2003).
4 As to a discussion on this doctrine, see SA De Smith, 'Constitution and Administrative Law' (1977)vol 1 ch 3.
5 As to a discussion on this aspect of Constitutional Law: see MP Jain, 'Indian Constitutional Law'ch 41.
6 See [005.255].
7 See [005.210] and following.
9 As to privative clauses under [005.232] note 4.
10 As to public interest litigation see [005.330].

ADMINISTRATIVE LAW/1. INTRODUCTION/(2) EVOLUTION OF ADMINISTRATIVE LAW/[005.006]
Relevant constitutional provisions
[005.006] Relevant constitutional provisions Unlike Britain, India has a written Constitution and a number
of its provisions have a direct bearing on the growth, development and content of administrative law.
(1) There is the preamble to the Constitution of India1. It is stated therein that the Constitution aims
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at establishing a sovereign, socialist, secular, democratic, republic in India so as to secure to all

its citizens, inter alia, social, economic and political justice. The philosophy of a welfare state is
thus expressly ingrained in the Constitution2.
(2) The idea of a welfare state is further bolstered by the directive principles of state policy3. The
Directive Principles, as such, are not enforceable through the mechanism of the courts, but
otherwise it is the duty of the state to follow these principles both in the matter of administration
as well as in the matter of making laws3. These principles specifically promote the ideal of a
welfare state4 and put the state under an obligation to strive to establish an economic and
social democracy in the country. For example, the Constitution of India art 38 puts the state
under an obligation to strive to promote the welfare of the people by promoting a social order in
which 'justice, social, economic and political', shall inform all the institutions of the national life.
The Constitution of India art 39 requires the state to direct its policy towards securing that the
citizens have equal right to an adequate means of livelihood; that the ownership and control of
the material resources of the community are so distributed as best to subserve the common
good; that there is no concentration of wealth and means of production to the common
detriment; and that there is equal pay for equal work. The Constitution of India art 41 obligates
the state to provide for education and assistance in case of old age, unemployment, sickness
and other contingencies. The Constitution of India art 45 requires the state to provide for free
and compulsory education for children up to the age of 14 years. The impact of the concept of
a social welfare state as envisaged in the directive principles on the Indian polity has been very
profound over a period of time. It has led to state activism. The Directive Principles have
provided the impetus for conferring vast powers on the government to enable it to promote
socio-economic welfare of the people5.
(3) The state provides benefits to its citizens and imposes social control and regulation over
private enterprises. A number of key industries have been nationalised6 in course of time, and
a rigorous system of state control and regulation of private enterprise has been created7. This
may be ascribed to declaring India a 'Socialist Republic' in the preamble. The inevitable
consequence of such state activism has been that the state assumed more and more powers
to regulate various aspects of the society. Innumerable bodies have been established to
implement policies and regulatory functions and this has resulted in proliferation of the
bureaucracy. Indians have come to live in an administrative age where the
executive-cum-administrative wing has become very predominant. The administration has
come to acquire immense power and has come to discharge variegated and multifarious
functions. In this scenario, chances of abuse and misuse of power abound and there is a great
need of administrative law to keep state power under control and guide it into legal channels.
(4) The Constitution of India has a chapter on fundamental rights comprising Constitution of India
arts 12-35. These provisions guarantee certain rights to the people and, consequently, prohibit
the state from taking any action, administrative or legislative, so as to adversely affect the rights
of the people. The function of fundamental rights is to limit state action and consequently,
administrative process8.
(5) The Constitution of India art 14, known as the equality clause, runs as follows: 'The state shall
not deny to any person equality before the law or equal protection of the laws within the
territory of India.' Constitution of India Article 14 means that 'equals should be treated alike'; it
does not mean that 'unequals ought to be treated equally9.' The courts have used this clause in
several ways to control the administrative process. It bars state discrimination10. The courts
have interpreted Constitution of India Article 14 to mean that every state action must be
reasonable, just, fair and non-arbitrary11. The Supreme Court has ruled that every arbitrary
action of the government amounts to denial of equality. Constitution of India Article 14
developed by the Supreme Court in recent years states that it embodies 'a guarantee against
arbitrariness' on the part of the administration12. Article 14 has also been invoked to apply
some procedural safeguards, the most significant of which is natural justice13. Natural justice
has been declared to be an integral part of administrative process. The courts have vetoed
excessive delegation of discretionary power on the administration on the ground that
conferment of too broad, sweeping or uncanalised discretionary power may degenerate reality
into arbitrariness or may result in discrimination and, thus, contravene Constitution of India
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article 1414. The influence of Constitution of India article 14 is all prevailing in Indian
administrative law, so much so that the right to equality has been declared as the basic feature
of the Constitution of India15.
(6) The Constitution of India arts 19(1)(g)and19(6) is another provision which has proved to be a
source of a lot of administrative process in the country. Under Constitution of India art 19(1)(g),
an Indian citizen has the right to carry on any trade, business or occupation. Under the
Constitution of India art 19(6), reasonable restrictions can be imposed on this right in public
interest16. All aspects of trade-licensing, price-fixing, control over movement of commodities,
requisitioning of stocks, control over manufacture of commodities, control over imports and
exports have been controlled. The question as to how much discretion can be conferred on
administrative authorities to control and regulate trade and commerce has been raised in a
number of cases. The general principle evolved in this respect is that the power conferred on
the administration should not be arbitrary, unregulated by any rule or principle, and that 'it
should not be left entirely to the discretion of any authority to do anything it likes without any
check or control by any higher authority.' 'A law or order which confers arbitrary and
uncontrolled power upon the executive in the matter of regulating trade or business in normal
available commodities cannot but be held to be unreasonable17.'
(7) Constitution of India article 21 runs as follows: 'No person shall be deprived of his life or
personal liberty except according to the procedure established by law18.' The expression
'procedure established by law' in Constitution of India article 21 now means that the procedure
in Constitution of India art 21 means 'right and just and fair procedure' and not 'arbitrary,
fanciful or oppressive' procedure. The concept of reasonableness must be projected in the
procedure contemplated by the Constitution of India art 2119. The Supreme Court has taken a
giant step forward by interpreting 'procedure' in the Constitution of India art 21 as 'fair,
reasonable, and just procedure' and, thus, introducing elements of procedural due process in
the Indian Law. The courts can now insist on better procedural safeguards whenever there is a
case of deprivation of life or personal liberty. In the area of personal liberty, procedural
safeguards play a crucial role20.
(8) Judicial review is the most significant component of administrative law. It plays a very
significant role in the development of administrative law21. It serves as an effective control
mechanism over the administration. An aggrieved person can get redressal against
unwarranted administrative action by invoking the courts power; courts have played a notable
role in developing and expounding the norms of administrative law over a period of time. A very
notable aspect of the Indian Constitution is that it guarantees judicial review on a broad scale.
The Constitution of India arts 32, 136, 226 and 227 may be mentioned in this connection.
These articles are so broadly worded that ultimately it is left to the courts themselves to
delineate the limits on their jurisdiction to supervise administrative action as a matter of judicial
policy. Judicial review is, thus, put on a very solid pedestal and is free from legislative
interference.
(9) Under the Constitution of India art 32, the Supreme Court has power to issue any writ or pass
any order for the enforcement of any fundamental right22. Under the Constitution of India art
136, the Supreme Court has discretion to grant special leave to appeal from the decision of any
court or tribunal23. Constitution of India Article 26 authorises every high court to issue a writ or
order direction for the enforcement of a fundamental right or for any another purpose24. Finally,
Constitution of India art 227 confers a supervisory role to the high court over all courts and
tribunals within their territorial jurisdiction25. The Constitution of India guaranteed powers of
judicial review have greatly strengthened the hands of the superior courts to play an activist
role in developing the norms of administrative law and keeping administrative authorities within
legal limits in discharging their powers. Further, the courts have strengthened their own hands
by declaring judicial review and rule of law as the basic features of the Constitution of India
which means that these principles are not only beyond any legislative interference but even
above any Constitutional amendment26.
10 10
Page
1 For preamble to the Constitution of India see Jain Indian Constitutional Lawchs 1 and 34. See also[80]CONSTITUTIONAL
LAW.
2 The Supreme Court has used the term 'social justice' used in the preamble:
(1) to uphold legislation;

(2) to remove economic inequalities;
(3) to provide a decent standard of living to the working people; and
(4) to protect the interests of the weaker sections of the society:
See Lingappa Pochanna Appealwar v State of Maharashtra AIR 1985 SC 389 [LNIND 1984 SC 331] [LNIND 1984 SC 331] [LNIND
1984 SC 331], Lingappa Pochanna Appealwar v State of Maharashtra (1985) 1 SCC 479 [LNIND 1984 SC 331] [LNIND 1984 SC 331]
[LNIND 1984 SC 331], Lingappa Pochanna Appealwar v State of Maharashtra [1985] 2 SCR 224 [LNIND 1984 SC 331] [LNIND 1984
SC 331] [LNIND 1984 SC 331]; DS Nakara v Union of India AIR 1983 SC 130 [LNIND 1982 SC 208] [LNIND 1982 SC 208] [LNIND
1982 SC 208], DS Nakara v Union of India (1983) 1 SCC 305 [LNIND 1982 SC 208] [LNIND 1982 SC 208] [LNIND 1982 SC 208], DS
Nakara v Union of India [1983] 2 SCR 165 [LNIND 1982 SC 208] [LNIND 1982 SC 208] [LNIND 1982 SC 208]; Sadhuram Bansal v
Pulin Behari Sarkar AIR 1984 SC 1471 [LNIND 1984 SC 128] [LNIND 1984 SC 128] [LNIND 1984 SC 128], Sadhuram Bansal v Pulin
Behari Sarkar (1984) 3 SCC 410 [LNIND 1984 SC 128] [LNIND 1984 SC 128] [LNIND 1984 SC 128], Sadhuram Bansal v Pulin Behari
Sarkar [1984] 3 SCR 582 [LNIND 1984 SC 128] [LNIND 1984 SC 128] [LNIND 1984 SC 128].
3 As to the Directive Principles, see Jain, 'Indian Constitutional Law'ch 34.
Constitution of India art 35 states that the provisions contained in this part shall not be enforceable by any court but the
principles laid down therein are nevertheless fundamental in the governance of the country and it shall be the duty of the state
to apply these principles in making laws.'
The Supreme Court has discussed the nature of the directive principles in several cases, see, for example, State of Madras v
Champakam Dorairajan AIR 1951 SC 226 [LNIND 1951 SC 27] [LNIND 1951 SC 27] [LNIND 1951 SC 27], State of Madras v
Champakam Dorairajan [1951] SCR 525 [LNIND 1951 SC 83] [LNIND 1951 SC 83] [LNIND 1951 SC 83], State of Madras v
Champakam Dorairajan (1951) SCJ 313; The Kerala Education Bill In Re 1957 AIR 1958 SC 956, The Kerala Education Bill In
Re [1959] SCR 995, The Kerala Education Bill In Re (1958) ILR Ker 1167; Kesavananda Bharati Sripadagalvaru v State of
Kerala AIR 1973 SC 1461 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154], Kesavananda Bharati
Sripadagalvaru v State of Kerala (1973) 4 SCC 225 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154],
Kesavananda Bharati Sripadagalvaru v State of Kerala [1974] Supp SCR 1.
5 Pathumma v State of Kerala AIR 1978 SC 771 [LNIND 1978 SC 11] [LNIND 1978 SC 11] [LNIND 1978 SC 11], Pathumma v
State of Kerala (1978) 2 SCC 1 [LNIND 1978 SC 11] [LNIND 1978 SC 11] [LNIND 1978 SC 11], Pathumma v State of Kerala
[1978] 2 SCR 537 [LNIND 1978 SC 11] [LNIND 1978 SC 11] [LNIND 1978 SC 11] (the purpose of the directive principles is to
fix certain socio-economic goals for attainment by bringing about a non-violent social revolution).
6 The life insurance business was nationalised in 1956 when the Life Insurance Corporation Act 1956 was enacted to establish
the Life Insurance Corporation of India. A number of leading private banks were nationalised in 1969 and Parliament enacted
the Banking Companies (Acquisition and Transfer of the Undertakings) Act for this purpose. Besides nationalising private
enterprises, the government has established a number of public sector undertakings in the form of government companies and
statutory corporations.
7 For instance: The Industries (Development and Regulation) Act 1951; The Essential Commodities Act 1955; The Foreign
Exchange Regulation Act 1973; The Imports and Exports (Control) Act 1947; The Companies Act 1956; The Monopolies and
Restrictive Trade Practices Act 1969. Besides there are a number of statutes for regulating specific commodities, eg, The Tea
Act 1953; The Coffee Act 1942; The Rubber Act 1947; The Coir Industry Act 1953; The Cardamon Act 1965, and The Tobacco
Act 1975.
See Indian Law Institute, 'Government Regulation of Private Enterprise' (1971); MP Jain, 'Cases and Materials on Indian
Administrative Law '(vol 1) ch 1.
8 For impact of art 14 of the Constitution on administrative process in India, see note 13 below.
9 For a detailed discussion on art 14: see, Jain, 'Indian Constitutional Law'ch 21.
10 This principle is illustrated, inter alia, by J P Kulshreshtha v Chanceller, Allahabad University AIR 1980 SC 2141 [LNIND
1980 SC 221] [LNIND 1980 SC 221] [LNIND 1980 SC 221], J P Kulshreshtha v Chanceller, Allahabad University (1980) 3 SCC
418 [LNIND 1980 SC 221] [LNIND 1980 SC 221] [LNIND 1980 SC 221], J P Kulshreshtha v Chanceller, Allahabad University
(1980) Lab IC 692.
11 See EP Royappa v State of Tamil Nadu AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC
359], EP Royappa v State of Tamil Nadu (1974) 4 SCC 3 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359],
EP Royappa v State of Tamil Nadu [1974] 2 348; Shrilekha Vidyarthi v State of Uttar Pradesh AIR 1991 SC 537 [LNIND 1990
11 11
Page
12 For instance, Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly AIR 1986 SC 1571 [LNIND 1986 SC
560] [LNIND 1986 SC 560] [LNIND 1986 SC 560], Central Inland Water Transport Corporation Ltd v Brojo Nath Ganguly (1986)
3 SCC 156 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560], Central Inland Water Transport Corporation Ltd
v Brojo Nath Ganguly [1986] 2 SCR 278 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]: a service rule of a
government corporation authorising it to terminate the service of a permanent employee by giving a three months' notice was
held to be ultra vires as being unconscionable.
13 Delhi Transport Corporation v Delhi Transport Corporation Mazdoor Congress AIR 1991 SC 101 [LNIND 1990 SC 824]
[LNIND 1990 SC 824] [LNIND 1990 SC 824], Delhi Transport Corporation v Delhi Transport Corporation Mazdoor Congress
(1990) 3 JT 725 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC 824], Delhi Transport Corporation v Delhi
Transport Corporation Mazdoor Congress (1991) Lab IC 91(the 'audi alteram partem' rule, in essence, enforces the equality
clause in the Constitution of India art 14 and it is applicable not only to quasi-judicial bodies but also to administrative orders
adversely affecting the party in question).
14 Naraindas Indurkhya v State of Madhya Pradesh AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND
1974 SC 106], Naraindas Indurkhya v State of Madhya Pradesh (1974) 4 SCC 788 [LNIND 1974 SC 106] [LNIND 1974 SC 106]
[LNIND 1974 SC 106], Naraindas Indurkhya v State of Madhya Pradesh [1974] 3 SCR 624 [LNIND 1974 SC 106] [LNIND 1974
SC 106] [LNIND 1974 SC 106]: 'article 14 ensures equality before law and strikes at arbitrary and discriminatory state action... if
power conferred by the statute on any authority of the State is vagrant and unconfined and no standards or principles are laid
down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause,
because it would permit arbitrary and capricious exercise of power, which is the antithesis of equality before law.'
Also see Organo Chemical Industries v Union of India AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND
1979 SC 288], Organo Chemical Industries v Union of India (1979) 4 SCC 573 [LNIND 1979 SC 288] [LNIND 1979 SC 288]
[LNIND 1979 SC 288], Organo Chemical Industries v Union of India [1980] 1 SCR 417; Ashok Kumar Yadav v State of
Haryana AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197], Ashok Kumar Yadav v State of
Haryana (1985) 4 SCC 417 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197], Ashok Kumar Yadav v State of
Haryana [1985] Supp 1 SCR 657.
15 MG Badappanavar v State of Karnataka AIR 2001 SC 260 [LNIND 2000 SC 2032] [LNIND 2000 SC 2032] [LNIND 2000 SC
2032], MG Badappanavar v State of Karnataka (2001) 2 SCC 666 [LNIND 2000 SC 2032] [LNIND 2000 SC 2032] [LNIND 2000
SC 2032], MG Badappanavar v State of Karnataka (2000) 3 JT Supp 408. Also see Indra Sawhney v Union of India AIR 2000
SC 498, Indra Sawhney v Union of India (2000) 1 SCC 168, Indra Sawhney v Union of India (1999) 9 JT 557 at 17 : 'The
preamble to the Constitution emphasises the principles of equality as basic to the Constitution...Equality was one of the basic
features referred to in the preamble to our Constitution of India.'
16 For a detailed discussion on art 19(1) (g), see, Jain, 'Indian Constitutional Law'ch 24.
17 See Mineral Development Ltd v State of Bihar AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959
SC 224], Mineral Development Ltd v State of Bihar [1960] 2 SCR 609 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND
1959 SC 224], Mineral Development Ltd v State of Bihar (1960) SCJ 643; Hari Chand Sarda v Mizo District Council AIR 1967
SC 829 [LNIND 1966 SC 277] [LNIND 1966 SC 277] [LNIND 1966 SC 277], Hari Chand Sarda v Mizo District Council [1967] 1
SCR 1012 [LNIND 1966 SC 277] [LNIND 1966 SC 277] [LNIND 1966 SC 277], Hari Chand Sarda v Mizo District Council (1968)
1 SCJ 59 [LNIND 1966 SC 277] [LNIND 1966 SC 277] [LNIND 1966 SC 277]; Harakchand Ratanchand Banthia v Union of
India AIR 1970 SC 1453 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199], Harakchand Ratanchand Banthia
v Union of India (1969) 2 SCC 166 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199], Harakchand
Ratanchand Banthia v Union of India [1970] 1 SCR 479 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND 1969 SC 199];
Manick Chand Paul v Union of India AIR 1984 SC 1249 [LNIND 1984 SC 366] [LNIND 1984 SC 366] [LNIND 1984 SC 366],
Manick Chand Paul v Union of India (1984) 3 SCC 65 [LNIND 1984 SC 366] [LNIND 1984 SC 366] [LNIND 1984 SC 366],
Manick Chand Paul v Union of India [1984] 3 SCR 461 [LNIND 1984 SC 366] [LNIND 1984 SC 366] [LNIND 1984 SC 366];
Union of India v Annam Ramalingam AIR 1985 SC 1013 [LNIND 1985 SC 58] [LNIND 1985 SC 58] [LNIND 1985 SC 58], Union
of India v Annam Ramalingam (1985) 2 SCC 443 [LNIND 1985 SC 58] [LNIND 1985 SC 58] [LNIND 1985 SC 58], Union of
India v Annam Ramalingam [1985] 2 SCR 951 [LNIND 1985 SC 58] [LNIND 1985 SC 58] [LNIND 1985 SC 58]; Sukhwinder Pal
Bipan Kumar v State of Punjab AIR 1982 SC 65 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND 1981 SC 450],
Sukhwinder Pal Bipan Kumar v State of Punjab (1982) 1 SCC 31 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND 1981 SC
450], Sukhwinder Pal Bipan Kumar v State of Punjab (1982) UJ (SC) 113; AN Parasuraman v State of Tamil Nadu AIR 1990
SC 40 [LNIND 1989 SC 492] [LNIND 1989 SC 492] [LNIND 1989 SC 492], AN Parasuraman v State of Tamil Nadu (1989) 4
SCC 683 [LNIND 1989 SC 492] [LNIND 1989 SC 492] [LNIND 1989 SC 492], AN Parasuraman v State of Tamil Nadu [1989]
Supp 1 SCR 371; Papnasam Labor Union v Madura Coats Ltd AIR 1995 SC 2200, Papnasam Labor Union v Madura Coats Ltd
(1995) 1 SCC 501, Papnasam Labor Union v Madura Coats Ltd (1995) JT 71. Also see Jain, 'Cases and Materials on Indian
Administrative Law '(vol 1) chs 1 and 2 p 1838.
18 For a detailed discussion on art 21, see, Jain, 'Indian Constitutional Law'ch 26.
19 Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Maneka
Gandhi v Union of India (1978) 1 SC 248, Maneka Gandhi v Union of India 1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978
SC 25] [LNIND 1978 SC 25].
20 Prabhu Dayal v District Magistrate, Kamrup AIR 1974 SC 183, Prabhu Dayal v District Magistrate, Kamrup (1978) 1 SCC
248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Prabhu Dayal v District Magistrate, Kamrup [1978] 2 SCR
12 12
Page
621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25] (the history of personal liberty is largely the history of
insistence on observance of procedure; and observance of procedure has been the bastion against wanton assaults on
personal liberty over the years).
Also see AK Roy v Union of India AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], AK
Roy v Union of India (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], AK Roy v Union of
India [1982] 2 SCR 272 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]; Special Courts Bill In Re 1978
AIR 1979 SC 478 [LNIND 1978 SC 661] [LNIND 1978 SC 661] [LNIND 1978 SC 661], Special Courts Bill In Re (1979) 1 SCC
380 [LNIND 1978 SC 661] [LNIND 1978 SC 661] [LNIND 1978 SC 661], Special Courts Bill In Re [1979] 2 SCR 476 [LNIND
1978 SC 661] [LNIND 1978 SC 661] [LNIND 1978 SC 661].
21 As to judicial review see [005.210].
22 For discussion on the writ jurisdiction of the Supreme Court under the Constitution of India art 32 see [005.255] and
following.
Also see, Jain, 'Indian Constitutional Law'ch 33.
26
What is the significance of declaring a feature of the Constitution of India as a 'basic' feature of the Constitution of India.
The underlying idea is that a basic feature of the Constitution is nonamendable by the normal process of amendment as laid
down in the Constitution of India art 368.
Besides 'rule of law' and 'judicial review', several other core features have been declared as the basic features of the
Constitution of India.
It is for the courts to identify the 'basic features' as these are not expressly catalogued in the Constitution of India. The doctrine
is purely a judge-made doctrine as a sign of judicial creativity.
See, for a discussion on this topic, Jain, 'Indian Constitutional Law'ch 41. See also Kesavananda Bharati Sripadagalvaru v
State of Kerala AIR 1973 SC 1461 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154], Kesavananda Bharati
Sripadagalvaru v State of Kerala (1973) 4 SCC 225 [LNIND 1973 SC 154] [LNIND 1973 SC 154] [LNIND 1973 SC 154],
Kesavananda Bharati Sripadagalvaru v State of Kerala [1974] Supp SCR 1; Indira Nehru Gandhi v Raj Narain AIR 1975 SC
2299, Indira Nehru Gandhi v Raj Narain (1975) Supp SCC 1, Indira Nehru Gandhi v Raj Narain [1976] 2 SCR 347; Minerva
Mills Ltd v Union of India AIR 1980 SC 1789 [LNIND 1980 SC 257] [LNIND 1980 SC 257] [LNIND 1980 SC 257], Minerva Mills
Ltd v Union of India (1980) 3 SCC 625 [LNIND 1980 SC 257] [LNIND 1980 SC 257] [LNIND 1980 SC 257], Minerva Mills Ltd v
Union of India [1981] 1 SCR 206 [LNIND 1986 SC 307] [LNIND 1986 SC 307] [LNIND 1986 SC 307].
On the specific question of 'judicial review' being declared, an essential or basic feature of the Constitution of India see L
Chandra Kumar v Union of India AIR 1997 SC 1125 [LNIND 1997 SC 488] [LNIND 1997 SC 488] [LNIND 1997 SC 488], L
Chandra Kumar v Union of India (1997) 3 SCC 261 [LNIND 1997 SC 488] [LNIND 1997 SC 488] [LNIND 1997 SC 488], L
Chandra Kumar v Union of India (1997) 3 JT 589.

ADMINISTRATIVE LAW/1. INTRODUCTION/(2) EVOLUTION OF ADMINISTRATIVE LAW/[005.007]
Judicial activism and Indian administrative law
[005.007] Judicial activism and Indian administrative law It has been long held that the function of a
judge is merely declaratory and not creative and that the role of a judge is only to propound the law as it
exists but not to make it1.
In the USA, the courts exercise the power of judicial review of legislation as the USA has a written
Constitution unlike Britain2.
In India, there have been a few conservative judges who have adopted the traditionalist approach and have
13 13
Page
expressed reservation regarding the activist judicial approach3. However, then many more judges have
chosen the activist approach and this becomes very clear from a perusal a case-law pertaining to
administrative law especially after the year 19774. The outstanding fact remains that in India, hitherto, by and
large, much of the development in administrative law can be ascribed to the activist role played by the
Supreme Court judges. This approach has become all the more predominant since the Maneka Gandhi case
decided by the Supreme Court in 19775.
A judge has to do justice in the context of a concrete factual situation before him. If there is no readymade
principle of law applicable to the factual situation available, the judge has to invent a principle and decide the
case. This is the law-making function of the judge. Two examples may be cited to show the extreme
reluctance on the part of Parliament to do anything in the matter. Till today the Parliament has not been able
to enact a law defining the ambit of tortious liability of the government for the torts committed by its servants.
From 1965, in Kasturi Lal6, the Supreme Court had pointed out that the law regarding the government's
tortious liability was in a very unsatisfactory condition and that a law similar to the Consumer Protection Act
1947 (UK) be enacted to improve matters7. Over the last thirty years, the Supreme Court, making use of its
powers under of the Constitution of India8 has itself developed norms for compensating people who may
have suffered from tortious actions of government employees. In fact, the norms developed by the courts in
this area are much more liberal than what the Parliament would have ever enacted9.
Another extreme example of legislative remissness is the non-enactment of the Lokpal (Ombudsman) Bill10.
Such examples of lack of initiative on the part of the Parliament can be multiplied. A creditable step taken so
far by Parliament is the establishment of a tribunal system in the country11.
Legislation confers vast powers on the administration but, without laying down any procedural or substantive
safeguards or standards to control the exercise of administrative power. The fact that judicial review is
Constitutionally guaranteed, as stated above, gives the necessary strength, confidence and leverage to the
judges to develop the principles of administrative law. The written Constitution of India and the fundamental
rights therein help the judges to relate many common law principles of administrative law to these
Constitutional provisions and, thus, put them on a very firm pedestal. It is the function of the courts to draw a
balance between the individual and administrative powers so as to ensure administrative fair play.
The year 1977 proved to be a watershed in the history of the Indian administrative law and the administration
acted in a despotic manner. The Supreme Court found itself unable to control, and enter into fisticuffs with
the administration on behalf of the people.
It is no exaggeration to say that the period 1975-1977 is the blackest period in the history of the Supreme
Court12. However, when the emergency was lifted in 1977, and the Indira Gandhi government which had
imposed the emergency was convincingly defeated at the polls, the Supreme Court embarked on an activist
role with the first post-emergency case of Maneka Gandhi13.
A close scrutiny of the evolution of case-law in India shows that, as a result of judicial dynamism and
activism, a number of liberal and progressive trends have changed in administrative law. Some of the main
trends are mentioned below:
(1) expansion of the right of hearing to many fact situations, and thus, the class of interests
entitled to hearing before agency infringement of these interests has been constantly
expanding14;
(2) expansion of the scope and depth of judicial control over discretionary powers of the
administration15;
(3) expansion of the scope and ambit of judicial review of administrative action which includes:
(a) liberalisation of the principle of locus standi to claim judicial review so as to enlarge the
class of interests entitled to claim judicial review of administrative action;
(b) bringing public authorities under the scope of judicial review and thus, placing them
under the discipline of administrative law;
(c) expansion of the scope of the writ system;
(d) promotion of the institution of public interest litigation;
14 14
Page
(e) restricting the scope of privative clauses in statutes16;
(4) extension of the scope of redressal mechanism to give redress to persons affected by adverse
administrative action; this includes:
(a) moulding of relief to suit the specific situation rather than giving relief in the traditional
form;
(b) liberalising the concept of liability for tortious actions of the government agencies17.
(5) introducing the doctrines of promissory estoppel18 and legitimate expectation19 in the Indian
administrative law.
(6) regulating government power to confer benefits on people as well as to deprive them of the
same, increasing judicial surveillance over award of contracts by the state20.
(7) promoting the ideal of open government21.
The Indian administrative law is still in an evolutionary process and the courts are constantly expanding and
refining the same so as to keep effective control over the expanding power of the administration. As there is
no prospect that Parliament will take much interest in this area in the immediate future, it will remain the
responsibility of the activist Indian judges to continue to develop the norms of administrative law which may
be appropriate for a vibrant democratic system following the philosophy of rule of law.
Blackstone Commentaries (1808) 69. While speaking at the Australian Law Convention in 1951, Blackstone J asserted: It is
quite possible that the law has produced a result which does not accord with the requirements of today. If so, put it right by
legislation but do not expect every lawyer .to act as Lord Mansfield did, and decide what the law ought to be. He is far better
employed if he puts himself to the much simpler task of deciding what the law is.please do not get yourself into the frame of
mind of entrusting the working out of a whole new set of principles to the judges which does accord with the requirements of
modern conditions. Leave that to the legislature, and leave us to confine ourselves to trying to find what the law is.
For a detailed discussion on this theme, see, MP Jain, Role of the Judiciary in a Democracy v (1979) JMCL 239-303. Lord
Reid, 'The Role of the Judiciary in a Democracy v (1972) 2 Jl of SPTL 22-23. See also Nothman v Council [1979] 1 All ER
1943; Bradford City v Lord Commissioner (1979) 2 WLR 1; Denning Discipline of Law 9.
However, judicial activism began with Ridge v Baldwin [1963] 2 AII ER 66 and since then the British courts have played a very
dynamic, creative and constructive role in developing the corpus of administrative law.
2 . Jaffe, 'English and American Judges' (1969)p 2: 'In the last few years, American judges have been prodigiously active in
making new law.'
3 Kailasam J expressed the static view of the judicial function in Jit Ram Shiv Kumar v State of Haryana AIR 1980 SC 1285
[LNIND 1980 SC 190] [LNIND 1980 SC 190] [LNIND 1980 SC 190], Jit Ram Shiv Kumar v State of Haryana (1980) 1 SCC 11,
Jit Ram Shiv Kumar v State of Haryana [1980] 3 SCR 689 [LNIND 1980 SC 190] [LNIND 1980 SC 190] [LNIND 1980 SC 190].
Expressing his dissent from the forward looking view taken by Bhagwati J in Motilal Padampat Sugar Mills Co Ltd v State of
Uttar Pradesh AIR 1979 SC 621 [LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382], Motilal Padampat Sugar
Mills Co Ltd v State of Uttar Pradesh (1985) 1 SCC 479 [LNIND 1984 SC 331] [LNIND 1984 SC 331] [LNIND 1984 SC 331],
Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh [1985] 2 SCR 224 [LNIND 1984 SC 331] [LNIND 1984 SC 331]
[LNIND 1984 SC 331] Kailasam J stated: 'The powers of the court to legislate are strict. Judges ought to remember that their
office is jus dicere and not jus dare, to interpret law, and not to make law or give law.. The courts by their very nature are most
illsuited to undertake the task of legislating. We feel we are duty bound to express our reservation regarding the 'activist'
jurisprudence and the wide implications thereof...'. As to promissory estoppel see [005.297]; ESTOPPEL[140.098].
The activist approach of judicial functioning has been advocated by many Indian judges from time to time. For example, K Iyer J
ardently advocates a creative judicial approach in Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor Sabha AIR 1980
SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes
Mazdoor Sabha (1980) 2 SCC 593 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes
Ltd. v Gujaraj Steel Tubes Mazdoor Sabha [1980] 2 SCR 146 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC
464]: 'Here we come upon a fundamental dilemma of interpretative technology, that is, the judicative faculty. What are the limits
of statutory construction? It is increasingly important for developing countries, where legislative transformation of the economic
order is an urgent item on the national agenda, to have the judiciary play a meaningful role in the Constitution's revolution
without fretting out flaws in the draftsman, once the effect and object are plain.
15 15
Page
See also Southern Pacific Co v Jensen 244 US at 211 (1916).
5 Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor Sabha AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC
464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor Sabha (1980) 2 SCC 593 [LNIND 1979
SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd. v Gujaraj Steel Tubes Mazdoor Sabha [1980] 2
SCR 146 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464].
6 Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh AIR 1965 SC 1039 [LNIND 1964 SC 245] [LNIND 1964 SC 245] [LNIND
1964 SC 245], Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh [1965] 1 SCR 375 [LNIND 1964 SC 245] [LNIND 1964 SC
245] [LNIND 1964 SC 245], Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh (1966) 2 Lab LJ 583 [LNIND 1964 SC 245]
[LNIND 1964 SC 245] [LNIND 1964 SC 245].
7 For discussion on this Act, see, Wade, 'Administrative Law'(1988)pp 808-820.
8 Ie the Constitution of India art 32: [005.255] and following. Also, below, for further discussion on the way the High Court have
used the Constitution of India art 226 for a similar purpose: see [005.222] and following.
9 See [005.277] and [005.316].
10 As to the 'lokpal bill in India' see [005.355].
11 As to the 'tribunal system in India' see [005.143].
12 For an assessment of the role of the Supreme Court during this period: see, Jain, ' Indian Constitutional Law'.
13 For a detailed discussion of the Maneka Gandhi case, see [005.054].
14 As to the concept of natural justice, see [005.051] and following.
15 As to 'discretionary powers' see [005.051].
16 As to judicial review [005.210] and following.
17 As to award of damages in case of tortious liability see [005.277].
18 See [005.297] and ESTOPPEL[140.098].
19 See [005.301].
20 As to government contract see [005.307] and following.
21 As to 'open government' see [005.357].

ADMINISTRATIVE LAW/2. CLASSIFICATION OF FUNCTIONS/[005.008] Classification of functions
[005.008] Classification of functions Just as the government of a country is divisible into three functional
components, that is, legislative, judicial and executive, so are the powers conferred on the administration
which are classified into:
(1) power to legislate which in administrative law parlance is known as delegated legislation1;
(2) power to adjudicate which is generally characterised as quasi-judicial or adjudicative power2;
and
(3) administrative power which is non-legislative and non-adjudicative in nature3.
Although making of such a characterisation of functions of the administration is, in practice, extremely
difficult, and although it seems artificial at times to make any such classification, yet, the present-day corpus
of administrative law is organised around the three fold classification of functions of the administration. Each
of these three types of functions have its own incidents which differentiate it from the other two. For example,
distinguishing legislative function, on the one hand, from administrative/quasi-judicial function, on the other
hand, assumes practical significance in administrative law, inter alia, in the following respects:
16 16
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(a) Publication: A legislative order needs to be published in the official gazette because it is of
general nature and applies to many persons and hence it should be widely known4. On the
other hand, a quasi-judicial or an administrative order need not be published as it applies to a
specific person or a few persons and needs to be known only to them.
(b) Procedure: Differentiation in the nature of functions leads to differentiation in the procedure to
be followed by the administration. For example, while discharging a quasi-judicial or
adjudicative function, the concerned authority must act according to the principles of natural
justice even though the relevant statute under which the authority is acting may not prescribe
any such procedure5.
In case the function being exercised is regarded as either legislative or administrative, the
authority does not have to act in accordance with the principle of natural justice6. In such a
case, the concerned body is required to follow only such procedure, if any, as may have been
prescribed in the relevant statute, there being no implied obligatory procedural norms required
to be followed in such a case7.
(c) Judicial Review: The courts apply different norms of judicial control depending upon the nature
of the power. The scope of judicial control is narrower is case of a legislative function than in
case of an administrative function, and the courts exercise the broadest review power in case
of an adjudicatory function discharged by an authority8.
For example, while mala fides may be a ground to challenge an administrative action9, it is not
yet definite whether the same ground may be pleaded to challenge an adjudicatory or a
legislative order. Whereas denial of natural justice may lead to the invalidation of an
adjudicatory order, it is not so in case of an administrative or legislative order10.
(d) Sub-Delegation: Differences between legislative and non-legislative functions may become
meaningful when questions of sub-delegation of power arise11.
A vagary of the administrative law is that while it revolves around the differentiation in classification of
functions, as stated above, and reference is constantly made to these concepts, it has not developed any
definite or articulate tests to identify the nature of a function or an order made by an authority to which class
does it belong?
When the legal validity of an order is challenged with reference to the principles of administrative law, the
first thing which the courts may have to do is to identify the nature of the order impugned because in many
cases what norms are to be applied to assess its validity will depend on this identification, as stated above,
under the heading 'judicial review'.
However, the difficulty of the present day administrative law is that there is no clear cut line of distinction
between these concepts. There are several reasons for this terminological inexactitude in administrative law.
One, authorities exercise not one but a miscellany of functions. For example, the Election Commission12
exercises legislative, administrative as well as adjudicatory functions.
Two, a power given by a statute to a body may be regarded as administrative in one situation and legislative
or quasi-judicial in another aspect. To illustrate this point, reference may be made to the Imports and Exports
(Control) Act 1947. It confers power on the Central Government to regulate imports and exports by issuing
orders. These orders may either be legislative or administrative in nature even though these orders are made
under one and the same statutory provision.
Generally speaking, a legislative order is an order of general applicability13. Legislation is the process of
formulating a general rule of conduct without reference to particular cases and usually operates in future. On
the other hand, an administrative/quasi-judicial order applies to specific cases and is not one of general
application. A legislative function is normally directed towards the formulation of requirements having a
general application to all members of a broadly identifiable class. As against this, an
administrative/quasi-judicial decision applies general rules to specific individuals or situations. Adjudication is
determinative of the past and the present facts and decides rights and liabilities. Thus, the power to take
17 17
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specific action is administrative while the power to take general action is legislative. Administrative function is
the process of performing particular acts. Legislation is indicative of the future course of action. Thus,
generality and prospectivity distinguish a legislative act, from an administrative/quasi-judicial act.
With the help of the above-mentioned tests, it may be possible to differentiate legislative functions from
administrative/quasi-judicial functions in a large number of cases. But then the tests may fail in some
situations because the functions of administrative authorities do not fall in water-tight compartments and the
distinction between 'general' and 'particular' is not very articulate and it is only a matter of degree.
For example, an order fixing price of wheat or rice may be designated as 'legislative' as it applies to millions
of farmers in the country; however a similar order fixing the price of a drug may be characterised as
'administrative' as there may be only one sole manufacturer of that drug, but it may be regarded as
'legislative', if millions of consumers or that drug are taken into consideration. Similarly, difficulties arise in
distinguishing between an administrative and an adjudicative or quasi-judicial function14. The difficulties in
the way of characterisation of functions may be better appreciated if reference is made to a few specific
situations in this connection.
What types of function does a statutory wage board15 discharge legislative administrative or quasi-judicial?
An answer to this question has several implications, eg:
(i) Is the decision of a wage board subject to judicial review16 and on what grounds?
(ii) Is the decision of the wage board subject to an appeal to the Supreme Court17?-Yes, if it is
quasi-judicial; no, if it is administrative or legislative.
(iii) Does natural justice apply to the proceedings of a wage board?
On the one hand, the wage board's determination may be treated as legislative on the ground that it binds
the employers and employees, and so, is of general nature, and it binds not only in the present but in the
future as well. But, on the other hand, as the wage board adjudicates between the claims and counter-claims
of the employers and the employees, and discharges a function like that of a labour tribunal15, its function
may be characterised as quasi-judicial18.
What is the nature of a price-fixing order? The question has been considered by the Supreme Court in
several cases.
In the beginning, the Supreme Court treated such an order as administrative19, but then the Court changed
its view and came to regard it as legislative20. An implication of such a holding has been that the various
interests who may be affected by such an order cannot claim a hearing before the price-fixing agency. As
has been stated above, generally speaking, the courts deny that any one can claim to be heard when the
function being discharged is of a legislative character. The analogy usually given is that of a legislature which
legislates without giving a hearing to the people affected by the laws enacted by it21.
Ordinarily, as stated above, exercise of a legislative function by an administrative body does not demand
application of natural justice while taking a decision. But, one can find cases where, though the function
could well be characterised as legislative on the basis of the test mentioned above, yet the court has directed
the decision-making body to give a hearing to the persons who would be adversely affected by its decision.
The court has done so with a view to protect the interests and right of the persons to be affected22.
Such cases show that judicial policy has a play in decision of cases pertaining to administrative law. The
general principle that no hearing need be given when the function being discharged is legislative may be
given a go by when the court feels that the circumstances are such that it should adopt a somewhat liberal
approach in the matter of procedural safeguards to the affected persons.
This, of course, raises a more fundamental question, that is, whether today when the authorities exercise a
mixed bag of functions, a differentiation of functions into legislative, administrative and quasi-judicial is a
viable proposition, and whether the question of procedural safeguards and other matters should be decided
on a priori formalistic and conceptual basis, or rather on the basis of an approach which is based on the
merits of each situation. In the weaker sections' case, by-passing the sterile, theoretical or formalistic
18 18
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argument, the court gave relief to the affected poor persons by way of procedural safeguards as they
deserved it in the specific fact-situation.
These pronouncements make the system of Indian administrative law into a modern and progressive system
capable of meeting the needs of a modern, developing and progressive society. Reference will be made to
these cases at various places in the following text23.
1 As to 'delegated legislation' see [005.009] and following.
2 As to adjudicative power see [005.143] and following.
3 As to administrative power, see [005.172] and following.
4 As to the publication of delegated legislation see [005.037].
5 As to the principle of natural justice see [005.054] and following.
6 See, for example, Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND
1980 SC 92] [LNIND 1980 SC 92], Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur (1980) 2 SCC 295 [LNIND 1980
SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92], Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur (1980) All LJ 401;
Bates v Lord Hailsham [1972] WLR 1372.
As to the text of these and other cases, see MP Jain, 'Cases and Material on Indian Administrative Law'(vol 1) pp 284, 626.
7 As to the rule of law see [005.003].
9 As to the concept of mala fides, see, [005.189] and following.
11 As to 'sub-delegation' see [005.202] and following.
12 Constitution of India art 324 establishes the election commission and lays down its functions. As to election commission: see
Jain Indian Constitution of India Lawch 19. See also[125]ELECTIONS.
13 'A distinction often made between legislative and administrative acts is that between the general and the particular. .'A
legislative act is the creation and promulgation of a general rule of conduct without reference to particular cases; an
administrative act cannot be exactly defined, but it includes the adoption of a policy. The making and issue of a specific
direction, and the application of a general rule to a particular case in accordance with the requirements of policy or expediency
or administrative practice': Desmith, 'Judicial Review of Administrative Action' (1980)p 71.
14 An adjudicative or quasi-judicial function is one which is discharged following the principles of natural justice: see below
[005.151].
15 As to tribunals see [005.211].
16 Constitution of India arts 32 and 226.
17 Constitution of India art 136.
18 The Government of India appointed a statutory wage board to fix the wages of working journalists. The board consisted of an
equal number of persons appointed by the government representing employers and employees with an independent person as
chairman.
The Supreme Court considered the question of the nature of a wage board at length in Express Newspapers (Pvt) Ltd v Union
of India AIR 1958 SC 578 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25], Express Newspapers (Pvt) Ltd v
Union of India [1959] SCR 12 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25], Express Newspapers (Pvt) Ltd v
Union of India (1958) SCJ 1113, but, after taking note of the various arguments on both sides, the Court left the matter open
without giving a final decision.
19 See Dwarka Prasad Laxmi Narain v State of Uttar Pradesh AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1]
[LNIND 1954 SC 1], Dwarka Prasad Laxmi Narain v State of Uttar Pradesh [1954] SCR 803 [LNIND 1954 SC 1] [LNIND 1954
SC 1] [LNIND 1954 SC 1], Dwarka Prasad Laxmi Narain v State of Uttar Pradesh (1954) SCJ 238 [LNIND 1954 SC 1] [LNIND
1954 SC 1] [LNIND 1954 SC 1]; Diwan Sugar Mills (Pvt) Ltd v Union of India AIR 1959 SC 626 [LNIND 1959 SC 10] [LNIND
1959 SC 10] [LNIND 1959 SC 10], Diwan Sugar Mills (Pvt) Ltd v Union of India [1959] Supp 2 SCR 123, Diwan Sugar Mills
(Pvt) Ltd v Union of India (1959) SCJ 663; Premier Automobiles Ltd. v Union of India AIR 1972 SC 1690 [LNIND 1971 SC 596]
19 19
Page
[LNIND 1971 SC 596] [LNIND 1971 SC 596], Premier Automobiles Ltd. v Union of India (1972) 4 SCC (N) 1, Premier
Automobiles Ltd. v Union of India [1972] 2 SCR 526 [LNIND 1971 SC 596] [LNIND 1971 SC 596] [LNIND 1971 SC 596].
20 Saraswati Industrial Syndicate v Union of India AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974
SC 257], Saraswati Industrial Syndicate v Union of India (1974) 2 SCC 59, Saraswati Industrial Syndicate v Union of India
[1988] Supp 1 SCR 627: 'price fixation is more in the nature of a legislative measure even though it may be based upon
objective criteria. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the
price. Nevertheless, the criterion adopted must be reasonable.'
21
The question of the nature of the price-fixing function has been considered by the Supreme Court in-depth in Union of India v
Cynamide India Ltd AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990], Union of India v
Cynamide India Ltd (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990], Union of India v
Cynamide India Ltd [1987] 2 SCR 841 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] in the context of a
price fixing order issued under the Drugs (Price Control) Order 1979. The Supreme Court characterised the price-fixing function
as legislative and, thus, denied that it would be necessary for the drug controller to give a hearing to the various parties affected
by such an order.
The court has noted that 'the distinction between the legislation and the administration is disappearing into an illusion with the
proliferation of delegated legislation' and so it is 'difficult in theory and impossible in practice' to draw a distinct line between
legislative and administrative functions. Nevertheless, such a distinction has to be made for deciding whether natural justice
applies in such a situation. The court has laid down the following test for drawing such a distinction: 'A legislative act is the
creation and promulgation of a general rule of conduct without reference to particular cases, an administrative act is the making
and issue of a specific direction or the application of a general rule to a particular case in accordance with the requirements of
policy. Legislation is process of formulating a general rule of conduct without reference to particular cases and usually operating
in future, administration is the process of performing particular acts of issuing particular orders or of making decision which
apply general rules to particular cases.'
In the above observation, the court refers to both aspects of a legislative act--generality and futurity. As regards the latter
aspect, the court has observed further that while 'adjudication is determinative of the past and the present' facts and decides
rights and liabilities, 'legislation is indicative of the future' course of action. Thus, generality and prospectivity distinguish a
legislative from an administrative/quasi-judicial act.
Holding the price fixation order in the instant case as legislative, the court stated that 'price fixation does not concern itself with
the interests of an individual manufacturer or producer. It is generally in relation to a particular commodity or class of
commodities or transactions. It is a direction of a general character, not directed against a particular situation, it is intended to
operate in the future. It is conceived in the interests of general consumer public. The right of the citizens to obtain essential
articles at fair prices, and the duty of the state to so provide them are transformed into the power of the state to fix prices and
the obligation of the producer to charge no more than the price fixed.' Thus, the court ruled that 'price fixation is a legislative
activity and the question of observing principles of natural justice does not arise.'
22
Union of India v Cynamide India Ltd AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990],
Union of India v Cynamide India Ltd (1987) 2 SCC 720 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990],
Union of India v Cynamide India Ltd [1987] 2 SCR 841 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]: The
two major considerations which ought to enter any price-fixing exercise are: cost of production to a producer; the margin of
profit which ought to be allowed to him. Fairness requires that both these matters ought not to be determined without giving a
hearing to the producer.
In the Drugs (Price Control) Order 1979, there was a clause authorising the government to make such inquiry, as it thinks fit,
before issuing the price order. The court refused to treat it as an inquiry according to the principles of natural justice. According
to the court, it only meant an inquiry to enable the government to obtain relevant information from any source and was not
intended to vest any right in any one. It only meant an inquiry leading to legislative activity.
The Drugs (Price Control) Order 1979 was made by the Central Government in exercise of its power under the Essential
Commodities Act 1955. The Central Government issued notifications under the Drugs (Price Control) Order 1979para 3 fixing
the maximum prices at which the indigenously manufactured bulk drugs could be sold by the manufacturers. Notifications fixing
the retail prices of the formulations were also issued. The Delhi High Court struck down these notifications on the ground of
failure to observe natural justice. The Central Government appealed to the Supreme Court against the High Court decision. It,
thus, became necessary for the Supreme Court to determine the nature of the price-fixing function for natural justice does not
apply to a legislative function.
The Essential Commodities Act 1955 has generated a lot of administrative process in India. For this purpose, see, M P Jain,
'Administrative or Process under the Essential Commodities Act 1955'.
The test laid down by the Supreme Court is analogous to the one laid down in the USA. Two tests have been propounded in the
USA to identify a legislative function. One is the test of applicability, ie, legislative function is normally directed towards the
formulation of requirements having a general application to all members of a broadly identifiable class. As against this, an
20 20
Page
administrative decision is one which applies to specific individuals or situations.
Another test applied is that a rule prescribes a future pattern while an administrative decision determines liability on the basis of
past or present facts. The Administrative Procedure Act 1946 emphasises upon the test of futurity. The key factor in the
definition given in the Administrative Procedure Act 1946 of a rule is that of 'future effect'.
See, Schwartz, ' Administrative Law: A Case-book (1988) pp 229-240.
It may be of interest to know that the Delhi High Court had in Union of India v Cynamide India Ltd AIR 1987 SC 1802 [LNIND
1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990], Union of India v Cynamide India Ltd (1987) 2 SCC 720 [LNIND
1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990], Union of India v Cynamide India Ltd [1987] 2 SCR 841 [LNIND
1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990] taken the view that since the existing drug prices were being
changed causing loss to the manufacturers, they ought to have been given a hearing before deciding upon the final drug prices.
Therefore, the High Court quashed the price-fixing order on the ground of failure to observe the principles of natural justice. The
dichotomy of views between the Supreme Court and High Court shows the difficulty of characterising a function. In the view of
this author, the High Court's view was more rational than that of the Supreme Court which adopted a formalistic approach.
State of Uttar Pradesh v Renusagar Power Co AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988
SC 619], State of Uttar Pradesh v Renusagar Power Co (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND
1988 SC 619], State of Uttar Pradesh v Renusagar Power Co [1988] Supp 1 SCR 627 (a company sought exemption from
payment of electricity duty on self-generated electricity used for its own consumption. The Court ruled that such a power of
exemption would be quasi-judicial in nature and the government should give a hearing to the applicant company before
deciding the matter). On the other had, in Bakul Cashew Co v Sales Tax Officer, Quilon AIR 1987 SC 2239 [LNIND 1986 SC
72] [LNIND 1986 SC 72] [LNIND 1986 SC 72], Bakul Cashew Co v Sales Tax Officer, Quilon (1986) 3 SCC 459, Bakul Cashew
Co v Sales Tax Officer, Quilon [1978] 3 SCR 293 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978 SC 69], an exemption
order of a general nature was held to be legislative in nature.
In Saraswati Industrial Syndicate v Union of India AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974
SC 257], Saraswati Industrial Syndicate v Union of India (1974) 2 SCC 59, Saraswati Industrial Syndicate v Union of India
[1988] Supp 1 SCR 627, the Central Government had issued a notification under the Sugar (Control) Order 1966 fixing
ex-factory prices of sugar for sugar factories specified therein. Under the Sugar (Control) Order 1966, the government in fixing
the price of sugar had to give regard to the costs given in the Report of the Sugar Inquiry Commission and subsequent rise in
the cost of production. The Supreme Court did not regard the function of price fixing as quasi-judicial although it held that the
criterion to fix prices must be reasonable.
'Price fixation is more in the nature of legislative measures even though it may be based upon objective criteria found in a report
or other material. It could not, therefore, give rise to a complaint that a rule of natural justice has not been followed in fixing the
price. Nevertheless, the criterion adopted must be reasonable.'
Similarly, in Prag Ice and Oil Mills v Union of India AIR 1978 SC 1296 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978
SC 69], Prag Ice and Oil Mills v Union of India (1978) 3 SCC 459 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978 SC
69], Prag Ice and Oil Mills v Union of India [1978] 3 SCR 293 [LNIND 1978 SC 69] [LNIND 1978 SC 69] [LNIND 1978 SC 69], a
statutory order fixing the sale price of mustard oil was regarded legislative and not quasi-judicial.
On fixation of price of sugar, see also Laxmi Khandsari v State of Uttar Pradesh AIR 1981 SC 873 [LNIND 1981 SC 140]
[LNIND 1981 SC 140] [LNIND 1981 SC 140], Laxmi Khandsari v State of Uttar Pradesh (1981) 2 SCC 600 [LNIND 1981 SC
140] [LNIND 1981 SC 140] [LNIND 1981 SC 140], Laxmi Khandsari v State of Uttar Pradesh [1981] 3 SCR 92 [LNIND 1981 SC
140] [LNIND 1981 SC 140] [LNIND 1981 SC 140]; Shri Sitaram Sugar Co Ltd v Union of India AIR 1990 SC 1277 [LNIND 1990
SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152], Shri Sitaram Sugar Co Ltd v Union of India (1990) 3 SCC 223 [LNIND
1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152], Shri Sitaram Sugar Co Ltd v Union of India [1970] 1 SCR 909.
In Premier Automobiles Ltd v Union of India AIR 1972 SC 1690 [LNIND 1971 SC 596] [LNIND 1971 SC 596] [LNIND 1971 SC
596], Premier Automobiles Ltd v Union of India (1972) 4 SCC (N) 1, Premier Automobiles Ltd v Union of India [1972] 2 SCR 526
[LNIND 1971 SC 596] [LNIND 1971 SC 596] [LNIND 1971 SC 596]. the Supreme Court suggested the appointment of a
commission for the purpose of suggesting a fair price for the cars manufactured by the three manufacturers in India after taking
all relevant matters into consideration.
Recently in Rayalseema Paper Mills Ltd v Government of Andhra Pradesh AIR 2002 SC 3699 [LNIND 2002 SC 661] [LNIND
2002 SC 661] [LNIND 2002 SC 661], Rayalseema Paper Mills Ltd v Government of Andhra Pradesh (2003) 1 SCC 341 [LNIND
2002 SC 661] [LNIND 2002 SC 661] [LNIND 2002 SC 661], Rayalseema Paper Mills Ltd v Government of Andhra Pradesh
(2002) 8 JT 361, the Supreme Court has confirmed that a price- fixing order is of legislative nature and, as such, it is not subject
to the rules of natural justice.
23
Scheduled Caste & Weaker Section Welfare Association (Regd) v State of Karnataka AIR 1991 SC 1117 [LNIND 1991 SC 180]
[LNIND 1991 SC 180] [LNIND 1991 SC 180], Scheduled Caste & Weaker Section Welfare Association (Regd) v State of
Karnataka (1991) 2 SCC 604 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180], Scheduled Caste & Weaker
Section Welfare Association (Regd) v State of Karnataka [1991] 1 SCR 974 [LNIND 1991 SC 180] [LNIND 1991 SC 180]
[LNIND 1991 SC 180]. First a notification was issued declaring an area as a slum clearance area. This was a step in the
21 21
Page
direction of improvement of the conditions of slum-dwellers, and, hence, it was beneficial to these persons.
Later another notification was issued cancelling the earlier notification. The later notification was quashed by the Supreme Court
on the ground that by rescinding the earlier notification, it adversely affected the slum dwellers and as such the slum dwellers
deserved to be heard before rescinding the earlier notification. Rescission of the earlier notification meant that no development
would take place in the slum area in question.
The later notification could very well be regarded as legislative in nature as it was of general applicability and affected a large
number of slum dwellers. It was also of future operation. However, in the instant case, the court did not at all go into the
question whether the notification was legislative or administrative in nature; it just quashed it on the ground of failure of natural
justice. The raison d'etre of the Supreme Court ruling seems to be that it was the weaker section of the society (slum dwellers)
which would have been adversely affected by the impugned order, and the court was very solicitous for the rights of such
people.
Also see KI Shephard v Union of India AIR 1988 SC 686 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC
1008], KI Shephard v Union of India (1987) 4 SCC 431 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008],
KI Shephard v Union of India [1988] 1 SCR 188 [LNIND 1987 SC 1008] [LNIND 1987 SC 1008] [LNIND 1987 SC 1008]; KI
Shephard v Union of India Jain, Cases, I, 23, 586; HL Trehan v Union of India AIR 1989 SC 568 [LNIND 1988 SC 557] [LNIND
1988 SC 557] [LNIND 1988 SC 557], HL Trehan v Union of India (1989) 1 SCC 764 [LNIND 1988 SC 557] [LNIND 1988 SC
557] [LNIND 1988 SC 557], HL Trehan v Union of India [1988] Supp 3 SCR 925; State of Assam v Bharat Kala Bhandar Ltd
AIR 1967 SC 1766 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND 1967 SC 123], State of Assam v Bharat Kala Bhandar
Ltd [1967] 3 SCR 490 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND 1967 SC 123], State of Assam v Bharat Kala
Bhandar Ltd (1968) 1 Lab LJ 25 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND 1967 SC 123].

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(1) INTRODUCTION/[005.009] Introduction
[005.009] Introduction The bulk of the legislation is promulgated by administrative authorities and it is
known as 'delegated legislation'.
Usually, the legislature enacts a law covering only the general principles and policies relating to the subject
matter in question, and confers rule-making power on the government, or on some administrative agency.
The technique of delegated legislation is so extensively resorted to in modern times as a process of
government that there is not a single statute passed by the legislature today which does not delegate some
power of legislation to the executive.
In no democratic country presently does the legislature monopolise the whole of the legislative power; it
shares this power with the government and other administrative agencies.
The term 'delegated legislation' is used in two different senses:
(1) the exercise by a subordinate agency of the legislative power delegated to it by the legislature,
or
(2) the subsidiary rules themselves which are made by the subordinate agency in pursuance of
the power as mentioned in (1).
An administrative lawyer is more interested in the 'technique', that is, former rather than the latter.
In India, the institution of delegated legislation is as pervasive as in any other democratic country. The term
employed is 'subordinate legislation'; it conveys the idea that the authority making the legislation is
subordinate to the legislature. The technique of delegated legislation is very extensively used1.
Delegated legislation is designated by several names, such as, rules, regulations, bye-laws, orders, etc,
though the term 'rules' is more commonly employed to denote the delegated legislation churned out by
government departments.
The terms 'regulations2' and 'bye-laws' are usually used to denote the legislation framed by statutory
22 22
Page
corporations under delegated legislative power3. Generally, in respect of these corporations there are two
levels of delegated legislation: the government itself has power to promulgate 'rules' and, accordingly, to
distinguish the government-made rules from what the corporation itself may make, a different terminology
(regulations) is used for the latter. Sometimes, the term 'order' is used to designate delegated legislation4.
1 Two illustrations will suffice to denote this point.
The Imports and Exports (Control) Acts 3 authorises the Central Government to prohibit or restrict the import or export of goods
of any specified description by order. The Central Government has built up a vast mechanism of import and export licensing
through delegated legislation promulgated under the statute.
Under the Essential Commodities Act 1955, the central and state governments have promulgated a large number of order and
rules. The Essential Commodities Act 1955 in itself is a small piece of legislation containing only 16 sections, but the crucial
provision is s 3. Under it the government carries on the whole operation of control, regulation, production, movement, supply,
sale, and prices of a number of commodities.
See also Indian Law Institute, 'Administrative Process under the Essential Commodities Act 1955' (1964).
2 Thus, the power to make bye-laws by the respective statutory authority is to be found, inter alia, in the following statutes: The
Coir Industry Act 1953; The Tea Act 1953; and The Delhi Municipal Corporation Act 1957.
3 As to public sector undertakings see [005.307] and following.
An example of promulgating delegated legislation through 'orders' is furnished by the Imports and Exports (Control) Act 1947.
At times, a statute may use several terms to denote delegated legislation made thereunder. For instance, in the Income Tax Act
1961, the powers to issue 'orders', 'notifications' and 'rules' are spread over a number of sections, eg, a general power to make
rules for several matters is conferred on the Central Board of Direct Taxes by the Income Tax Act 1961 s 295; under the Income
Tax Act 1961 ss 121-124 distribution and allocation of work to be performed by various tax authorities may be made through
'orders'; further, under the Income Tax Act 1961 s 80J (7), the Central Government through a 'notification' in the official gazette
may take away an exemption granted under the section from certain newly established undertakings; and s 80K the 'rules' with
reference to tax on dividend from newly established undertakings or hotels.
The Essential Commodities Act 1955 uses three terms--order, notified order and notification--which the Central Government
can make in exercise of its delegated legislative powers under the Essential Commodities Act 1955.

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(1) INTRODUCTION/[005.010] Factors leading to
growth of delegated legislation
[005.010] Factors leading to growth of delegated legislation A number of factors have been responsible
for the growth of delegated legislation in the modern democratic state1.
In India, since independence, the government is endeavouring to evolve a socialistic pattern of society
through democratic means which involves massive planning and control of various activities, especially
private trade and commerce.
The demand for law, which is practically insatiable, generates pressure of work on the legislature which not
only makes laws but also discharges such other functions as supervising the government, discussing and
influencing its policies, discussing proposals for taxation and expenditure, ventilating people's grievances
and the like2.
The legislature confines itself to laying down broad policies and principles in the legislation it enacts and
leaves the task of shaping and formulating details to the concerned administrative agency.
23 23
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Further, since most of the present day activities of the state relate to socio-economic matters, legislation
tends to be quite technical and complex and expert knowledge is required to work out the details to fully
implement the policy in view. This can be done better by specialists in the administration rather than by
legislators who are mostly generalists and not experts in these matters.
The system of delegated legislation has become popular because it has the advantages of flexibility,
elasticity, expedition and opportunity for experimentation.
A modern society is faced with occasions when a sudden need for legislative action is felt. There may be
threats of aggression, breakdown of law and order, strikes and the like. Such situations cannot be met
adequately unless the executive has standby powers. It is, therefore, a desirable expedient to pre-arm the
government with necessary powers to take action at a moment's notice by promulgating the needed rules
and regulations3.
The Supreme Court of India has mentioned the following as the dominant reasons for giving powers of delegated legislation to
the government:
(1) the area for which powers are given to make delegated legislation may be technically complex, so much so,
that it may not be possible and may even be difficult to set out all the permutations in the statute.
(2) the executive may require time to experiment and to find out how the original legislation was operating and
thereafter to fill up all other details.
(3) it gives an advantage to the executive, in the sense that a government with an onerous legislative time
schedule may feel tempted to pass skeleton legislation with the details being provided by the making of rules
and regulations.
See, Agriculture Market Committee v Shalimar Chemical Works Ltd AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC 1759]
[LNIND 1997 SC 1759], Agriculture Market Committee v Shalimar Chemical Works Ltd (1997) 5 SCC 516 [LNIND 1997 SC 1759]
[LNIND 1997 SC 1759] [LNIND 1997 SC 1759], Agriculture Market Committee v Shalimar Chemical Works Ltd (1997) 5 JT 272.
2 For functions of the legislatures in India, see, Jain, 'Indian Constitutional Law'chs 2 and 6.
3 Wade and Phillips, 'Constitution of India n Law' (1965)p 608: delegated legislation fulfils the need of modern times that
something less cumbrous and more expeditious than an act of parliament shall be available to amplify the main provisions, to
meet unforeseen contingencies and to facilitate adjustments that may be called for after the scheme has been put into
operation.

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(1) INTRODUCTION/[005.011] Need for
safeguards
[005.011] Need for safeguards Legislations are passed in skeleton form containing only the minimum of
general principles and thus, leaves the task of not only laying down details but even the task of formulating
and determining policies and principles relating to the subject of legislation to executive.
The legislature often uses wide, subjectively worded provisions, giving power to the delegate to make such
rules as appear to it to be necessary or expedient for the purposes of the Act without laying down any
standards to guide the discretion of the delegate. The executive, thus, becomes very powerful as it secures
powers to affect the life, liberty and property of individuals.
In case of legislation, there are several democratic safeguards available. Legislation, thus, keeps in harmony
with the public sentiment. However, these salient democratic safeguards are not available in the case of
delegated legislation which is drafted in government chambers by some anonymous civil servant and
promulgated all of a sudden without much publicity or notice. No one may come to know anything about it
24 24
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until it is notified. There may be no public discussion, no press criticism and no public opinion on it.
Therefore, though the technique of delegated legislation has definite advantages, it has become generally
acceptable, and the exigencies of modern government make its use necessary, yet the dangers inherent in
its indiscriminate use ought not to be lost sight of. Rights of the people can be as vitally affected by
delegated legislation as by primary legislation by the legislature itself.
The basic problem, therefore, in the area of delegated legislation is that of designing suitable controls and
safeguards so that the advantages of the technique of delegated legislation may be available, while the
dangers and risks of abuse inherent therein may be minimised.
The focus of the inquiry is, thus, shifted from the question of desirability of delegated legislation to that of its
control and safeguards. The question today is not whether there should be delegated legislation, but subject
to what safeguards it should be resorted to.
The controls over delegated legislation operate at two levels which may be characterised as: (1) pre-natal;
and (2) post-natal controls. First, the control may operate at the point of delegation of power by the
legislature. The question here is how much power should the legislature be permitted to delegate and should
the legislature be free to delegate any amount of legislative power to the administration, or conversely,
should there be some restraints on the legislature in this respect.
Secondly, a control mechanism may be devised to operate at the point of exercise of delegated power by the
administration. The question here is subject to what restraints and safeguards should the delegate function in
exercising the delegated legislative powers and what control mechanism should be put into being so as to
minimise the hazards of the technique of delegated legislation.
It may be noted that both levels of controls are supplementary to each other. The efficacy of the controls at
the second stage, ie post-natal controls to a large extent, depends upon the controls at the first stage, that is,
pre-natal control.
If the legislature confers power in very broad terms, its exercise by the delegate cannot be effectively
controlled later. If the legislature confers power subject to certain norms and standards, then the exercise of
the power can be tested in the light of those norms, and any deviation from these norms by the delegate may
be checked by voiding the delegated legislation produced by the delegate by applying the doctrine of ultra
vires1. It is, thus, necessary for the legislature to define in the statute the precise limits of the law making
power which the Parliament seeks to confer on the administration.
1 As to the doctrine of ultra vires see [005.022] and following.

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(1) INTRODUCTION/[005.012] Restraints on
delegation of legislative power
[005.012] Restraints on delegation of legislative power The principle of sovereignty of Parliament prevails
in Britain which implies that Parliament has unlimited power to make any law, and the courts cannot question
a parliamentary law on any ground. This means that Parliament can delegate any amount of legislative
power to an administrative agency. Therefore, in Britain, no restriction exists on the capacity of Parliament to
confer its law-making powers on anybody it pleases and to any extent it pleases. It is not necessary for
Parliament to insert any standard, policy, or norm in a delegating statute for guiding the delegate in
exercising the power conferred on him. The delegate can be left free to draft delegated legislation in any way
and to evolve his own policy or standards in exercising the delegated power. Parliament should not confer
power in too broad or general terms and that it should define the limits of the power being delegated, or
25 25
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define the norms or standards in the enabling statutes, subject to which the delegated power may have to be
exercised, so that the delegate is not left free to use the power as he likes but may be restrained from
misapplying the power. However, in Britain, the remedy lies in the hands of Parliament itself, it can control
the delegation of power by it, if it so pleases and there is no external agency to compel Parliament to do so.
The position in India in this respect is very different from that which prevails in Britain. Unlike Britain, India
has a written Constituition which is regarded as the supreme law of the land. Parliament functions under
Constitutional restraints, whereas the British Parliament is regarded as a sovereign, that is, subject to no
legal limitations. However, India and Britain have one thing in common, that is, the parliamentary form of
government which is based on co-operation of the executive and legislative wings. Further, India differs from
Britain in one very vital respect, that is, in India, the courts enjoy the power of judicial review of legislation.
This means that the courts can declare a law unconstitutional whereas the courts enjoy no such power in
Britain.
There are certain common Constitutional features between USA and India, for instance, both have written
Constitutions and both have judicial review of legislation. However, then they also differ in one very vital
respect, that is, the USA has the presidential form of government which is based on the doctrine of
separation of powers, but India has a parliamentary form of government which is based on the principle of
cooperation and not of separation, between the two organs, that is, executive and legislative organs.
In the area of delegated legislation, in USA, there prevails the doctrine of excessive delegation of legislative
power which envisages that when Congress delegates legislative power on the administration, it should not
delegate uncontrolled power; it should not give a blank cheque to the administration, but the Congress
should itself lay down standards or policies for the guidance of the delegate. The Congress should not
abdicate its legislative functions and, therefore, if the Congress transfers the essential legislative functions
with which it is vested to others, the statute would be declared unconstitutional. Therefore, the courts insist
that the Congress should itself lay down the policy regarding the subject matter of legislation, and only the
power to lay down details to effectuate that policy may be delegated to the administration. Thus, in the USA,
the courts draw the line beyond which Congress cannot delegate legislative power to the administration1.
The position in the USA is, thus, very different from that prevailing in Britain.
1 The test, in the words of Justice Cardozo, is that to uphold the delegation there is need to discover in terms of the Act, a
reasonably clear standard whereby the discretion must be governed. See Panama Refining Co v Ryan 293 US 388 at 434
(1935): the Congress authorised the President to ban oil in interstate commerce produced in excess of the quota fixed by each
state. There was no requirement, no definition of circumstances and conditions in which the transportation of oil was to be
allowed or prohibited. This is popularly known as the 'Hot Oil Case'. See also Carter and Carter Coal Co v 298 US 238 (1936).
There are not many cases where the US Supreme Court may have declared congressional legislation unconstitutional because
of excessive delegation of power. The basic proposition that Congress cannot delegate legislative power without prescribing
standards, but whether this test is satisfied or not is a matter on which the Supreme Court has adopted a liberal attitude still
prevails. The doctrine has never been repudiated by the court, but in its practical applications, the Court has adopted a very
flexible approach. See, Yakus v US 321 US 414 (1944); Lichter v US 334 US 742 (1948); US v Robel 389 US 258 (1967);
National Cable Television Association v US 415 US 336 (1974); Federal Energy Administration v Algonquin SNG Inc 426 US
458 at 559 (1976).

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(2) PRINCIPLES/[005.013] Doctrine of excessive
delegation
[005.013] Doctrine of excessive delegation The Indian legislature cannot delegate unrestrained and
unqualified legislative power to an administrative authority. The doctrine of excessive delegation envisages
that 'excessive delegation may amount to abdication', and 'delegation unlimited may invite despotism
uninhibited.' So, the principle is that a legislature may not delegate its essential legislative function.
26 26
Page
The legislature must lay down policy, principle or standard in the statute subject to which the delegate could
legislate. Therefore, a legislature can delegate legislative power to the administration subject to the condition
of laying principles, standards and policy within the parent statute subject to which the delegate is to exercise
his legislative power. If the legislature fails to do so then the law made by it will be bad1.
If there is an abdication of legislative power, or there is excessive delegation, or if there is a total surrender or
transfer by the legislature of its legislative functions to another body then that is not permissible. There is,
however, no abdication or surrender of legislative functions or excessive delegation, as the legislature has
expressed its will on a particular subject matter, indicated its policy and left its effectuation to subordinate
legislation, provided the legislature has retained control in its hand with reference to it so that it can act as a
check or a standard and prevent or undo the mischief by subordinate legislation when it chooses or thinks fit.
A legislature can entrust power to make delegated legislation to another body of its choice but the legislature
should, before delegating the power, enunciate the policy and the principles for the guidance of the delegate,
either expressly or by implication.
The guidance may be found anywhere in the statute'in the express provision empowering delegation, or
other provisions of the statute, the preamble, the scheme, or even the subject matter of the statute.
Therefore, whenever a statute is challenged on the ground of excessive delegation, it becomes necessary
for the court to examine the statute to find out if there were any discernible guidelines for exercise of the
power of delegated legislation. If, on a liberal interpretation of the statute, a legislative policy and guidelines
for its execution are brought out, the statute will be upheld as valid.
However, the court has warned that the rule of liberal construction should not be carried by the court 'to the
extent of always trying to discover a dormant or latent legislative policy to sustain an arbitrary power
conferred on the executive.' If such an approach were to be adopted then the doctrine of excessive
delegation will become effete and serve no purpose in the scheme of things, and the legislature will get back
its power to confer unlimited power of delegated legislation3.
While the British Parliament can delegate as much power as it likes, a legislature in India cannot delegate a
legislative power. While delegating legislative power, the legislature should lay down legislative policy,
standards or guidelines for the delegate to follow. To some extent, procedural safeguards laid down in the
law may make up for the lack of legislative policy. The courts can declare too broad a delegation of
legislative power as invalid4.
The doctrine of excessive delegation in India may be regarded as congruent with that in USA. The difference
between the two models, however, is that while in USA, the doctrine is based on the theory of separation of
powers between the execution and the legislature; in India it is based on the theory of Constitution's faith in
the legislature.
In applying the test of 'excessive delegation', apart from considering the breadth of the discretion conferred
by an Act to promulgate delegated legislation, the courts also examine the procedural safeguards contained
in the Act against misuse of power5.
At times, when delegated power is in broad terms, and the standards laid down too general, the courts may
uphold delegation if the statute concerned prescribes some procedural safeguards for the delegate to
observe, eg consultation with the persons affected6.
The principle of excessive delegation has been invoked in India in a large number of cases to test the validity
of the statutory provisions delegating legislative power7.
Usually, the courts tend to uphold the validity of delegation of legislative power8. It is rarely that the courts
will strike down a provision on the grounds of excessive delegation. There are only a few cases in which the
courts have failed to discern the policy of the parent statute and/or any procedural safeguards therein and
consequently, have declared the delegation invalid9.
The effect of the doctrine of excessive delegation is that the delegate who has been authorised to make
subsidiary rules and regulations has to work within the scope of his authority and cannot widen or constrict
27 27
Page
the scope of the parent Act delegating power to him, or the policy laid down in the parent Act10.
The Constitution of India is neutral on the point. There is nothing in the Indian Constitution either expressly prohibiting or
permitting the legislature to delegate legislative power to the administration.
Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC
40] [LNIND 1951 SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re [1951] SCR 747 [LNIND 1951 SC
40] [LNIND 1951 SC 40] [LNIND 1951 SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re (1951) SCJ
527 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40] (popularly known as the Delhi Laws Act) (the legislature
should not delegate its essential legislative function which comprise the formulation of policy and enacting it into a binding rule
of conduct).
The Supreme Court propounded, in the instant case, that the legislature being the creature of the Constitution of India, and the
Constitution makers having placed their confidence in the collective wisdom of the legislature, it is inevitable that the legislature
itself should discharge the essential legislative functions. This means that the legislature should lay down standards or policy in
the delegating Act and the delegate may be left with the power to execute the policy laid down by the legislature.
Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC
40] [LNIND 1951 SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re [1951] SCR 747 [LNIND 1951 SC
40] [LNIND 1951 SC 40] [LNIND 1951 SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re (1951) SCJ
527 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40] has achieved two significant ends in Indian Administrative
Law.
(1) it legitimises delegation of legislative power by the legislature to the executive or the administrative bodies;
(2) it imposes an outer limit on delegation by the legislature. No Indian legislature can delegate unlimited
legislative power to an administrative authority. The courts can declare too broad delegation of legislative
power as excessive and hence invalid.
Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40]
[LNIND 1951 SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re [1951] SCR 747 [LNIND 1951 SC 40] [LNIND
1951 SC 40] [LNIND 1951 SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re (1951) SCJ 527 [LNIND 1951
SC 40] [LNIND 1951 SC 40] [LNIND 1951 SC 40] arose in the following fact situation. There were a few Part C States, Delhi being one
of them. These States were under the direct administration of the Central Government and had no legislature of their own. So,
Parliament had to legislate for those States.
As Parliament found it very difficult to find the necessary time to legislate for these States because of its manifold engagements,
Parliament passed a law, known as the Part C States (Laws) Act 1950, authorising the Central Government to extend to any Part C
State, with such restrictions and modifications as it thought fit, any enactment in force in a Part A State, and while doing so it could
repeal or amend any corresponding law (other than a central law) which might be operative at the time in the Part C State concerned.
Undoubtedly, it was a very sweeping kind of delegation. The Central Government could extend to a Part C State any law made by a
State Legislature (and not by Parliament), at any time (not only laws prevailing in 1950 but even those made subsequently), and even
modify the law before extension. And if there was already a law in force in the Part C State on the point it could either be repealed or
modified when the law was being extended.
The Supreme Court was called upon to adjudge the validity of this provision. By a majority, the specific provision in question was held
valid subject to two riders:
(1) that part of it was bad which authorised the government to repeal a law already in force in a Part C States;
and
(2) the power to effect modifications in a state law in its application to a Part C State envisaged only such
modifications as did not change the underlying policy of the law sought to be extended.
It was an act of judicial creativity on the part of the Supreme Court of India to adopt the doctrine of 'excessive delegation' in Re Article
143, Constitution of India and Delhi Laws Act (1912) In Re AIR 1951 SC 332 [LNIND 1951 SC 40] [LNIND 1951 SC 40] [LNIND 1951
SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re [1951] SCR 747 [LNIND 1951 SC 40] [LNIND 1951 SC 40]
[LNIND 1951 SC 40],Re Article 143, Constitution of India and Delhi Laws Act (1912) In Re (1951) SCJ 527 [LNIND 1951 SC 40] [LNIND
1951 SC 40] [LNIND 1951 SC 40] in 1950. The doctrine is purely a judgemade doctrine emanating from some of the basic postulates on
which a written, democratic Constitution is based. The underlying motivation was not to let the bureaucracy become all too powerful.
The theoretical justification of this judicial approach is not the principle of separation of powers as in the USA, but the theory that a
legislature in India is the creature of, and functions under, a written Constitution of India and so it cannot enjoy the same freedom as the
British Parliament does in the matter of delegation because of Britain's unwritten Constitution. As to discretionary powers see [005.182].
The court seeks to assess the policy underlying the Act not always within the Act itself but even from factors external to the Act, eg,
history of the legislation. In some cases, a provision for laying the rules before the Houses of Parliament or State Legislature, and
28 28
Page
allowing the Houses to suggest modifications therein, has been used as one of the factors to uphold broad delegation on the premise
that this provision indicated that Parliament/State Legislature has not abdicated its powers and control of the legislature was "sufficient
to check any transgression of permissible limits of delegated legislation by the delegate".
As will be seen later, a simple laying procedure vests no controlling power, in effect, in Parliament over delegated legislation. The court
attributed exaggerated importance to the 'laying' provision just to find a pretence to uphold delegation of legislative power: see Delhi
Cloth and General Mills Co Ltd v Union of India AIR 1983 SC 937 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175],
Delhi Cloth and General Mills Co Ltd v Union of India (1983) 4 SCC 166 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC
175], Delhi Cloth and General Mills Co Ltd v Union of India [1983] 3 SCR 438 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983
SC 175]; Lohia Machines Ltd v Union of India AIR 1985 SC 421 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572],
Lohia Machines Ltd v Union of India (1985) 2 SCC 197 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572], Lohia
Machines Ltd v Union of India [1985] 2 SCR 686 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572]. As to the 'laying'
provision see [005.034].
In Ramesh Birch v Union of India AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654], Ramesh Birch
v Union of India (1989) Supp 1 SCC 430, Ramesh Birch v Union of India [1989] 2 SCR 629 [LNIND 1989 SC 654] [LNIND 1989 SC 654]
[LNIND 1989 SC 654].
Legislative policy may be spelt out from the preamble to the statute: see Sardar Inder Singh v State of Rajasthan AIR 1957 SC
510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], Sardar Inder Singh v State of Rajasthan [1957] SCR 605
[LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], Sardar Inder Singh v State of Rajasthan (1957) SCJ 376
[LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13]; Registrar of Cooperative Societies v K Kunjabmu AIR 1980 SC
350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472], Registrar of Cooperative Societies v K Kunjabmu
(1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472], Registrar of Cooperative Societies v K
Kunjabmu [1980] 2 SCR 260 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979 SC 472].
In Consumer Action Group v State of Tamil Nadu AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND
2000 SC 1130], Consumer Action Group v State of Tamil Nadu (2002) 7 SCC 425 [LNIND 2002 SC 579] [LNIND 2002 SC 579]
[LNIND 2002 SC 579], Consumer Action Group v State of Tamil Nadu (2000) 9 JT 272, the Supreme Court discerned the policy
underlying the Act from the 'preamble' and 'objects and reasons' of the Act.
The theoretical basis on which the doctrine of excessive delegation is founded in India is that the legislature is the creature of
the Constitution of India which confers powers and functions on it. Therefore, it is the duty of the legislature to discharge its
essential legislative function.
The Constitution of India entrusts the legislative power to the cumulative judgment of the legislature. Therefore, the legislature
cannot just delegate the power in its entirety to someone else without exercising its judgment at all. The Constitution of India
has chosen to vest legislative power in the elected representatives of the people and, therefore, they must at least discharge
the essential legislative function themselves and not leave the same to bureaucrats.
The point has been emphasized upon by the Supreme Court per Khanna J as follows: '...Our Constitution makers have
entrusted the power of legislation to the representatives of the people, so that the said power may be exercised not only in the
name of the people but also by the people speaking through their representatives. The rule against excessive delegation of the
legislative authority flows from and is a necessary postulate of the sovereignty of the people. The rule contemplates that it is not
permissible to substitute in the matter of legislative policy the views of the individual officers or other authorities, however,
competent they may be for that of the popular will as expressed by the representatives of the people'.
Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Assistant Commissioner of Sales Tax AIR 1974 SC 1660 [LNIND 1973 SC 418]
[LNIND 1973 SC 418] [LNIND 1973 SC 418], Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Assistant Commissioner of Sales Tax
(1974) 4 SCC 98 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418], Gwalior Rayon Mills Mfg (Wvg) Co Ltd v
Assistant Commissioner of Sales Tax [1974] 2 SCR 879 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418] at
1667.
Harakchand Ratanchand Banthia v Union of India AIR 1970 SC 1453 [LNIND 1969 SC 199] [LNIND 1969 SC 199] [LNIND
1969 SC 199], Harakchand Ratanchand Banthia v Union of India (1969) 2 SCC 166 [LNIND 1969 SC 199] [LNIND 1969 SC
199] [LNIND 1969 SC 199], Harakchand Ratanchand Banthia v Union of India [1970] 1 SCR 479 [LNIND 1969 SC 199] [LNIND
1969 SC 199] [LNIND 1969 SC 199]: Gold (Control) Act 1968 s 5(2)(b), empowered the gold administrator, so far as it appeared
to him to be necessary or expedient for carrying out the purposes of the Act, to regulate the manufacture, distribution, use,
disposal, consumption, etc, of gold. The Supreme Court declared the provision invalid because it was very wide and suffered
from the vice of 'excessive delegation'.
The power of the administrator was not subject to any procedural safeguard while that of the government was, and, thus, the
29 29
Page
power conferred on the former was even broader than that conferred on the government.
6 As to the 'consultation of Interests', see [005.038].
The following case may be cited here to illustrate as to how the principle of excessive delegation operates in practice.
The Punjab General Sales Tax Act 1948, levied a purchase tax on sale of goods except the items or goods mentioned in a
schedule annexed. The State Government, after giving three months' notice, could add to, or delete any goods from, the
schedule. This meant that if the State Government added any item to the schedule, it became tax exempt and if any item was
excluded from the schedule, it became subject to taxation.
The provision empowering the state government to amend the schedule was challenged on the ground of excessive delegation
of legislative power.
The Supreme Court, however, upheld the provision in question in Babu Ram Jagdish Kumaramp;Co v State of Punjab AIR
1979 SC 1475 [LNIND 1979 SC 272] [LNIND 1979 SC 272] [LNIND 1979 SC 272], Babu Ram Jagdish Kumaramp;Co v State of
Punjab (1973) 3 SCC 616, Babu Ram Jagdish Kumaramp;Co v State of Punjab [1979] 3 SCR 952 [LNIND 1979 SC 272]
[LNIND 1979 SC 272] [LNIND 1979 SC 272], on two grounds:
(1) the power to amend schedules to statutes is commonly given to the executive and has been upheld in a
number of previous cases. See Sable Waghire & Co v Union of India AIR 1975 SC 1172 [LNIND 1975 SC
133] [LNIND 1975 SC 133] [LNIND 1975 SC 133], Sable Waghire & Co v Union of India (1975) 1 SCC 763
[LNIND 1975 SC 133] [LNIND 1975 SC 133] [LNIND 1975 SC 133]
(2) The government could make changes in the schedule after giving three months' notice.
This procedure was a check on an arbitrary exercise of power as this means that the government must give prior publicity of its intention
to amend the schedule and also give an opportunity to the interested parties to make representations against the proposed changes. In
the case of a democratic government, this procedure itself acts as a check on arbitrary exercise of power. In this case, delegation of
legislative power was upheld because it was subject to the procedural safeguards of three months' notice.
8 See Brij Sunder Kapoor v First Additional District Judge AIR 1989 SC 572 [LNIND 1988 SC 525] [LNIND 1988 SC 525]
[LNIND 1988 SC 525], Brij Sunder Kapoor v First Additional District Judge (1989) 1 SCC 561 [LNIND 1988 SC 525] [LNIND
1988 SC 525] [LNIND 1988 SC 525], Brij Sunder Kapoor v First Additional District Judge [1988] Supp 3 SCR 558; Ramesh
Birch v Union of India AIR 1990 SC 560 [LNIND 1989 SC 654] [LNIND 1989 SC 654] [LNIND 1989 SC 654], Ramesh Birch v
Union of India (1989) Supp 1 SCC 430, Ramesh Birch v Union of India [1989] 2 SCR 629 [LNIND 1989 SC 654] [LNIND 1989
SC 654] [LNIND 1989 SC 654].
9 B Shama Rao v Union Territory of Pondicherry AIR 1967 SC 1480 [LNIND 1967 SC 39] [LNIND 1967 SC 39] [LNIND 1967
SC 39], B Shama Rao v Union Territory of Pondicherry [1967] 2 SCR 650 [LNIND 1967 SC 39] [LNIND 1967 SC 39] [LNIND
1967 SC 39], B Shama Rao v Union Territory of Pondicherry (1967) (20) STC 215.
10 Agriculture Market Committee v Shalimar Chemical Works Ltd AIR 1997 SC 2502 [LNIND 1997 SC 1759] [LNIND 1997 SC
1759] [LNIND 1997 SC 1759], Agriculture Market Committee v Shalimar Chemical Works Ltd (1997) 5 SCC 516 [LNIND 1997
SC 1759] [LNIND 1997 SC 1759] [LNIND 1997 SC 1759], Agriculture Market Committee v Shalimar Chemical Works Ltd (1997)
5 JT 272. Also see B R Enterprises v State of Uttar Pradesh AIR 1999 SC 1867 [LNIND 1999 SC 517] [LNIND 1999 SC 517]
[LNIND 1999 SC 517], B R Enterprises v State of Uttar Pradesh (1999) 3 JT 431, B R Enterprises v State of Uttar Pradesh
(1999) All LJ 1215.

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(2) PRINCIPLES/[005.014] Conditional legislation
[005.014] Conditional legislation The courts do use the term 'conditional legislation' to denote an extremely
limited kind of delegation of legislative power. When the term 'conditional legislation' is used, it means that
the doctrine of excessive delegation need not apply to assess the validity of delegation, and the courts need
not find the policy underlying the statute in question.
When a legislature enacts a law and authorises an executive authority to bring it into force in such area, or at
such time, as it decides, or to extend the life of the legislation, it is characterised as conditional legislation1.
The court makes reference to the doctrine of conditional legislation from time to time2. A power given to the
30 30
Page
executive to bring an Act into force as also the power conferred upon the government to exempt persons or
properties from the operation of the enactment are both instances of conditional legislation3.
A constant refrain of these cases is that the power conferred does not amount to delegated legislation or
delegation of legislative power as the law made by the legislature is a complete legislation in itself4. Bringing
an Act into force is an important part of legislative process. The will of the legislature can be nullified by the
executive by not bringing the Act into effect.
The term 'conditional legislation' arose in the colonial era of the 19th century when the legislatures in India
were the creatures of British Parliament and, thus, had very limited powers5. However, now that broader
delegation of legislative power has become accepted, there is no longer any need to keep alive an outdated
concept6.
1 See Basant Kumar Sarkar v Eagle Rolling Mills Ltd AIR 1964 SC 1260 [LNIND 1964 SC 52] [LNIND 1964 SC 52] [LNIND
1964 SC 52], Basant Kumar Sarkar v Eagle Rolling Mills Ltd [1964] 6 SCR 913 [LNIND 1964 SC 52] [LNIND 1964 SC 52]
[LNIND 1964 SC 52], Basant Kumar Sarkar v Eagle Rolling Mills Ltd (1964) 2 Lab LJ 105.
2 Jalan Trading Co Private Ltd v Mill Mazdoor Sabha AIR 1967 SC 691 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND
1966 SC 146], Jalan Trading Co Private Ltd v Mill Mazdoor Sabha (1966) 2 Lab LJ 546, Jalan Trading Co Private Ltd v Mill
Mazdoor Sabha [1967] 1 SCR 15 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]; Hamdard Dawakhana v
Union of India AIR 1960 SC 554 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230], Hamdard Dawakhana v
Union of India [1960] 2 SCR 671 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230], Hamdard Dawakhana v
Union of India (1960) SCJ 611 [LNIND 1959 SC 230] [LNIND 1959 SC 230] [LNIND 1959 SC 230]; Tulsipur Sugar Co Ltd v
Notified Area Committee, Tulsipur AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92], Tulsipur
Sugar Co Ltd v Notified Area Committee, Tulsipur (1980) 2 SCC 295 [LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980
SC 92], Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur (1980) All LJ 401; ITC Bhadrachalam Paperboards v
Mandal Revenue Officer (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235].
In Sardar Inder Singh v State of Rajasthan AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13],
Sardar Inder Singh v State of Rajasthan [1957] SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13],
Sardar Inder Singh v State of Rajasthan (1957) SCJ 376 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13], the
Rajasthan Government promulgated an ordinance for two years, but the governor was authorised to extend its life by two more
years by a notification.
The Supreme Court held the power to extend the life of the ordinance valid as an instance of conditional legislation.
The Supreme Court has explained the concept of conditional legislation in State of Tamil Nadu v K Sabanayagam AIR 1998
SC 344 [LNIND 1997 SC 1486] [LNIND 1997 SC 1486] [LNIND 1997 SC 1486].
'...in case of conditional legislation, the legislation is complete in itself but its operation is made to depend on fulfilment of certain
conditions and what is delegated to an outside authority, is the power to determine according to its own judgment whether or
not those conditions are fulfilled. In case if delegated legislation proper, some portion of the legislative power of the legislature is
delegated to the outside authority...'
'The distinction between the two exists is this that whereas conditional legislation contains no element of delegation of
legislative power and is, therefore not open to attack on the ground of excessive delegation, delegated legislative does confer
some legislative power and some outside authority and it is therefore, open to attack on the ground of excessive delegation'.
5 Queen v Burah 5 IA 178; King Emperor v Benoari Lal (1945) 72 IA 57.
6 Lachmi Narain v Union of India AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], Lachmi
Narain v Union of India (1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], Lachmi Narain v

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(3) POWERS/[005.015] Power to modify any Act
31 31
Page
[005.015] Power to modify any Act A statute may, at times, confer on the executive the power to modify or
amend itself by the same statute itself through delegated legislation. The power conferred on the delegate
may be to make 'such modifications' in the parent statute as it likes.
The reason is that if the words such modifications as the delegate 'thinks fit' were to be construed literally
and superficially, they would appear to give an unfettered power of amending and modifying the parent
statute, but such a wide construction would make the formula vulnerable on the ground of excessive
delegation. It amounts to authorising the delegate itself over the judgment of the legislature. Such a literal
interpretation would prima facie make the executive supreme over the legislature, in so far as the executive
can change any provision of the statute enacted by the legislature1.
Therefore, with a view to reconcile the delegation of power to modify the statute with the doctrine of
excessive delegation, the formula evolved by the courts is that while the power to modify the statute may be
conferred on the executive the concerned body subject to two safeguards, that is (1) The Act lays down the
policy subject to which the power is to be exercised, and (2) cannot use the power so as to change the policy
underlying the parent statute, or effect any essential changes therein.
It is for the courts to decide what is the 'essential legislative policy' of the parent statute and whether or not
the impugned delegated legislation changes or infringes the same. The principle is well settled that when a
statute confers the power to modify legislation on the delegate, it does not 'import the power to make
essential changes' in the Act, or any change of principle or policy therein and that it only confers power to
make 'alterations of a minor character'. The delegate is not entitled to make any such changes and
alterations in the parent statute as may change its underlying policy2. The scope of the words 'such
modifications' is confined to alterations of such a character which keep the inbuilt policy, essence and
substance of the parent Act in tact; the delegate can introduce in the Act only peripheral or insubstantial
changes.
1 There are times when to confer such a drastic power on the executive appears to be a practical necessity with a view to
provide for flexibility of approach to cope with the changing circumstances which the Act in question is designed to meet. This
may necessitate making of some modifications in the provisions of the parent Act itself without loss of time. When some
complicated scheme is introduced, it may be thought advisable to confer on the executive itself a power to amend the statute, if
necessary, to meet any difficulties not visualized earlier at the time of the passage of the law. The power is conferred on the
executive because if the matter is taken to the legislature, it may delay the making of necessary changes in the statute as the
legislature is a busy body: State of Madhya Pradesh v Mahalaxmi Fabric Mills Ltd AIR 1995 SC 2213 [LNIND 1995 SC 189]
[LNIND 1995 SC 189] [LNIND 1995 SC 189], State of Madhya Pradesh v Mahalaxmi Fabric Mills Ltd (1995) Supp 1 SCC 642,
State of Madhya Pradesh v Mahalaxmi Fabric Mills Ltd (1995) 3 JT 93.
Bhandudas D Naik v Union of India AIR 1979 Goa 1: an Act imposing sales tax that the goods mentioned in the Schedule
appended to the Act would be exempt from taxation, but that the government can modify the schedule by giving a three months'
notice and, further, that the government can make such modifications in the Act as it thinks fit. The Schedule contained a list of
non-taxable items. The government then sought to modify the clause in the statute concerning amendment of the schedule by
eliminating the requirement of 'three months' notice' from it. The Supreme Court declared the modification ultra vires on the
ground that it changed the 'essential feature' and 'legislative policy' inherent in the Act. The requirement of three months' notice
to amend the schedule was a mandatory provision and a matter of legislative policy because adequate notice to the dealers
was essential so that they could make representations against the proposed change and make necessary adjustments in their
business transactions. This policy could be changed only by the legislature and not the executive.
Lachmi Narain v Union of India AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], Lachmi
Union of India [1976] 2 SCR 785 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465]: when the Act prescribes
the procedure that before a tax is levied by an administrative body, the people will have a right to file objections and be heard.
The executive cannot use its power to modify the Act in a way to do away with the people's right to be heard before tax is
imposed. The policy of the parent Act was to give to the persons concerned an opportunity of making a representation against
levy imposed by the administration. In the instant case, this safeguard was dropped. The tax was imposed without giving the
persons concerned a hearing. The court ruled that this involved a change of policy and therefore, the extension of the section
was ultra vires.
Rajnarain Singh v Chairman, Patna Administration Committee, Patna AIR 1954 SC 569 [LNIND 1954 SC 102] [LNIND 1954
SC 102] [LNIND 1954 SC 102], Rajnarain Singh v Chairman, Patna Administration Committee, Patna [1955] 1 SCR 290 [LNIND
1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102], Rajnarain Singh v Chairman, Patna Administration Committee,
32 32
Page
Patna (1954) SCJ 661 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102].

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(3) POWERS/[005.016] Power to exempt
[005.016] Power to exempt A statutory provision empowering the government to exempt any person from
the operation of any provision of the statute, or directing that any provision in the statute shall apply to such
persons with such modifications as may be specified, may be validated on the premise that it must be
exercised under the Act.
The power of exemption given to the government under the provision in question is to be exercised so as to
advance the policy and object of the Act, according to the guidelines as may be gleaned from the preamble
and other provisions of the statute1.
A typical exemption clause runs as follows:
'Notwithstanding anything contained in this Act, the government may, subject to such conditions as they deem fit, by
notification, exempt any land or building or class of lands or buildings from all or any of the provisions of this Act or rules or
regulations made thereunder.': Tamil Nadu Town and Country Planning Act 1971 s 113.
The reason for including exemption clauses in the statutes is that it may not be possible for a statute to contemplate every
contingency which may arise in future and make specific provisions therefore in the enactment. It is for this purpose that a
power of exemption, in general terms, is conferred on the government to meet any such contingency in order to further the
policy and objects of the Act.
The Supreme Court has justified the inclusion of exemption clauses in statutes as follows: 'In almost all the statutes by which
the fiscal or economic interests of the state are regulated, the provision for granting exemption in appropriate cases would
necessarily have to be there and the power to grant exemption is invariably conferred on the government concerned. The
legislature which is burdened with heavy legislative and other types of work is not able to find time to consider, in detail the
hardships and difficulties, that are likely to result by enforcement of the statute concerned. It has, therefore, now become a
well-recognised and Constitutionally accepted legislative practice to incorporate provisions conferring the powers of exemption
on the government in such statutes. Such exemption cannot ordinarily be granted secretly. A notification would have to be
issued and published in the gazette and in the ordinary course, it would be subject to scrutiny by the legislature. The power can
be exercised only in public interest as provided by the statutory provision itself.'
Hindustan Paper Corp Ltd v Government of Kerala AIR 1986 SC 1541 [LNIND 1986 SC 132] [LNIND 1986 SC 132] [LNIND
1986 SC 132], Hindustan Paper Corp Ltd v Government of Kerala (1986) 3 SCC 398 [LNIND 1986 SC 132] [LNIND 1986 SC
132] [LNIND 1986 SC 132], Hindustan Paper Corp Ltd v Government of Kerala [1986] 2 SCR 581 [LNIND 1986 SC 132]
[LNIND 1986 SC 132] [LNIND 1986 SC 132]. An exemption clause is held valid if the statute contains policy, subject to which
the power of exemption is to be exercised.
See Premium Granites v State of Tamil Nadu AIR 1994 SC 2233 [LNIND 1994 SC 1219] [LNIND 1994 SC 1219] [LNIND 1994
SC 1219], Premium Granites v State of Tamil Nadu (1994) 2 SCC 691 [LNIND 1994 SC 1219] [LNIND 1994 SC 1219] [LNIND
1994 SC 1219], Premium Granites v State of Tamil Nadu (1994) 1 JT 376(Payment of Bonus Act 1965 s 36, authorised the
government to exempt any establishment or a class of establishments from the operation of the Act having regard to the
financial position and other relevant circumstances of the establishment, provided the government is of the opinion that it would
not be in public interest to apply all or any of the provisions of the Act) The Supreme Court held the provision valid as
Parliament had given adequate guidance and clearly laid down the principles in light of which the power of exemption was to be
exercised.
Jalan Trading Co Private Ltd v Mill Mazdoor Sabha AIR 1967 SC 691 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND
Mazdoor Sabha [1967] 1 SCR 15 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]: where Madras
Cooperative Societies Act 1932 s 60 authorised the state government to exempt any registered society from the provisions of
the Act, the Supreme Court held the clause valid against the challenge of excessive delegation as the court found the policy of
the Act stated in the preamble thereto, ie to facilitate the formation and working of co-operative societies. There may arise
complex situations in the course of the working of the Act and formation and functioning of the societies.
33 33
Page
Registrar of Cooperative Societies v K Kunjabmu AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979
SC 472], Registrar of Cooperative Societies v K Kunjabmu (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND 1979 SC 472]
[LNIND 1979 SC 472], Registrar of Cooperative Societies v K Kunjabmu [1980] 2 SCR 260 [LNIND 1979 SC 472] [LNIND 1979
SC 472] [LNIND 1979 SC 472].
In Consumer Action Group v State of Tamil Nadu AIR 2000 SC 3060 [LNIND 2000 SC 1130] [LNIND 2000 SC 1130] [LNIND
2000 SC 1130], Consumer Action Group v State of Tamil Nadu (2002) 7 SCC 425 [LNIND 2002 SC 579] [LNIND 2002 SC 579]
[LNIND 2002 SC 579], Consumer Action Group v State of Tamil Nadu (2000) 9 JT 272, the Supreme Court has observed as
follows in this connection: ('... in spite of a very wide power being conferred on the delegatee that such a section would still not
be ultra vires, if guidelines could be gathered from the objects and reasons under the preamble and other provisions of the Acts
and relevant Rules. In testing the validity of such provisions, the courts have to discover, whether there is any legislative policy,
purpose of the statute or indication of any clear will through its various provisions. If there be any, then this by itself would be a
guiding factor to be exercised by the delegatee. In other words, then it cannot be held that such a power is unbridled or
uncanalised. The exercise of power of such delegatee is controlled through such policy.')
Also see Sardar Inder Singh v State of Rajasthan AIR 1957 SC 510 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957
SC 13], Sardar Inder Singh v State of Rajasthan [1957] SCR 605 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC
13], Sardar Inder Singh v State of Rajasthan (1957) SCJ 376 [LNIND 1957 SC 13] [LNIND 1957 SC 13] [LNIND 1957 SC 13];
Registrar of Cooperative Societies v K Kunjabmu AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472] [LNIND 1979
SC 472], Registrar of Cooperative Societies v K Kunjabmu (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND 1979 SC 472]
[LNIND 1979 SC 472], Registrar of Cooperative Societies v K Kunjabmu [1980] 2 SCR 260 [LNIND 1979 SC 472] [LNIND 1979
SC 472] [LNIND 1979 SC 472].
On the other hand, if the court finds that the parent Act contains no policy to guide the exercise of the power of exemption, then
the exemption clause may be declared invalid: see A N Parasuraman v State of Tamil Nadu AIR 1990 SC 40 [LNIND 1989 SC
492] [LNIND 1989 SC 492] [LNIND 1989 SC 492], A N Parasuraman v State of Tamil Nadu (1989) 4 SCC 683 [LNIND 1989 SC
492] [LNIND 1989 SC 492] [LNIND 1989 SC 492], A N Parasuraman v State of Tamil Nadu [1989] Supp 1 SCR 371; KT Moopil
Nair v State of Kerala AIR 1999 SC 230 [LNIND 1998 SC 1150] [LNIND 1998 SC 1150] [LNIND 1998 SC 1150], KT Moopil Nair
v State of Kerala (1998) 8 SCC 188 [LNIND 1998 SC 1150] [LNIND 1998 SC 1150] [LNIND 1998 SC 1150], KT Moopil Nair v
State of Kerala (1998) 7 JT 558; Kunj Behari Butail v State of Himachal Pradesh, AIR 200 SC 1069, Kunj Behari Butail v State
of Himachal Pradesh, (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], Kunj Behari Butail v
State of Himachal Pradesh, (2000) 2 JT 307 .
Also see Edward Mills Co Ltd, Beawar. v State of Ajmer AIR 1955 SC 25 [LNIND 1954 SC 130] [LNIND 1954 SC 130] [LNIND
1954 SC 130], Edward Mills Co Ltd, Beawar. v State of Ajmer [1955] 1 SCR 735 [LNIND 1954 SC 130] [LNIND 1954 SC 130]
[LNIND 1954 SC 130], Edward Mills Co Ltd, Beawar. v State of Ajmer (1975) SCJ 42; Sable Waghire & Co v Union of India AIR
1975 SC 1172 [LNIND 1975 SC 133] [LNIND 1975 SC 133] [LNIND 1975 SC 133], Sable Waghire & Co v Union of India (1975)
1 SCC 763 [LNIND 1975 SC 133] [LNIND 1975 SC 133] [LNIND 1975 SC 133], Sable Waghire & Co v Union of India [1975]
Supp SCR 9.

ADMINISTRATIVE LAW/3. DELEGATED LEGISLATION/(4) DELEGATION TO VARIOUS
BODIES/[005.017] Delegation to municipal bodes
[005.017] Delegation to municipal bodes Broad delegation of legislative power to municipal bodies has
been upheld because the nature of the body to which delegation is made is also a factor to be taken into
consideration in determining whether there is sufficient guidance in the matter of delegations1.
A municipal corporation is an elected body which has to go to the electors after regular intervals and thus,
can be thrown out if it exercises its powers unreasonably2.
1 Municipal Corporation of Delhi v Birla Cotton, Spinning and Weaving Mills, Delhi AIR 1968 SC 1232 [LNIND 1968 SC 395]
[LNIND 1968 SC 395] [LNIND 1968 SC 395], Municipal Corporation of Delhi v Birla Cotton, Spinning and Weaving Mills, Delhi
([1968] 3 SCR 251 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC 395], Municipal Corporation of Delhi v Birla
Cotton, Spinning and Weaving Mills, Delhi (1968) 2 SCA 142 [LNIND 1968 SC 395] [LNIND 1968 SC 395] [LNIND 1968 SC
395].
2 Gulabchand Bapalal Modi v Municipal Corporation of City of Ahmedabad AIR 1971 SC 2100 [LNIND 1971 SC 169] [LNIND
1971 SC 169] [LNIND 1971 SC 169], Gulabchand Bapalal Modi v Municipal Corporation of City of Ahmedabad (1971) 1 SCC
823 [LNIND 1971 SC 169] [LNIND 1971 SC 169] [LNIND 1971 SC 169], Gulabchand Bapalal Modi v Municipal Corporation of
34 34
Page
City of Ahmedabad [1971] 3 SCR 942 [LNIND 1971 SC 169] [LNIND 1971 SC 169] [LNIND 1971 SC 169]; Arvinder Singh v
State of Punjab AIR 1999 SC 32.

BODIES/[005.018] Delegation to statutory bodies
[005.018] Delegation to statutory bodies Delegation of taxing power to non-elected statutory bodies has
also been upheld in several cases provided that it is not arbitrary or inconsistent with the doctrine of
excessive delegation1.
At times, a statute may contain a 'removal of difficulty' clause. It is a statutory clause which empowers the
government to make provisions for 'removal of difficulty' in giving effect to the provisions of the Act2.
Such a provision is usually inserted in a statute which is being enacted for the first time and it may not be
possible to anticipate what difficulties, if any, may arise in the course of implementation of the statutory
provisions in question. The clause envisages that the government may remove any difficulty which may arise
in putting the law into operation3.
A simple version of the clause is one which authorises the making of a removal of difficulty order which is not
inconsistent with the provisions of the parent Act. Such a provision is valid vis-a-vis the doctrine of excessive
delegation, if the power is exercised in a way which does not change the basic policy of the Act in question4.
A statutory provision not only empowering the making of removal of difficulty order, but also making the order
of the government final has been held to be invalid on the ground of excessive delegation of legislative
power. Through such a clause the government has been made the sole judge of whether any difficulty has
arisen in giving effect to the Act, whether it was necessary or expedient to remove the difficulty, and whether
the order made was inconsistent or not with the purposes of the Act5.
There is a wider version of the removal of difficulty provision which does not stipulate that the removal of
difficulty order should not be inconsistent with the parent Act. In other words, it means that an executive can
even go to the extent of modifying the provisions of the Act to some extent through a removal of difficulty
order.
Such a statutory provision has been held subject to the following riders:
(1) arising of a 'difficulty' is the sine qua non, or the condition precedent, for the exercise of the
power under this clause. Therefore, whether a difficulty has arisen or not is an objective fact,
not a matter of subjective satisfaction for the government. This means that the court has to be
satisfied that in fact a difficulty has arisen and that the difficulty needs to be removed, so the
removal of the difficulty order is necessary. If there is no difficulty, the power to remove the
difficulty cannot be exercised.
(2) again, the difficulty in question is a difficulty arising in giving effect to the provisions of the
parent Act, and not any difficulty arising aliunde, or an extraneous difficulty. Therefore, a
government order seeking to remove a difficulty which has not arisen could be an unauthorised
order.
(3) in removing the difficulty, the government can exercise the power only to the extent it is
necessary for applying or giving effect to the Act. This means that only minor changes can be
made in the parent statute; its basic structure or essential provisions cannot be tampered with6.
Thus, finality cannot be conferred on the removal of difficulty order made by the government. Only minor
amendments can be made in the statute without changing its basic policies. The court reserves to itself the
right to decide whether any difficulty has in fact arisen to remove any action on the part of the government
35 35
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which is necessary7.
1 See Jullundur Rubber Goods Manufacturiers' Association v Union of India AIR 1970 SC 1589 [LNIND 1969 SC 292] [LNIND
1969 SC 292] [LNIND 1969 SC 292], Jullundur Rubber Goods Manufacturiers' Association v Union of India (1969) 2 SCC 644,
Jullundur Rubber Goods Manufacturiers' Association v Union of India [1970] SCR 68: The Karnataka legislature conferred on
the Bangalore Development Authority (BDA) power to levy and collect property tax. This was challenged on the ground of
excessive delegation of legislative power. However, the Supreme Court validated the provision and rejected the contention
about its invalidity arguing that the authority to collect property tax given to the BDA was neither arbitrary nor in excess of the
power of delegation. The process of development is statutorily controlled. An elaborate machinery has been provided for the
levy and collection of tax and the levy and collection of the tax has not been left to the arbitrary discretion of the BDA. See also
B Krishna Kant v State of Karnataka AIR 2001 SC 1885 [LNIND 2001 SC 862] [LNIND 2001 SC 862] [LNIND 2001 SC 862], B
Krishna Kant v State of Karnataka (2001) 4 SCC 227 [LNIND 2001 SC 862] [LNIND 2001 SC 862] [LNIND 2001 SC 862], B
Krishna Kant v State of Karnataka (2001) 4 JT 497.
2 If any difficulty arises in giving effect to the provisions of this Act, the government may, as the occasion may require, by order,
do anything which appears to be necessary for the purpose of removing the difficulty. Such a clause has been characterised in
Britain as the Henry VIII clause denoting thereby that it vests an unlimited power, or rather an autocratic power, in the executive
to change the legislation made by the legislature.
3 Usually what happens is that when a law is enacted to implement a new socio-economic scheme, and the legislature is not
sure of the difficulties which may crop up in future in implementation of the provisions of the law, the legislature introduces a
removal of difficulty clause in the statute.
4 State Bank of Travancore v Goodland Plantations (Pvt) Ltd AIR 1980 SC 650 [LNIND 1979 SC 440] [LNIND 1979 SC 440]
[LNIND 1979 SC 440], State Bank of Travancore v Goodland Plantations (Pvt) Ltd (1980) 1 SCC 389 [LNIND 1979 SC 440]
[LNIND 1979 SC 440] [LNIND 1979 SC 440], State Bank of Travancore v Goodland Plantations (Pvt) Ltd [1980] 1 SCR 1157
[LNIND 1979 SC 440] [LNIND 1979 SC 440] [LNIND 1979 SC 440] .The Banking Regulation Act 1949 s 45(10) states: If any
difficulty arises in giving effect to the provisions of the scheme, the Central Government may by order do anything, not
inconsistent with such provisions which appears to it necessary or expedient for the purpose of removing the difficulty. Three
requirements have to be followed subject to which a removal of difficulty order can be made under the above provision, that is:
(1) a difficulty has arisen in giving effect to the provisions of the scheme; (2) the order to be made is such as appears to the
government to be necessary or expedient for the purpose of removing the difficulty; and (3) the order is not inconsistent with
any provision of the scheme. See also Gammon India Ltd v Union of India AIR 1974 SC 960 [LNIND 1974 SC 109] [LNIND
1974 SC 109] [LNIND 1974 SC 109], Gammon India Ltd v Union of India (1974) 2 SCC 596 [LNIND 1974 SC 281] [LNIND 1974
SC 281] [LNIND 1974 SC 281], Gammon India Ltd v Union of India [1974] 3 SCR 665 [LNIND 1974 SC 109] [LNIND 1974 SC
109] [LNIND 1974 SC 109]; Narsimha Rao v Government of Andhra Pradesh AIR 1977 AP 178 [LNIND 1976 AP 164] [LNIND
1976 AP 164] [LNIND 1976 AP 164], Narsimha Rao v Government of Andhra Pradesh (1976) 2 Andh WR 319.
5 Jalan Trading Co Private Ltd v Mill Mazdoor Sabha AIR 1967 SC 691 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND
Mazdoor Sabha [1967] 1 SCR 15 [LNIND 1966 SC 146] [LNIND 1966 SC 146] [LNIND 1966 SC 146]. Also see Union of India v
Qgale Glass Works Ltd AIR 1971 SC 2577 [LNIND 1971 SC 431] [LNIND 1971 SC 431] [LNIND 1971 SC 431], Union of India v
Qgale Glass Works Ltd (1971) 2 SCC 678 [LNIND 1971 SC 431] [LNIND 1971 SC 431] [LNIND 1971 SC 431], Union of India v
Qgale Glass Works Ltd [1972] 1 SCR 525 [LNIND 1971 SC 431] [LNIND 1971 SC 431] [LNIND 1971 SC 431].
6 The government may tinker with an Act to round off angularities and smoothen the joints or remove minor obscurities to make
it workable, but it cannot change, disfigure or do violence to the basic structure and primary features of the Act. In no case, can
it, under the garb of removing a difficulty, change the scheme and essential provisions of the Act': Madeva Upendra Sinai v
Union of India AIR 1975 SC 797 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], Madeva Upendra Sinai v
Union of India (1975) 3 SCC 765 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], Madeva Upendra Sinai v
Following these principles, the Supreme Court has declared the removal of difficulties orders in: Madeva Upendra Sinai v
Union of India AIR 1975 SC 797 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], Madeva Upendra Sinai v
Union of India (1975) 3 SCC 765 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353], Madeva Upendra Sinai v
Union of India [1975] 2 SCR 640 [LNIND 1974 SC 353] [LNIND 1974 SC 353] [LNIND 1974 SC 353] and Straw Products Ltd v
Income Tax Officer A Ward Bhopal AIR 1968 SC 579 [LNIND 1967 SC 303] [LNIND 1967 SC 303] [LNIND 1967 SC 303], Straw
Products Ltd v Income Tax Officer A Ward Bhopal [1968] 2 SCR 1 [LNIND 1967 SC 303] [LNIND 1967 SC 303] [LNIND 1967
SC 303], Straw Products Ltd v Income Tax Officer A Ward Bhopal (1968) 68 ITR 227, invalid. In these cases, there were no
'difficulties' to remove the orders which had been made. Also, the government, in both cases, attempted to change the
fundamental schemes of the Acts in question.
For an example of the misuse of the removal of difficulty clause by the government, reference may be made to Krishnadeo
Misra v State of Bihar AIR 1988 Pat 9, Krishnadeo Misra v State of Bihar (1987) BLJR 784, Krishnadeo Misra v State of Bihar
(1987) Pat LJR (HC) 854.
36 36
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BODIES/[005.019] Delegation to taxation authorities
[005.019] Delegation to taxation authorities A statute may impose a tax but may leave it to the executive
to fix the rates of taxation from time to time. Such a provision may be held void as conferring too broad a
discretion on the executive. However, the provision may be held valid if the Act in question contains policy in
light of which the power is to be exercised1.
On the other hand, if the maximum limit is prescribed in the Act itself subject to which the rate of tax may be
fixed by the executive, then the provision is held valid because it confers only a limited legislative power on
the executive2.
The doctrine of excessive delegation has an important function as a judicial tool. The doctrine envisages that
uncontrolled legislative powers may not be conferred on the administration. This, therefore, means that the
law in question should lay down standards to guide the rule-making authority and/or that there be procedural
safeguards, subject to which the legislative power may be exercised.
In the absence of any such doctrine, the courts will be left with no judicial technique to insist that the
legislature lays down standards and provides safeguards in the law it is enacting, and the administration may
be left free to exercise its rule-making power in any way it likes. The doctrine also strengthens the application
of the principle of ultra vires to delegated legislation and thus, strengthens judicial control over the rules3.
Mines and Minerals (Regulation and Development) Act 1957 s 15, passed by Parliament delegates to a state government the
power to make rules prescribing the rates of royalty in respect of minor minerals. No maximum limit has been fixed for the levy.
Nevertheless, the Supreme Court upheld the provision in Quarry Owners' Association v State of Bihar (2000) 8 SCC 655
[LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND 2000 SC 1068], Quarry Owners' Association v State of Bihar (2000) 3
LRI 929, on the ground that the Act lays down the policy subject to which the power is to be exercised. The Court found the
policy in the preamble to the Act.
The delegation of taxing power was to the state government which was responsible to the state legislature, the power would not
be used in an arbitrary or unreasonable manner. The Court observed: 'Where a policy is clearly laid down in a statute with
reference to the minor minerals with the main object under the Act being for its conservation and development, coupled with
various other provisions of the Act guiding it, checking it, controlling it, then how could such delegation be said to be unbridled?"
In Devi Das Gopal Krishnan v State of Punjab AIR 1967 SC 1895 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND 1967
SC 127], Devi Das Gopal Krishnan v State of Punjab [1967] 3 SCR 557 [LNIND 1967 SC 127] [LNIND 1967 SC 127] [LNIND
1967 SC 127], Devi Das Gopal Krishnan v State of Punjab (1967) (20) STC 430 [LNIND 1967 SC 127] [LNIND 1967 SC 127]
[LNIND 1967 SC 127]; the law empowering the executive to levy sales tax at a rate not exceeding 2 per cent was held valid and
the court stated that it was alright to confer a reasonable amount of discretion on the government through a fiscal statute, but a
large statutory discretion placing a wide gap between the minimum and maximum rates, and thus, enabling the government to
fix an arbitrary rate may not be sustainable.
Power to levy a cess up to 50 paise per metric ton on iron, for labour welfare was held valid in V Nagappa v Iron Ore Mines
Cess Commissioner AIR 1973 SC 1374 [LNIND 1973 SC 121] [LNIND 1973 SC 121] [LNIND 1973 SC 121], V Nagappa v Iron
Ore Mines Cess Commissioner (1973) 2 SCC 1 [LNIND 1973 SC 121] [LNIND 1973 SC 121] [LNIND 1973 SC 121], V Nagappa
v Iron Ore Mines Cess Commissioner [1973] 3 SCR 943 [LNIND 1973 SC 121] [LNIND 1973 SC 121] [LNIND 1973 SC 121].
The judicial doctrine of excessive delegation has not gone unchallenged. At times, some Supreme Court judges have
37 37
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advocated that this restraint on the legislature be loosened, but the majority view on the Supreme Court has always been in
favour of maintaining the doctrine of excessive delegation.
Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Assistant Commissioner of Sales Tax AIR 1974 SC 1660 [LNIND 1973 SC 418]
[LNIND 1973 SC 418] [LNIND 1973 SC 418], Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Assistant Commissioner of Sales Tax
Assistant Commissioner of Sales Tax [1974] 2 SCR 879 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418], in
this case, the Supreme Court debated whether the doctrine of excessive delegation be maintained, modified or given up.
Mathew J advocated that so long as the legislature can repeal the statutory provision delegating legislative power, there is no
need for the legislature to lay down policy, standard or guidelines in the statute, because through its power of repealing the
delegating provision, the legislature retains an ultimate control over the delegate making subordinate legislation and the
legislature can never be regarded as abdicating its legislative power. This view would have resulted in a complete emasculation
of the doctrine of excessive delegation and there would remain no semblance of restraint on the legislature in the matter of
delegation. The majority accordingly refused to accept Justice Mathew's thesis. On behalf of the majority, Khanna J asserted
that the view has been reiterated in a long chain of cases that while conferring upon another authority the power to make
delegated legislation, the legislature must lay down policy, principle or standard for the guidance of the authority concerned.
Both the majority and Mathew J extensively reviewed the relevant case-law on delegation from Australia, Canada, and the USA.
See also Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Assistant Commissioner of Sales Tax AIR 1974 SC 1660 [LNIND 1973 SC
418] [LNIND 1973 SC 418] [LNIND 1973 SC 418], Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Assistant Commissioner of Sales
Tax (1974) 4 SCC 98 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418], Gwalior Rayon Mills Mfg (Wvg) Co
Ltd v Assistant Commissioner of Sales Tax [1974] 2 SCR 879 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC
418], the Court reiterated later in several cases.
See, for instance, Kerala State Electricity Board v Indian Aluminium Co Ltd AIR 1976 SC 1031 [LNIND 1975 SC 313] [LNIND
1975 SC 313] [LNIND 1975 SC 313], Kerala State Electricity Board v Indian Aluminium Co Ltd (1976) 1 SCC 466 [LNIND 1975
SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313], Kerala State Electricity Board v Indian Aluminium Co Ltd [1976] 1 SCR
552 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]; Babu Ram Jagdish Kumar & Co v State of Punjab AIR
1979 SC 1475 [LNIND 1979 SC 272] [LNIND 1979 SC 272] [LNIND 1979 SC 272], Babu Ram Jagdish Kumar & Co v State of
Punjab (1973) 3 SCC 616, Babu Ram Jagdish Kumar & Co v State of Punjab [1979] 3 SCR 952 [LNIND 1979 SC 272] [LNIND
1979 SC 272] [LNIND 1979 SC 272]: The lack of policy has been made good by procedural safeguards contained in the Act on
the basis that with procedural safeguards being there, legislative power cannot be misused by the delegate and exercised by
him in an arbitrary manner. The courts have been willing to accept a broader delegation in a legislation Act on the ground that
the legislature should have more leeway in a fiscal measure. The courts have also accepted a wider delegation to municipal
bodies on the ground that these bodies are democratically elected and are answerable to their electorate and so would exercise
the power in a responsible manner. The court has advocated that in welfare legislations also, a wider delegation may be
permitted.
It is the first principle of any democratic system that policies be made by elected representatives and not by non-elected
bureaucrats; Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Asst Commissioner of Sales Tax AIR 1974 SC 1660 [LNIND 1973 SC
418] [LNIND 1973 SC 418] [LNIND 1973 SC 418], Gwalior Rayon Mills Mfg (Wvg) Co Ltd v Asst Commissioner of Sales Tax
Asst Commissioner of Sales Tax [1974] 2 SCR 879 [LNIND 1973 SC 418] [LNIND 1973 SC 418] [LNIND 1973 SC 418]. It will
be of interest to note that in USA, dilution of the delegation doctrine has been compensated by two significant developments: (1)
development of procedural safeguards in the making of delegated legislation. The Federal Administrative Procedure Act 1946
(US) imposes a number of safeguards, especially the consultative procedure called notice and comment. This leads to some
democratisation of the rule-making process; (2) increasing legislative control over delegated legislation. Many statutes give
legislative veto to Congress which enables one or both Houses of Congress to disapprove delegated legislation by passage of
an annulling resolution. Efforts are being made to enact a law providing for general legislative review of delegated legislation
and, according to Schwartz, this may help restore the balance which has been tilted unduly by the judicial reluctance... to
exercise control over the delegations of power themselves: see, Schwartz, ' 'Recent Developments in American Administrative
Law' v (1980) LVIII Can BR 319 at 325 14 Israel LR 415-16, 'Recent Developments in American Administrative Law' v 14
Israel LR 415-16.

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(1)
CONSTITUTIONALITY/[005.020] Constitutionality of the Parent Act
[005.020] Constitutionality of the Parent Act The first and foremost question for the courts to consider is
whether the parent statute under which legislative powers have been delegated to the executive is itself
Constitutional or not, for if the delegating statute itself is unconstitutional, then the delegated legislation
emanating thereunder will also be invalid.
38 38
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The parent Act may be unconstitutional on several grounds as, for instance:
(1) excessive delegation1; or

(2) breach of a fundamental right2; or
(3) distribution of powers between the Centre and the states3; or
(4) inconsistency with any other Constitutional provisions or principles.
1 As to excessive delegation see [005.183].
2 The Constitution of India arts 12 to 35 guarantees several Fundamental Rights to the citizens of India as well as to other
persons. Any law in conflict with any such right is void. See[80]CONSTITUTIONAL LAW.
3 India's Constitution is of the federal type. This involves distribution of legislative powers between the Centre and the states. If
the Centre or state makes a law falling outside its prescribed legislative sphere, the law will be held to be unconstitutional.

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(1)
CONSTITUTIONALITY/[005.021] Constitutionality of delegated legislation
[005.021] Constitutionality of delegated legislation The next stage may be for the court to consider
whether the delegated legislation itself is Constitutional or not. It is quite possible that while the parent statute
may be Constitutional, delegated legislation emanating thereunder may be in conflict with some provision of
the Constitution. For example, it may be in conflict with a fundamental right guaranteed by the Constitution1.
Again, the question of unconstitutionality of the rules falls mainly within the sphere of Constitutional Law
rather than under administrative law.
For example, in Dwarka Prasad Laxmi Narain v State of Uttar Pradesh AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC
1] [LNIND 1954 SC 1], Dwarka Prasad Laxmi Narain v State of Uttar Pradesh [1954] SCR 803 [LNIND 1954 SC 1] [LNIND 1954
SC 1] [LNIND 1954 SC 1], Dwarka Prasad Laxmi Narain v State of Uttar Pradesh (1954) SCJ 238 [LNIND 1954 SC 1] [LNIND
1954 SC 1] [LNIND 1954 SC 1], a few provisions of the Uttar Pradesh Coal Control Order 1953 made under the Essential
Supplies Act 1946 s 3(2) were declared ultra vires as infringing the Constitution of India art 19(1) (g).
Similarly, in Rashid Ahmad v Municipal Board, Kairana AIR 1950 SC 163 [LNIND 1950 SC 24] [LNIND 1950 SC 24] [LNIND
1950 SC 24], Rashid Ahmad v Municipal Board, Kairana [1950] SCR 375, Rashid Ahmad v Municipal Board, Kairana (1960)
SCJ 214 certain bye-laws made by a municipality were held bad under the Constitution of India art 19(1)(g).
In Narendra Kumar v Union of India AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217],
Narendra Kumar v Union of India [1960] 2 SCR 375 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217],
Narendra Kumar v Union of India (1960) SCJ 214 the Supreme Court specifically considered whether the question of
unconstitutionality of delegated legislation made under a valid Act could be raised or not. The Non-Ferrous Metals Control
Order 1958 was made under the Essential Commodities Act 1955.
In Harishankar Bagla v State of Madhya Pradesh AIR 1954 SC 465 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954 SC
93], Harishankar Bagla v State of Madhya Pradesh [1955] 1 SCR 380 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954
SC 93], Harishankar Bagla v State of Madhya Pradesh (1954) SCJ 637 [LNIND 1954 SC 93] [LNIND 1954 SC 93] [LNIND 1954
SC 93]the question was whether the validity of the order could be canvassed under the Constitution of India art 19(1)(g).
In AIR India v Nergesh Meerza AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], India v
Nergesh Meerza [1982] 1 SCR 438 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], India v Nergesh
Meerza (1981) 4 SCC 335 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], the Supreme Court declared
certain regulations pertaining to the service condition of AIR hostesses as discriminatory under the Constitution of India art 14.
In Haniraj L Chulani v Bar Council of Maharashtra & Goa AIR 1996 SC 1708 [LNIND 1996 SC 743] [LNIND 1996 SC 743]
39 39
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[LNIND 1996 SC 743], Haniraj L Chulani v Bar Council of Maharashtra & Goa (1996) 3 SCC 342 [LNIND 1996 SC 743] [LNIND
1996 SC 743] [LNIND 1996 SC 743], Haniraj L Chulani v Bar Council of Maharashtra & Goa (1996) 4 JT 162, a rule made
under the Advocates Act 1961 barred a person from being enrolled as an advocate if he was engaged in any other profession.
The rule was held not to infringe upon the Constitution of India arts 14 or 19(1)(g).

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(2) DOCTRINE OF
ULTRA VIRES/[005.022] Doctrine of ultra vires
[005.022] Doctrine of ultra vires The validity of delegated legislation may be adjudged by the courts on the
ground whether it is ultra vires or intra vires the parent Act. The doctrine of ultra vires is the basic doctrine in
administrative law. The doctrine envisages that an authority can exercise only so much power as is conferred
on it by law. An action of the authority is intra vires when it falls within the limits of the power conferred on it
but ultra vires if it goes outside this limit. The doctrine of ultra vires has two aspects:
(1) substantive and

(2) procedural.
When a piece of delegated legislation is declared to be ultra vires, it is void and becomes unenforceable. It
cannot affect the rights and duties of any person. Until a rule is declared invalid by a court, it is presumed to
be valid1.
If the valid and the invalid parts of a rule can be severed, only then the invalid portion of the rule is quashed
and the valid portion can continue to remain operative. However, if the valid and the invalid parts are
inextricably mixed up, then the entire rule has to go2.
A void rule cannot be the basis of any administrative action. No one can be prosecuted under a void rule3.
The validity of a rule can be challenged in a court either directly or collaterally, or by way of defence to a civil
claim based on the impugned rule, or as a defence in a prosecution for infringing the rule. A person can
challenge the validity of administative action by challenging the validity of the relevant rule. A person whose
interest is affected adversely by a piece of delegated legislation can directly challenge its vires in a court.
The court may grant an injunction or declaration or issue mandamus or award damages to the affected
person as may be suitable4.
1 Hoffman-La Roche v Secretary of State for Trade and Industry [1974] 2 All ER 1128.
2 Deepak Sibal v Punjab University AIR 1989 SC 903 [LNIND 1989 SC 91] [LNIND 1989 SC 91] [LNIND 1989 SC 91], Deepak
Sibal v Punjab University [1989] 1 SCR 689 [LNIND 1989 SC 91] [LNIND 1989 SC 91] [LNIND 1989 SC 91], Deepak Sibal v
Punjab University (1989) 2 SCC 145 [LNIND 1989 SC 91] [LNIND 1989 SC 91] [LNIND 1989 SC 91].
3 Govind Lal Chaggan Lal Patel v Agricultural Produce Market Committee AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND
1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agricultural Produce Market Committee [1976] 1 SCR
451 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agricultural Produce
Market Committee (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300].
4 As to the question of remedies awarded to a person adversely affected by an administrative action see [005.020] and
following.

ULTRA VIRES/[005.023] Substantive ultra vires
40 40
Page
[005.023] Substantive ultra vires The most common ground to question delegated legislation before the
courts is the ground of substantive ultra vires. This means that the delegated legislation goes beyond the
scope of the power conferred by the parent statute, or it is in conflict with the delegated statute and hence, it
is invalid. Briefly stated, the principle is that the delegate cannot make a rule which is not authorised by the
parent statute. If the subordinate legislative authority keeps within the bounds of the power delegated, the
delegated legislation is valid; however, if the authority exceeds the power delegated, then the courts will
certainly declare it ultra vires1.
The doctrine refers to the extent, scope and range of power conferred by the parent Act on the concerned
authority to make rules. Conferment of rule-making power by an Act on an authority does not enable the
rulemaking authority to make a rule which is beyond the scope of the enabling Act, or which is inconsistent
therewith or repugnant thereto2. Rules have to be consistent with the provisions of the parent statute3. A rule
cannot enlarge the meaning of a statutory provision. A rule has to yield to the statutory provision. If a rule
goes beyond what the section in the Act contemplates, the rule has to go. A rule is ultra vires when it goes
beyond the authority conferred on the rule-making body by the relevant statute.
To be valid a rule must fulfil two conditions, that is:
(1) it must conform to the provisions of the statute under which it is framed; and
(2) it must also come within the scope and purview of the rule-making power of the authority
framing the rule.
If either of these two conditions is not fulfilled, the rule would be void4. Thus, a rule repugnant to, or
inconsistent with or in contravention of, or in excess of, or overruling the provisions of, the parent Act is ultra
vires5. To apply the doctrine of ultra vires, the court has first to interpret the statutory provision to determine
the scope of delegation of power, then to interpret the delegated legislation in question and finally, to adjudge
whether the same is within, or without, the statutory power conferred6.
The court may interpret the statutory provision, narrowly or broadly, according to the specific circumstances
of the case7.
Narrowing the range of delegation is rather a rare phenomenon. Most often, courts adopt the strategy of
extending the range of delegation by referring to the purposes of the Act8. Generally the judicial attitude is to
lean towards the validity of delegated legislation. One of the strategies which the courts adopt for the
purpose is to interpret the delegating provision in the parent statute, rather broadly9. While adjudging the
validity of delegated legislation, the courts do not concern themselves with the policy underlying the same.
The courts do not sit in judgment over the wisdom of the policy adopted by the rule-making body. Matters of
policy are left to the rule-making authority and not the courts which concern themselves merely with the
question whether the delegated legislation in question falls within the scope of the power conferred on the
delegate by the parent statute10.
A rule may be challenged on the ground of mala fide of the rule-making authority11. A cardinal principle of
administrative law is that all statutory powers must be exercised in good faith. Mala fide vitiates
administrative action including rule-making12.
A piece of delegated legislation may be declared ultra vires if it goes against the basic policy of the parent
statute. A rule can be effective to the extent it is consistent with the parent Act13.
When such a power is given, the court seeks to discern the object of the enactment and then to ascertain if
the rules framed satisfy the test of furthering the purpose of the Act14. The courts may infer the purposes of
the Act from its preamble and other provisions of the Act15.
A rule may be challenged as ultra vires on the ground that it has no relation with the purposes for which the
rule-making power has been conferred by the parent Act, or that it subverts the general purposes of the
Act16.
A usual technique used to confer rule-making power is first to give a general power to make rules for the
41 41
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purposes of the Act, and then to lay down, without prejudice to the generality of the previous clause, specific
heads for which the delegate may make rules. It has been held that the purpose of specific heads is only
illustrative and not to restrict the generality of the rule-making power conferred in the preceding clause. The
real source of power is the general provision; the specific heads enumerated do not confer any fresh power.
If a rule is justified under the general rule-making power, then it is valid even if it may not fall within the
specified heads17. However, is the reverse position also true? The position seems to be that the specific
heads cannot broaden the scope of the general power insofar as the rules made under any specific
illustrative head must satisfy the overall condition contained in the general power namely, to carry out the
purposes of the parent Act18. This means that the specific heads cannot broaden the scope of the general
power insofar as the rules made under a specific head should fulfil the overall condition contained in the
general power, that is, to carry out the purposes of the parent Act.
At times, the authority concerned may wrongly state that it has made a rule under a particular provision of a
statute, while, in fact, it has done so under another provision. This does not affect the validity of the rules.
When a rule made is within the competence of an authority, it cannot be held invalid merely because it
purports to be made under a wrong provision, if it can be shown that the rule could be made under any other
provision. A mere wrong label cannot invalidate the action of an authority which otherwise falls within its
statutory power19.
The efficacy of judicial control of delegated legislation is very much dependant on how broad is the statutory
formula conferring power of delegated legislation on the delegate.
Usually, the application of the ultra vires rule becomes very difficult because of three reasons:
(1) powers are usually conferred in broad language.

(2) ordinarily, the courts interpret the enabling provision rather broadly.
(3) the courts adopt a deferential, rather than a critical, attitude towards delegated legislation.
In India, the test of unreasonableness is applicable to delegated legislation, both on general principles of
administrative law20 as well as under such fundamental rights as are guaranteed under the Constitution of
India21.
There is, however, one area where the Supreme Court does not appear to be willing to apply the test of
reasonableness, that is the area of delegated legislation laying down scale of rates at which statutory bodies
seek to provide services to the public22. Such a view leaves the consumers at the mercy of a government
department, or a government undertaking most of which are monopolies to provide services23.
1 Mohammad Yassin v Town Area Committee, Jalalabad AIR 1952 SC 115 [LNIND 1952 SC 11] [LNIND 1952 SC 11] [LNIND
1952 SC 11], Mohammad Yassin v Town Area Committee, Jalalabad [1952] SCR 572 [LNIND 1952 SC 11] [LNIND 1952 SC
11] [LNIND 1952 SC 11], Mohammad Yassin v Town Area Committee, Jalalabad (1952) SCJ 162 [LNIND 1952 SC 11] [LNIND
1952 SC 11] [LNIND 1952 SC 11]; Tahir Hussain v District Board, Muzaffarnagar AIR 1954 SC 630 [LNIND 1954 SC 289]
[LNIND 1954 SC 289] [LNIND 1954 SC 289]; Ganpati Singh v State of Ajmer AIR 1955 SC 188 [LNIND 1954 SC 168] [LNIND
1954 SC 168] [LNIND 1954 SC 168], Ganpati Singh v State of Ajmer [1955],1 SCR 1065, Ganpati Singh v State of Ajmer
(1955) SCJ 119 [LNIND 1954 SC 168] [LNIND 1954 SC 168] [LNIND 1954 SC 168].
2 Additional District Magistrate (Revenue) Delhi Administration v Siri Ram (2000) 5 SCC 451 [LNIND 2000 SC 835] [LNIND
2000 SC 835] [LNIND 2000 SC 835] . In the instant case, the Delhi Land Revenue Rules 1962, made under the Delhi Land
Revenue Act 1954, were declared ultra vires as being contrary to the parent Act as well as another Act, that is, the Delhi Land
Reforms Act 1954. By making the rules, the rule-making authority had exceeded the power conferred on it by the Land Reforms
Act 1954.
Central Bank of India v Their Workmen AIR 1960 SC 12 [LNIND 1959 SC 113] [LNIND 1959 SC 113] [LNIND 1959 SC 113],
Central Bank of India v Their Workmen [1960] 1 SCR 200 [LNIND 1959 SC 113] [LNIND 1959 SC 113] [LNIND 1959 SC 113],
Central Bank of India v Their Workmen (1960) SCJ 842 [LNIND 1958 SC 175] [LNIND 1958 SC 175] [LNIND 1958 SC 175];
State of Uttar Pradesh v Babu Ram Upadhya AIR 1961 SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC
292], State of Uttar Pradesh v Babu Ram Upadhya [1961] 2 SCR 679 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND
1960 SC 292], State of Uttar Pradesh v Babu Ram Upadhya (1961) 1 Cr LJ 773. The Supreme Court has declared in State of
42 42
Page
Karnataka v H Ganesh Kamath AIR 1983 SC 550 [LNIND 1983 SC 96] [LNIND 1983 SC 96] [LNIND 1983 SC 96], State of
Karnataka v H Ganesh Kamath [1983] 2 SCR 665 [LNIND 1983 SC 96] [LNIND 1983 SC 96] [LNIND 1983 SC 96], State of
Karnataka v H Ganesh Kamath (1983) 2 SCC 402 [LNIND 1983 SC 96] [LNIND 1983 SC 96] [LNIND 1983 SC 96]...Conferment
of rule-making power by an Act does not enable the rule-making authority to make a rule beyond the scope of the enabling Act
or which is inconsistent therewith or repugnant thereto.
The Supreme Court has ruled in State of Uttar Pradesh v Renusagar Power Co AIR 1988 SC 1737 [LNIND 1988 SC 619]
[LNIND 1988 SC 619] [LNIND 1988 SC 619], State of Uttar Pradesh v Renusagar Power Co [1988] Supp 1 SCR 627, State of
Uttar Pradesh v Renusagar Power Co (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619] that
if the exercise of power is in the nature of subordinate legislation, the exercise must conform to the provisions of the statute. All
the conditions of the statute must be fulfilled.
4 General Officer, Commanding-in-Chief v Subhash Chandra Yadav AIR 1988 SC 876 [LNIND 1988 SC 621] [LNIND 1988 SC
621] [LNIND 1988 SC 621], General Officer, Commanding-in-Chief v Subhash Chandra Yadav (1988) 2 SCC 351 [LNIND 1988
SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621], General Officer, Commanding-in-Chief v Subhash Chandra Yadav [1988]
3 SCR 62 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621].
5 Municipal Corporation of Greater Bombay v Nagpal Printing Mills AIR 1988 SC 1009 [LNIND 1988 SC 174] [LNIND 1988 SC
174] [LNIND 1988 SC 174], Municipal Corporation of Greater Bombay v Nagpal Printing Mills (1988) 2 SCC 466 [LNIND 1988
SC 174] [LNIND 1988 SC 174] [LNIND 1988 SC 174], Municipal Corporation of Greater Bombay v Nagpal Printing Mills [1988]
3 SCR 274 [LNIND 1988 SC 174] [LNIND 1988 SC 174] [LNIND 1988 SC 174]; Laghu Udyog Bharati v Union of India AIR
1999 SC 2596 [LNIND 1999 SC 622] [LNIND 1999 SC 622] [LNIND 1999 SC 622], Laghu Udyog Bharati v Union of India
(1999) 6 SCC 418 [LNIND 1999 SC 622] [LNIND 1999 SC 622] [LNIND 1999 SC 622], Laghu Udyog Bharati v Union of India
(1999) 4 Scale 440 [LNIND 1999 SC 622] [LNIND 1999 SC 622] [LNIND 1999 SC 622]; Kunj Behari Lal Butail v State of
Himachal Pradesh AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], Kunj Behari Lal
Butail v State of Himachal Pradesh (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND 2000 SC 344] [LNIND 2000 SC 344], Kunj
Behari Lal Butail v State of Himachal Pradesh (2000) 2 JT 307.
6 This process is very well illustrated by Indian Council of Legal Aid and Advice v Bar Council of India AIR 1995 SC 691
[LNIND 1995 SC 84] [LNIND 1995 SC 84] [LNIND 1995 SC 84], Indian Council of Legal Aid and Advice v Bar Council of India
(1995) 1 SCC 732 [LNIND 1995 SC 84] [LNIND 1995 SC 84] [LNIND 1995 SC 84], Indian Council of Legal Aid and Advice v Bar
Council of India (1995) 1 JT 423. The Supreme Court held a rule made by the Bar Council of India barring qualified persons
above the age of 45 years from enrolment as advocates, as ultra vires, as it fell outside the power of the Bar Council conferred
on it by the Advocates Act 1961 s 49(1).
Under the Advocates Act 1961 s 3(4), the qualifications entitling an advocate to vote at an election, or for being a candidate for
membership of the state bar council, have to be prescribed by the Bar Council of India. This cannot be done by the State Bar
Council.
If a rule for the purpose is made by the State Bar Council, it cannot be valid even if it is approved by the Bar Council of India for:
(1) approval of an ultra vires rule cannot validate it; and

(2) making of a rule and giving approval to a rule are two distinct concepts; one cannot take the place of the
other. Therefore, the rule cannot be regarded as having been made by the Bar Council of India.
Bar Council of Delhi v Surjeet Singh AIR 1980 SC 1612 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC 224], Bar
Council of Delhi v Surjeet Singh (1980) 4 SCC 211 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC 224], Bar Council of
Delhi v Surjeet Singh [1980] 3 SCR 946 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC 224].
See State of Punjab v Hari Kishan Sharma AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362],
State of Punjab v Hari Kishan Sharma [1966] 2 SCR 982 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362];
Chhannagiri Rangappa and Sons v District Magistrate, Chitradurga AIR 1971 Mys 244, Chhannagiri Rangappa and Sons v District
Magistrate, Chitradurga (1971) 1 Mys LJ 60; State of Gujarat v Krishna Cinema AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970
SC 358] [LNIND 1970 SC 358], State of Gujarat v Krishna Cinema (1970) 2 SCC 744 [LNIND 1970 SC 358] [LNIND 1970 SC 358]
[LNIND 1970 SC 358], State of Gujarat v Krishna Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970
SC 358], BB and B Mfg Co v Employees State Insurance Corp AIR 1972 SC 1932; Jayantilal Amrutlal Shodhan v Union of India AIR
1980 Guj 108, Jayantilal Amrutlal Shodhan v Union of India 11 Guj LR 208.
Atlas Cycles Industries Ltd v State of Haryana AIR 1972 SC 121 [LNIND 1971 SC 671] [LNIND 1971 SC 671] [LNIND 1971 SC
671], Atlas Cycles Industries Ltd v State of Haryana (1971) 2 SCC 564 [LNIND 1971 SC 671] [LNIND 1971 SC 671] [LNIND
1971 SC 671], Atlas Cycles Industries Ltd v State of Haryana [1972] 1 SCR 127 [LNIND 1971 SC 671] [LNIND 1971 SC 671]
[LNIND 1971 SC 671]. A provision in the state municipal act stated that when any local area was included within a municipality,
all rules, byelaws, orders, directions and powers made under the Act would apply to the area included. The Supreme Court
ruled that this provision did not include notification, and so a tax being collected in the municipal area under a notification could
not be levied in the newly included local area.
43 43
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Ajay Kumar Bannerjee v Union of India AIR 1984 SC 1130 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88],
Ajay Kumar Bannerjee v Union of India (1984) 3 SCC 127 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88], Ajay
Kumar Bannerjee v Union of India [1984] 3 SCR 252 [LNIND 1984 SC 88] [LNIND 1984 SC 88] [LNIND 1984 SC 88] (one of
those rare cases where the Supreme Court declared delegated legislation ultra vires the Act by cutting down the breadth of the
delegation to bring it in line with the object of the delegation of legislative power. The purpose or object of the conferment of the
power must be borne in mind).
Coal Mines Provident Fund and Bonus Scheme Act 1948 s 5 authorises the Central Government to frame the bonus scheme.
As a part of the scheme, the government created a quasi-judicial tribunal to decide disputes arising under the scheme. The
Supreme Court rejected the argument that the creation of the tribunal was ultra vires arguing that this was merely a matter of
detail which was subsidiary or ancillary to the main purpose: see: Tata Iron and Steel Co Ltd v Workmen of Tata Iron & Steel
Co Ltd AIR 1972 SC 1917 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300], Tata Iron and Steel Co Ltd v
Workmen of Tata Iron & Steel Co Ltd (1972) 2 SCC 383 [LNIND 1972 SC 300] [LNIND 1972 SC 300] [LNIND 1972 SC 300],
Tata Iron and Steel Co Ltd v Workmen of Tata Iron & Steel Co Ltd [1973] 1 SCR 594 [LNIND 1972 SC 300] [LNIND 1972 SC
300] [LNIND 1972 SC 300].
See also Lohia Machines Ltd v Union of India AIR 1985 SC 421 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC
572], Lohia Machines Ltd v Union of India (1985) 2 SCC 197 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC
572], Lohia Machines Ltd v Union of India [1985] 2 SCR 686 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC
572].
State of Tamil Nadu v Hind Stone AIR 1981 SC 711 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60], State of
Tamil Nadu v Hind Stone (1981) 2 SCC 205 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60], State of Tamil
Nadu v Hind Stone [1981] 2 SCR 742 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60]: The Mines and Minerals
(Regulation and Development) Act 1957 s 15 empowers the state government to make rules for regulating the grant of quarry
leases, mining leases and other mineral concessions in respect of minor minerals. The Tamil Nadu government promulgated a
rule banning leases for quarrying black granite in favour of private persons and laying down that, in future, leases would only be
granted to a government owned corporation. Thus, by using its rule making power, the government abolished private enterprise
in, and nationalised quarrying black granite. This was a very drastic use of its rule-making power by the government and it is
doubtful if the legislature ever envisaged this while conferring the rule-making power on the executive. The Supreme Court,
however, upheld the validity of the rule on the ground that it was made for conserving, and prudent exploitation of, minerals with
a view to secure maximum benefit to the community. The court also rejected the argument that the impugned rule changed the
policy of the Act which could be done by the legislature only. The court argued that the rule referred only to one mineral and not
to all the minerals and this did not represent a change of policy. If, however, a complete and general ban were to be imposed on
private mining of the minor minerals, it may invoke a reversal of a major policy which may need legislative sanction.
Also see K Ramanathan v State of Tamil Nadu AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC
69], K Ramanathan v State of Tamil Nadu (1985) 2 SCC 116 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69], K
Ramanathan v State of Tamil Nadu [1985] 2 SCR 1028 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69].
10 Maharashtra State Board of Secondary and Higher Secondary Education v Paritosh Bhupesh Kumarsheth AIR 1984 SC
1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173], Maharashtra State Board of Secondary and Higher
Secondary Education v Paritosh Bhupesh Kumarsheth (1984) 4 SCC 27 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND
1984 SC 173], Maharashtra State Board of Secondary and Higher Secondary Education v Paritosh Bhupesh Kumarsheth
[1985] 1 SCR 29 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]; State of Uttar Pradesh v Renusagar
Power Co AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988 SC 619], State of Uttar Pradesh v
Renusagar Power Co (1984) 4 SCC 59, State of Uttar Pradesh v Renusagar Power Co [1988] Supp 1 SCR 627; Shri Sitaram
Sugar Company Ltd v Union of India (1990) 3 SCC 223 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC 152].
11 In Mc Eldowney v Forde [1969] 2 AII E R 1039, the Privy Council has stated that if power entrusted for one purpose is
deliberately used with the design of achieving some other purpose, which itself in unauthorized or is forbidden, if bad faith of
this kind can be established, the court may intervene. It has also been stated that subordinate legislation may be held ultra vires
the enabling Act if the legislators have been animated by improper personal motives which affect the substance of the
end-product.
12
In AK Roy v Union of India AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], AK Roy v
Union of India (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], AK Roy v Union of India
[1982] 2 SCR 272 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], the Supreme Court did not accept the
argument that the government's failure to bring into force certain provisions of the 44th Amendment of the Constitution of India
was mala fide. Also see State of Tamil Nadu v Hind Stone AIR 1981 SC 711 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND
1981 SC 60], State of Tamil Nadu v Hind Stone (1981) 2 SCC 205 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC
60], State of Tamil Nadu v Hind Stone [1981] 2 SCR 742 [LNIND 1981 SC 60] [LNIND 1981 SC 60] [LNIND 1981 SC 60]. See
note 11 above. As to the concept of mala fide see [005.189] and following.
Whether mala fide would vitiate delegated legislation in India is a question shrouded in doubt. The judicial attitude seems to be
44 44
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somewhat ambivalent on this question.
In State of Uttar Pradesh v Renusagar Power Co AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND 1988
SC 619], State of Uttar Pradesh v Renusagar Power Co (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND
1988 SC 619], State of Uttar Pradesh v Renusagar Power Co [1988] Supp 1 SCR 627, the Supreme Court has said that an
exercise of power whether legislative or administrative will be set aside on such grounds as manifest error in the exercise of
power; if exercise of power is manifestly arbitrary; if power is exercised on a non-consideration or non-application of mind to
relevant factors, if power is exercised on the basis of non-existent or patently erroneous facts.
The Supreme Court has ruled in State of Rajasthan v Union of India AIR 1977 SC 1361 [LNIND 1977 SC 214] [LNIND 1977 SC
214] [LNIND 1977 SC 214], State of Rajasthan v Union of India (1977) 3 SCC 592 [LNIND 1977 SC 214] [LNIND 1977 SC 214]
[LNIND 1977 SC 214], State of Rajasthan v Union of India [1978] 1 SCR 1 [LNIND 1977 SC 214] [LNIND 1977 SC 214] [LNIND
1977 SC 214], that a Presidential proclamation under Constitution of India art 356, which ought to be regarded as legislative in
nature because of its generality can be challenged if power is exercised mala fide.
However, in B D Gupta v State of Uttar Pradesh AIR 1991 SC 526, B D Gupta v State of Uttar Pradesh (1991) Supp 1 SCC, B
D Gupta v State of Uttar Pradesh (1990) 3 JT 712, where certain service rules were challenged as mala fide and arbitrary, the
Surpreme Court observed that it is well-established that no legislation can be challenged on the ground of mala fide.
This proposition does apply to a legislature which is a democratically elected body. However, it is questionable that it should
apply to bureaucratic legislation as well. On principle and logic, if mala fide of an authority can vitiate an order of administrative
nature, there is no reason why mala fide ought not to vitiate legislative order as well made by the administration. Thus,
bureaucracy and an elected legislature, are incomparable.
In Jagdish Prasad Sinha v Bhagwat Prasad AIR 1989 SC 1795, Jagdish Prasad Sinha v Bhagwat Prasad (1989) 3 SCC 610
[LNIND 1989 SC 370] [LNIND 1989 SC 370] [LNIND 1989 SC 370], Jagdish Prasad Sinha v Bhagwat Prasad [1989] 3 SCR 658
[LNIND 1989 SC 370] [LNIND 1989 SC 370] [LNIND 1989 SC 370], service rules were quashed by the Supreme Court on the
ground that the government was motivated by extraneous considerations in issuing the rules.
13 Baban Naik v Union of India, New Delhi AIR 1979 Goa,Daman & Diu 9,, furnishes an example of delegated legislation
being held ultra vires because it sought to alter the policy of the parent Act. A notification exempting a society from the
operation of a statutory provision was held bad because it affected the substance of the provisions of the parent Act in question.
The notification did not give any preferential treatment to the society but was prejudicial to the same. See Customs & Excise
Comr s v Cure & Deeley [1961] 3 All ER 641, Jayantilal Amrutlal Shodhan v Union of India AIR 1970 Guj 108 [LNIND 1968
GUJ 103] [LNIND 1968 GUJ 103] [LNIND 1968 GUJ 103], Jayantilal Amrutlal Shodhan v Union of India 11 Guj LR 208.
14 In T B Ibrahim, Proprietor, Bus Stand, Tanjore v Regional Transport Authority, Tanjore AIR 1953 SC 79 [LNIND 1952 SC
81] [LNIND 1952 SC 81] [LNIND 1952 SC 81], T B Ibrahim, Proprietor, Bus Stand, Tanjore v Regional Transport Authority,
Tanjore [1955] 1 SCR, T B Ibrahim, Proprietor, Bus Stand, Tanjore v Regional Transport Authority, Tanjore (1955) SCJ 36
[LNIND 1954 SC 146] [LNIND 1954 SC 146] [LNIND 1954 SC 146], the rule-making power was conferred for the purpose of
carrying into effect the provisions of this chapter. The purpose was control of transport of vehicles. Rules relating to fixing or
altering bus-stand were held to fall within the power of the authority and were not foreign to the purpose of the chapter.
15 Board of Directors of Andhra Pradesh Cooperative Central Land Mortgage Bank Ltd v Chittor Primary Cooperative Land
Mortgage Bank Ltd AIR 1974 SC 1692 [LNIND 1974 SC 56] [LNIND 1974 SC 56] [LNIND 1974 SC 56], Board of Directors of
Andhra Pradesh Cooperative Central Land Mortgage Bank Ltd v Chittor Primary Cooperative Land Mortgage Bank Ltd (1974) 1
SCC 608 [LNIND 1974 SC 56] [LNIND 1974 SC 56] [LNIND 1974 SC 56], Board of Directors of Andhra Pradesh Cooperative
Central Land Mortgage Bank Ltd v Chittor Primary Cooperative Land Mortgage Bank Ltd [1974] 3 SCR 440 [LNIND 1974 SC
56] [LNIND 1974 SC 56] [LNIND 1974 SC 56]; Jayantilal Amrutlal Shodhan v Union of India AIR 1970 Guj 108 [LNIND 1968
GUJ 103] [LNIND 1968 GUJ 103] [LNIND 1968 GUJ 103], Jayantilal Amrutlal Shodhan v Union of India 11 Guj LR 208. See
also Minerva Talkies, Bangalore v State of Kernataka AIR 1988 SC 526 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988
SC 1], Minerva Talkies, Bangalore v State of Kernataka (1988) Supp SCC 176, Minerva Talkies, Bangalore v State of
Kernataka [1988] 2 SCR 511 [LNIND 1988 SC 1] [LNIND 1988 SC 1] [LNIND 1988 SC 1].
16
The Himachal Pradesh Ceiling on Land Holdings Act 1972 conferred power on the state government to make rules for carrying
out the purposes of this Act. Under this power, the government made a rule prohibiting transfer of any land subservient to tea
plantations. In Kunj Behari Lal Butail v State of Himachal Pradesh AIR 2000 SC 1069 [LNIND 2000 SC 344] [LNIND 2000 SC
344] [LNIND 2000 SC 344], Kunj Behari Lal Butail v State of Himachal Pradesh (2000) 3 SCC 40 [LNIND 2000 SC 344] [LNIND
2000 SC 344] [LNIND 2000 SC 344], Kunj Behari Lal Butail v State of Himachal Pradesh (2000) 2 JT 307, the Supreme Court
declared that rule invalid as there was no legislative intent delegating the power to enact any prohibition on transfer of land
expressly or by necessary implication. On the other hand, by placing complete prohibition or transfer on land subservient to tea
estates no purpose sought to be achieved by the Act, is advanced and so also such prohibition cannot be sustained. Further,
tea estates had been excluded from the purview of the Act. Clearly a rule placing an embargo on the right to transfer land
subservient to tea estates was beyond the rule-making power of the state government.
In Sales Tax Officer, Ponkunnam v KI Abraham AIR 1967 SC 1823 [LNIND 1967 SC 124] [LNIND 1967 SC 124] [LNIND 1967
SC 124], the sate government having rule-making power to carry out the purposes of the Act made rules prescribing the last
date for filing declaration forms by the dealers in order to get the benefit of concessional rates on interstate sales. The Supreme
45 45
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Court struck down the rules as it found that the statute authorised the making of rules only for prescribing what particulars were
to be mentioned in the forms, etc, and not for prescribing a time-limit for filing the forms.
Also see Deepak Theatre, Dhuri v State of Punjab AIR 1992 SC 1519 [LNIND 1991 SC 672] [LNIND 1991 SC 672] [LNIND
1991 SC 672], Deepak Theatre, Dhuri v State of Punjab (1992) Supp 1 SCC 684, Deepak Theatre, Dhuri v State of Punjab
(1991) 6 JT 489 [LNIND 1991 SC 672] [LNIND 1991 SC 672] [LNIND 1991 SC 672]. A rule made by the Delhi Administration
stipulating that the rates of admission to the auditorium shall be fixed or revised only when prior approval of the Lieutenant
Governor of Delhi has been held to be not justified under Cinematograph Act 1952 s 16(1). The Cinemotegraph Act 1952
authorises the prescription of the terms, conditions and restrictions subject to which licences may be issued to cinema
exhibitors. Rules have to be made so as to facilitate the achieving and carrying out the purposes of the Act.
17
Defence of India Act 1939 s 2(1), gave power to the Central Government to make such rules as appear to it to be necessary or
expedient for securing the defence of India, the public safety.... etc, Then, without prejudice to the generality of the powers gave
a limited power to the government to apprehend and detain persons in preventive detention: see Emperor v Sibnath Benerji
AIR 1945 PC 156, Emperor v Sibnath Benerji 221 IC 243, Emperor v Sibnath Benerji 72 IA 241, overruling Keshav Talpade v
Emperor AIR 1943 FC 1, Keshav Talpade v Emperor 207 IC 1, Keshav Talpade v Emperor (1943) ILR KFC 26.
Also see Santosh Kumar Jain v The State AIR 1951 SC 201 [LNIND 1951 SC 16] [LNIND 1951 SC 16] [LNIND 1951 SC 16],
Santosh Kumar Jain v The State [1951] SCR 303, Santosh Kumar Jain v The State (1951) SCJ 291 [LNIND 1951 SC 16]
[LNIND 1951 SC 16] [LNIND 1951 SC 16]; P Kasinathan v Chief Secretary to Government of Madras AIR 1967 Mad 21 [LNIND
1965 MAD 355] [LNIND 1965 MAD 355] [LNIND 1965 MAD 355], P Kasinathan v Chief Secretary to Government of Madras
(1967) Cr LJ 85, P Kasinathan v Chief Secretary to Government of Madras (1966) 2 Mad LJ 53; K Ramanathan v State of
Tamil Nadu AIR 1985 SC 660 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69], K Ramanathan v State of Tamil
Nadu (1985) 2 SCC 116 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69], K Ramanathan v State of Tamil Nadu
[1985] 2 SCR 1028 [LNIND 1985 SC 69] [LNIND 1985 SC 69] [LNIND 1985 SC 69]; D K Trivedi & Sons v State of Gujarat AIR
1986 SC 1323 [LNIND 1986 SC 50] [LNIND 1986 SC 50] [LNIND 1986 SC 50], D K Trivedi & Sons v State of Gujarat (1986)
Supp SCC 20, D K Trivedi & Sons v State of Gujarat [1986] 1 SCR 479.
18 This proposition is illustrated by Regina v St Aloysing Higher Elementary School AIR 1971 SC 1920 [LNIND 1971 SC 178]
[LNIND 1971 SC 178] [LNIND 1971 SC 178], Regina v St Aloysing Higher Elementary School (1972) 4 SCC 188 [LNIND 1971
SC 178] [LNIND 1971 SC 178] [LNIND 1971 SC 178], Regina v St Aloysing Higher Elementary School [1971] Supp SCR 6.
Under the relevant Act, a general power was conferred on the government to make rules 'to carry out all or any of the purposes
of the Act. Then, certain heads were specified for which rules could be made. One of these heads was 'conditions for
recognition of elementary schools'. There was, however, no provision in the Act itself relating to recognition of schools. The
Supreme Court held that the rules made under the specific head related to no purpose of the Act and so the rules could not be
valid as they would not satisfy the condition precedent for such rule-making, namely, that they can be made only 'to carry out all
or any of the purposes of this Act'.
19 Indian Aluminium Co v Kerala State Electricity Board AIR 1975 SC 1967 [LNIND 1975 SC 225] [LNIND 1975 SC 225]
[LNIND 1975 SC 225]; Municipal Board Maunath Bhanjan v Swadeshi Cotton Mills Co Ltd AIR 1977 SC 1055 [LNIND 1977 SC
60] [LNIND 1977 SC 60] [LNIND 1977 SC 60], Municipal Board Maunath Bhanjan v Swadeshi Cotton Mills Co Ltd (1977) 1 SCC
875 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60], Municipal Board Maunath Bhanjan v Swadeshi Cotton
Mills Co Ltd [1977] 2 SCR 865 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60].
20
See Kruse v Johnson (1898) 2 QB 91, Sparks v Edward Ash Ltd (1943) IKB 223; Taylor v Brighton Borough Council (1947) 1
KB 736, 748-9.
The tenability of this proposition appears to have been shaken by the House of Lords decision in Mceldowney v Forde [1969] 2
All ER 1039, where views were expressed that a ministerial regulation can be held void on such grounds as vagueness,
ambiguity, arbitrariness, uncertainty, unreasonableness and bad faith.
In McEldowney v Forde above, however, the regulation in question was upheld by the House by 3:2 against the charge of being
too vague and so arbitrary as to be wholly unreasonable.
Yardley, 'A Source Book of English Administrative Law' 52-3 (1970). Also, Alan Wharam, 'Judicial Control of Delegated
Legislation' v 36 Mod LR 611 at 622 (1973).
In Britain, the test of unreasonableness has been laid down by Diplock LJ in Mixnam Properties Ltd v Chertsey UDC [1964] 1
QB 214 as follows: Thus, the kind of unreasonableness which invalidates a bye-law is not the antonym of 'reasonableness' in
the sense of which that expression is used in common law, but such manifest arbitrariness, injustice or partiality that Parliament
never intended to give authority to make such rules is unreasonable and ultra vires...
For cases in India applying the doctrine of unreasonableness, see: Maharashtra SBO & HS Maharashtra State Board of
Secondary and Higher Secondary Education v Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543 [LNIND 1984 SC 173]
[LNIND 1984 SC 173] [LNIND 1984 SC 173], Maharashtra SBO & HS Maharashtra State Board of Secondary and Higher
46 46
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Secondary Education v Paritosh Bhupesh Kurmarsheth (1984) 4 SCC 27 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND
1984 SC 173], Maharashtra SBO & HS Maharashtra State Board of Secondary and Higher Secondary Education v Paritosh
Bhupesh Kurmarsheth [1985] 1 SCR 29 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173]; HS Suman v
Rehabilitation Ministry Employees Cooperative House Building Society Ltd, New Delhi AIR 1991 SC 2160 [LNIND 1991 SC
421] [LNIND 1991 SC 421] [LNIND 1991 SC 421], HS Suman v Rehabilitation Ministry Employees Cooperative House Building
Society Ltd, New Delhi (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421], HS Suman v
Rehabilitation Ministry Employees Cooperative House Building Society Ltd, New Delhi [1991] 3 SCR 839 [LNIND 1991 SC 421]
[LNIND 1991 SC 421] [LNIND 1991 SC 421].
21
Constitution of India arts 14 and 19 see: [005.006]; [80]CONSTITUTIONAL LAW.
In Indian Council of Legal Aid and Advice v Bar Council of India AIR 1995 SC 691 [LNIND 1995 SC 84] [LNIND 1995 SC 84]
[LNIND 1995 SC 84], Indian Council of Legal Aid and Advice v Bar Council of India (1995) 1 SCC 732 [LNIND 1995 SC 84]
[LNIND 1995 SC 84] [LNIND 1995 SC 84], Indian Council of Legal Aid and Advice v Bar Council of India (1995) 1 JT 423, the
rule in question was also held to be discriminatory, arbitrary and unreasonable. In State of Mysore v Malick Hashim & Co
(1973) 31 STC 358, the Supreme Court applied the test of unreasonableness to the rules made by the government and struck
them down because they were wholly unreasonable.
The ruling in B S Yadav v State of Haryana AIR 1981 SC 561 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC
437], B S Yadav v State of Haryana (1980) Supp SCC 524, B S Yadav v State of Haryana [1981] 1 SCR 1024 [LNIND 1980 SC
437] [LNIND 1980 SC 437] [LNIND 1980 SC 437], also appears to come very close to saying that unreasonable rules would be
ultra vires.
In AIR India v Nergesh Meerza AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], India v
Nergesh Meerza (1988) 4 SCC 335, India v Nergesh Meerza [1982] 1 SCR 438 [LNIND 1981 SC 366] [LNIND 1981 SC 366]
[LNIND 1981 SC 366], a regulation made by AIR India, a statutory corporation, providing for termination of service of an AIR
hostess on her first pregnancy has been held to be arbitrary and abhorrent to the notions of a civilised society.
Central Inland Water Transport Corpn Ltd v Brojo Nath AIR 1986 SC 1571 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND
1986 SC 560], Central Inland Water Transport Corpn Ltd v Brojo Nath (1986) 3 SCC 156 [LNIND 1986 SC 560] [LNIND 1986
SC 560] [LNIND 1986 SC 560], Central Inland Water Transport Corpn Ltd v Brojo Nath [1986] 2 SCR 278 [LNIND 1986 SC 560]
[LNIND 1986 SC 560] [LNIND 1986 SC 560]; MK Agarwal v Gurgaon Gramin Bank AIR 1988 SC 286, MK Agarwal v Gurgaon
Gramin Bank (1987) Supp SCC 643, MK Agarwal v Gurgaon Gramin Bank (1987) 4 JT 511; Delhi Transport Corporation v
Delhi Transport Corpration, Mazdoor Congress AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC
824], Delhi Transport Corporation v Delhi Transport Corpration, Mazdoor Congress (1990) 3 JT 725 [LNIND 1990 SC 824]
[LNIND 1990 SC 824] [LNIND 1990 SC 824], Delhi Transport Corporation v Delhi Transport Corpration, Mazdoor Congress
(1991) Lab IC 91.
Rules have been declared unreasonable, inter alia, in the following cases: Haribans Misra v Railway Board, AIR 1989 SC 696
[LNIND 1989 SC 12] [LNIND 1989 SC 12] [LNIND 1989 SC 12], Haribans Misra v Railway Board, (1989) 2 SCC 84 [LNIND
1989 SC 12] [LNIND 1989 SC 12] [LNIND 1989 SC 12], Haribans Misra v Railway Board, [1989] 1 SCR 78 [LNIND 1989 SC 12]
[LNIND 1989 SC 12] [LNIND 1989 SC 12]; Indravadan H Shah v State of Gujarat AIR 1986 SC 1035 [LNIND 1986 SC 89]
[LNIND 1986 SC 89] [LNIND 1986 SC 89], Indravadan H Shah v State of Gujarat (1986) Supp SCC 254 [LNIND 1986 SC 89]
[LNIND 1986 SC 89] [LNIND 1986 SC 89], Indravadan H Shah v State of Gujarat [1986] 1 SCR 926 [LNIND 1986 SC 89]
[LNIND 1986 SC 89] [LNIND 1986 SC 89]; Senior Suptd of Post Office v Izhar Hussain AIR 1989 SC 2262 [LNIND 1989 SC
396] [LNIND 1989 SC 396] [LNIND 1989 SC 396], Senior Suptd of Post Office v Izhar Hussain (1989) 4 SCC 318 [LNIND 1989
SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396], Senior Suptd of Post Office v Izhar Hussain [1989] 3 SCR 796 [LNIND
1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989 SC 396]; State of Maharashtra v Chandrakant AIR 1983 SC 803 [LNIND
1983 SC 165] [LNIND 1983 SC 165] [LNIND 1983 SC 165], State of Maharashtra v Chandrakant (1983) 3 SCC 387 [LNIND
1983 SC 165] [LNIND 1983 SC 165] [LNIND 1983 SC 165], State of Maharashtra v Chandrakant [1983] 3 SCR 337 [LNIND
1983 SC 165] [LNIND 1983 SC 165] [LNIND 1983 SC 165]; Indian Council of Legal Aid and Advice v Bar Council of India AIR
1995 SC 691 [LNIND 1995 SC 84] [LNIND 1995 SC 84] [LNIND 1995 SC 84], Indian Council of Legal Aid and Advice v Bar
Council of India (1995) 1 SCC 732 [LNIND 1995 SC 84] [LNIND 1995 SC 84] [LNIND 1995 SC 84], Indian Council of Legal Aid
and Advice v Bar Council of India (1995) 1 JT 423, Maharashtra State Board of Secondary and Higher Secondary Education v
Paritosh Bhupesh Kurmarsheth AIR 1984 SC 1543 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173],
Maharashtra State Board of Secondary and Higher Secondary Education v Paritosh Bhupesh Kurmarsheth (1984) 4 SCC 27
[LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND 1984 SC 173], Maharashtra State Board of Secondary and Higher
Secondary Education v Paritosh Bhupesh Kurmarsheth [1985] 1 SCR 29 [LNIND 1984 SC 173] [LNIND 1984 SC 173] [LNIND
1984 SC 173]. Also see Indian Express Newspapers (Bombay) Pvt Ltd v Union of India AIR 1986 SC 540, 542, Indian Express
Newspapers (Bombay) Pvt Ltd v Union of India (1985) 1 SCC 641 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984
SC 337], Indian Express Newspapers (Bombay) Pvt Ltd v Union of India [1985] 2 SCR 287 [LNIND 1984 SC 337] [LNIND 1984
SC 337] [LNIND 1984 SC 337].
22 In Trustees of the Port of Madras v Aminchand Pyarelal AIR 1975 SC 1935 [LNIND 1975 SC 330] [LNIND 1975 SC 330]
[LNIND 1975 SC 330], Trustees of the Port of Madras v Aminchand Pyarelal (1976) 3 SCC 167 [LNIND 1975 SC 330] [LNIND
1975 SC 330] [LNIND 1975 SC 330], Trustees of the Port of Madras v Aminchand Pyarelal [1976] 1 SCR 721 [LNIND 1975 SC
47 47
Page
330] [LNIND 1975 SC 330] [LNIND 1975 SC 330], the question was whether the rates fixed by the Madras port trust could be
questioned as unreasonable. The Madras High Court has ruled that since it was a bye-law, it would be subject to the test of
reasonableness. The Supreme Court disagreed with the High Court's view on the ground that a bye-law must be regulatory in
nature whereas the power to frame the rates is not a regulatory power 'to order that something must be done or something may
not be done. The Supreme Court also ruled that the scale of rates, not being a bye-law, would not be subject to the test of
reasonableness.
23 The tenability and validity of the Supreme Court's arguments in Trustees of the Port of Madras v Aminchand Pyarelal AIR
1975 SC 1935 [LNIND 1975 SC 330] [LNIND 1975 SC 330] [LNIND 1975 SC 330], Trustees of the Port of Madras v Aminchand
Pyarelal (1976) 3 SCC 167 [LNIND 1975 SC 330] [LNIND 1975 SC 330] [LNIND 1975 SC 330], Trustees of the Port of Madras
v Aminchand Pyarelal [1976] 1 SCR 721 [LNIND 1975 SC 330] [LNIND 1975 SC 330] [LNIND 1975 SC 330]is very much
debatable. The term 'bye-law' is usually used in relation to the delegated legislation made by municipal and other statutory
bodies. Also, there is no fixed connotation and such delegated legislation may be called as 'rules' or 'regulations' instead of
bye-laws. It is common knowledge that municipal or other statutory bodies make bye-laws not only for regulatory purposes but
also other purposes, including taxation. While laying down rates, the statutory body functions under a statutory power; the rates
apply generally, and therefore, the power to fix rates is usually regarded as legislative. It might also be pointed out that
delegated legislation may also be adjudged as unreasonable under the Constitution of India arts 14 or 19. Article 14 is now
being given an expansive interpretation by the courts to cover quite a few aspects of administrative process.

ULTRA VIRES/[005.024] Procedural ultra vires
[005.024] Procedural ultra vires In the making of delegated legislation, the rule-making authority may be
required by the parent statute to follow certain procedures.
A question arises whether the rules made without following the prescribed procedure are to be regarded as
valid or not. The answer to this question depends upon whether the specific procedural requirement is
regarded as directory or mandatory.
The courts take the view that while the directory and procedural norms may be substantially complied with,
the mandatory norms of procedure must be meticulously observed1.
Non-observance of a mandatory procedural norm would make the rules so made ultra vires. This is known as
procedural ultra vires. Thus, to apply the doctrine of procedural ultra vires, the first question for the courts to
decide is whether the provision in the Act prescribing the procedure is directory or mandatory. Whether a
procedural norm is mandatory or directory is ultimately a matter for the court to decide depending on how
much significance does the court attach to the prescribed procedure2. A provision requiring the rule-making
authority to consult some specific body is usually regarded as mandatory3.
In the same category falls the procedure seeking to provide an opportunity to the affected persons to file
objections against any proposed rule. A rule made without providing such an opportunity will be invalid4. If a
statute requires that three months' notice be given to effectuate the rules, then giving of such a notice is
mandatory5. Similarly, where the state governments are directed to make rules with the concurrence of the
Central Government, amendments made to the existing rules by a state government without the concurrence
of the Central Government were held to be bad6.
A simple laying procedure before Parliament without any further parliamentary action being required as
regards the rules is regarded merely as directory7.
1 While a mandatory provision must be strictly complied with, substantial compliance is sufficient with respect to a statutory
provision: Raza Buland Sugar Co Ltd, Rampur v Municipal Board, Rampur AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND
1964 SC 294] [LNIND 1964 SC 294], Raza Buland Sugar Co Ltd, Rampur v Municipal Board, Rampur [1965] 1 SCR 970
[LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294], Raza Buland Sugar Co Ltd, Rampur v Municipal Board,
Rampur (1965) 2 SCA 431 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294].
48 48
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2 In this connection, the Supreme Court has stated in Raza Buland Sugar Co Ltd, Rampur v Municipal Board, Rampur AIR
1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294], Raza Buland Sugar Co Ltd, Rampur v
Municipal Board, Rampur [1965] 1 SCR 970 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294], Raza Buland
Sugar Co Ltd, Rampur v Municipal Board, Rampur (1965) 2 SCA 431 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND
1964 SC 294]. 'The purpose for which the provision has been made and its nature, the intention of the legislature in making the
provision, the serious general inconvenience or injustice to persons resulting from whether the provision is read one way or the
other, the relation of the particular provision to other provisions dealing with the same subject and other considerations which
may arise on the facts of a particular case, including the language of the provision have all to be taken into account in arriving at
the conclusion whether a particular provision is mandatory or directory.'
The Mines Act 1952 s 59(4), lays down that before the draft regulations are published, the draft shall be referred to every mining
board and it should have a reasonable opportunity of reporting as to the expediency of making the regulations and their
suitability.
The Supreme Court has held this procedural requirement as mandatory and; reference of draft regulations to every mining
board is a pre-requisite for the validity of the regulations. See Banwarilal Agarwalla v State of Bihar AIR 1961 SC 849 [LNIND
1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56], Banwarilal Agarwalla v State of Bihar [1962] 1 SCR 33 [LNIND 1961
SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56], Banwarilal Agarwalla v State of Bihar (1962) 2 SCJ 27 [LNIND 1961 SC 56]
[LNIND 1961 SC 56] [LNIND 1961 SC 56]; Kali Pada Chowdhury v Union of India AIR 1963 SC 134 [LNIND 1962 SC 217]
[LNIND 1962 SC 217] [LNIND 1962 SC 217], Kali Pada Chowdhury v Union of India [1963] 2 SCR 904 [LNIND 1962 SC 217]
[LNIND 1962 SC 217] [LNIND 1962 SC 217], Kali Pada Chowdhury v Union of India (1963) 1 Cr LJ 88.
It is immaterial whether the board makes a report or not, or sends individual opinions of the members, instead of a collective
report of the board': State of Bihar v B L Agarwalla AIR 1966 Pat 411. Also see State of Orissa v Sridhar Kumur Malik AIR
1985 SC 1411 [LNIND 1985 SC 234] [LNIND 1985 SC 234] [LNIND 1985 SC 234], State of Orissa v Sridhar Kumur Malik
(1985) 3 SCC 697 [LNIND 1985 SC 234] [LNIND 1985 SC 234] [LNIND 1985 SC 234], State of Orissa v Sridhar Kumur Malik
[1985] Supp 2 SCR 349.
4 Rajnarain Singh v Chairman, Patna Administration Committee, Patna AIR 1954 SC 569 [LNIND 1954 SC 102] [LNIND 1954
Patna (1954) SCJ 661 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102].
5 Lachmi Narain v Union of India AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], Lachmi
6 K C Pazhanimala v State of Kerala AIR 1966 Pat 41.
7 As to the laying procedure see [005.034].

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(3) IMPLIED
RESTRICTIONS/[005.025] Generally
[005.025] Generally To strengthen judicial control over subordinate legislation, the courts do not confine
themselves merely to the phraseology of the provisions of the parent statute, but go beyond it and imply
certain restrictions on the delegated legislative power1. The underlying idea is that the courts do not
envisage that the rule-making authority should do certain things by using its general rule-making power
without being specifically authorised by law to do so. This judicial approach helps in preserving certain
fundamental democratic values, protecting some basic rights of the people, strengthening judicial control
over delegated legislation and giving a somewhat broader dimension to the doctrine of substantive ultra
vires.
1 Chester v Bateson (1920) 1 KB 829. See R W Paul Ltd v Wheat Commission (1937) AC 139.
49 49
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RESTRICTIONS/[005.026] Exclusion of court's jurisdiction
[005.026] Exclusion of court's jurisdiction An implied restriction is that the jurisdiction of the courts should
not be excluded by means of a rule made in exercise of a general rule-making power. A legislature can do so
by making a law, but a rule-making authority cannot do so unless there is a specific grant of power to it for
the purpose. Access to the court is not to be denied save by clear words to that effect in the statute. The
courts jealously guard the right of the people to take recourse to the courts to settle their disputes.

RESTRICTIONS/[005.027] Retrospective rules
[005.027] Retrospective rules Another implied restriction is against making rules with retrospective effect.
There is no prohibition in the Constitution of India against ex post facto laws, except in the area of criminal
law1. However the courts have consistently taken the view that while a legislature may enact laws with
retrospective effect, a delegate cannot exercise a similar power and give retrospectivity to the rules made by
it unless the parent statute gives it the power to do so, either expressly or by necessary implication. A
general power to make rule to carry out the purposes of the Act does not entitle the government to make
retrospective rules2.
The reason underlying the proposition is that retrospective rules may prejudicially affect the vested rights of
the people and so it is proper that only the legislature, and not the delegate, makes such rules. Accordingly,
the courts declare retrospective rules invalid unless the authority making them has power to do so under the
parent statute3.
The courts have, however, relaxed the rule against retrospectivity of rules somewhat in a few situations4.
1 Jain, 'Indian Constitutional Law'ch 25.
Thus, a notification issued by the government investing a tehsildar with the power of tax recovery with retrospective effect was
held invalid because the parent statute gave no power to the government to make rules with retrospective effect: Income Tax
Officer, Alleppey v M C Ponnoose AIR 1970 SC 385 [LNIND 1969 SC 226] [LNIND 1969 SC 226] [LNIND 1969 SC 226],
Income Tax Officer, Alleppey v M C Ponnoose [1970] 1 SCR 678 [LNIND 1969 SC 226] [LNIND 1969 SC 226] [LNIND 1969 SC
226], Income Tax Officer, Alleppey v M C Ponnoose (1970) 1 SCJ 435. Also Woodcrafts Enterprises Corporation Pvt Ltd v
Sales Tax Officer (1972) 29 STC 315 (Del).
In Hukam Chand v Union of India AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373],
Hukam Chand v Union of India (1972) 2 SCC 601 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373], Hukam
Chand v Union of India [1973] 1 SCR 896 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373], the Supreme
Court held that the Central Government could not amend the rules with retrospective effect as no such power was given to it by
the parent statute.
In Gurcharan Singh v State of Haryana AIR 1974 P & H 223, a legislative order having been held invalid, a fresh order was
issued. A clause in the new order stated that anything done or action taken under the old order should be deemed to have been
taken under the new order. The court declared the clause invalid on the ground of retrospectivity.
In AV Nachane v Union of India AIR 1982 SC 1126 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468], AV
Nachane v Union of India (1982) 1 SCC 205 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468], AV Nachane v
Union of India [1982] 2 SCR 246 [LNIND 1981 SC 468] [LNIND 1981 SC 468] [LNIND 1981 SC 468], it was held that
retrospective amendment of the rules cannot nullify the effect of the writ issued by the court earlier on the subject. These rules
will operate prospectively only as far as that judgment was concerned. An authority which has the power to make subordinate
legislation cannot make it with restrospective effect unless it is so authorised by the legislature which has conferred that power
an it.
50 50
Page
See Bakul Cashew Co v Sales Tax Officer, Quilon AIR 1987 SC 2239 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986
SC 72], Bakul Cashew Co v Sales Tax Officer, Quilon (1986) 2 SCC 365 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND
1986 SC 72], Bakul Cashew Co v Sales Tax Officer, Quilon [1986] 1 SCR 610 [LNIND 1986 SC 72] [LNIND 1986 SC 72]
[LNIND 1986 SC 72].
This principle has been applied in several cases, as for example, see: Income Tax Officer, Alleppey v MC Ponnoose AIR 1970
SC 385 [LNIND 1969 SC 226] [LNIND 1969 SC 226] [LNIND 1969 SC 226], Income Tax Officer, Alleppey v MC Ponnoose
[1970] 1 SCR 678 [LNIND 1969 SC 226] [LNIND 1969 SC 226] [LNIND 1969 SC 226], Income Tax Officer, Alleppey v MC
Ponnoose (1970) 1 SCJ 435; Cannanore Spinning and Weaving Mills Ltd v Collector of Customs and Central Excise, Cochin
AIR 1970 SC 1950 [LNIND 1969 SC 403] [LNIND 1969 SC 403] [LNIND 1969 SC 403], Cannanore Spinning and Weaving Mills
Ltd v Collector of Customs and Central Excise, Cochin (1969) 3 SCC 112 [LNIND 1969 SC 403] [LNIND 1969 SC 403] [LNIND
1969 SC 403], Cannanore Spinning and Weaving Mills Ltd v Collector of Customs and Central Excise, Cochin [1970] 2 SCR
830 [LNIND 1969 SC 403] [LNIND 1969 SC 403] [LNIND 1969 SC 403]; Hukam Chand v Union of India AIR 1972 SC 2427
[LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373], Hukam Chand v Union of India (1972) 2 SCC 601 [LNIND
1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373], Hukam Chand v Union of India [1973] 1 SCR 896 [LNIND 1972 SC
373] [LNIND 1972 SC 373] [LNIND 1972 SC 373]; Vijayalakshmi Rice Mills v State of Andhra Pradesh AIR 1976 SC 1471
[LNIND 1976 SC 114] [LNIND 1976 SC 114] [LNIND 1976 SC 114], Vijayalakshmi Rice Mills v State of Andhra Pradesh (1976)
3 SCC 37 [LNIND 1976 SC 114] [LNIND 1976 SC 114] [LNIND 1976 SC 114], Vijayalakshmi Rice Mills v State of Andhra
Pradesh [1976] 3 SCR 775 [LNIND 1976 SC 114] [LNIND 1976 SC 114] [LNIND 1976 SC 114] at 1473; Regional Transport
Officer, Chittoor v Associated Transport Madras (Pvt) Ltd AIR 1980 SC 1972, Regional Transport Officer, Chittoor v Associated
Transport Madras (Pvt) Ltd (1980) 4 SCC 597 [LNIND 1980 SC 370] [LNIND 1980 SC 370] [LNIND 1980 SC 370], Regional
Transport Officer, Chittoor v Associated Transport Madras (Pvt) Ltd [1981] 1 SCR 627 [LNIND 1980 SC 370] [LNIND 1980 SC
370] [LNIND 1980 SC 370]; Bangalore University v St John's Medical College AIR 1980 Kant 142, Bangalore University v St
John's Medical College (1980) 1 ILR Kant 385, Bangalore University v St John's Medical College (1980) 1 Kant LJ 348;
Accountant General v S Doraisuwamy AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452],
Accountant General v S Doraisuwamy (1981) 4 SCC 93 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452],
Accountant General v S Doraisuwamy [1981] 2 SCR 155 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452];
Bakul Cashew Co v Sales Tax Officer, Quilon AIR 1987 SC 2239 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986 SC
72], Bakul Cashew Co v Sales Tax Officer, Quilon (1986) 2 SCC 365 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND 1986
SC 72], Bakul Cashew Co v Sales Tax Officer, Quilon [1986] 1 SCR 610 [LNIND 1986 SC 72] [LNIND 1986 SC 72] [LNIND
1986 SC 72]; B S Vadera v Union of India AIR 1969 SC 118 [LNIND 1968 SC 90] [LNIND 1968 SC 90] [LNIND 1968 SC 90], B
S Vadera v Union of India [1968] 3 SCR 575 [LNIND 1968 SC 90] [LNIND 1968 SC 90] [LNIND 1968 SC 90], B S Vadera v
Union of India (1969) Lab IC 100; KC Arora v State of Haryana AIR 1987 SC 1858 [LNIND 1984 SC 379] [LNIND 1984 SC 379]
[LNIND 1984 SC 379], KC Arora v State of Haryana (1984) 3 SCC 281 [LNIND 1984 SC 379] [LNIND 1984 SC 379] [LNIND
1984 SC 379], KC Arora v State of Haryana [1984] 3 SCR 623 [LNIND 1984 SC 379] [LNIND 1984 SC 379] [LNIND 1984 SC
379].; PD Aggarwal v State of Uttar Pradesh AIR 1987 SC 1676 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC
475], PD Aggarwal v State of Uttar Pradesh (1987) 3 SCC 622 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC
475], PD Aggarwal v State of Uttar Pradesh [1987] 3 SCR 427 [LNIND 1987 SC 475] [LNIND 1987 SC 475] [LNIND 1987 SC
475].
The Supreme Court has ruled in T R Kapur v State of Haryana AIR 1987 SC 415 [LNIND 1986 SC 522] [LNIND 1986 SC 522]
[LNIND 1986 SC 522], T R Kapur v State of Haryana (1986) Supp SCC 584, T R Kapur v State of Haryana [1987] 1 SCR 427:
The date from which the rules are made to operate must be shown to bear, either from the face of the rules or by extrinsic
evidence, reasonable nexus with the provisions contained in the rules, especially when the retrospective effect extends over a
long period as in this case.
In B S Yadav v State of Haryana AIR 1981 SC 561 [LNIND 1980 SC 437] [LNIND 1980 SC 437] [LNIND 1980 SC 437], B S
Yadav v State of Haryana (1980) Supp SCC 524, B S Yadav v State of Haryana [1981] 1 SCR 1024 [LNIND 1980 SC 437]
[LNIND 1980 SC 437] [LNIND 1980 SC 437], the Supreme Court refused to give retrospective operation to a service rule as the
court found no nexus between the rule and its retrospectivity.
In K Narayanan v State of Karnataka AIR 1994 SC 55 [LNIND 1993 SC 657] [LNIND 1993 SC 657] [LNIND 1993 SC 657], K
Narayanan v State of Karnataka (1993) 5 JT 102 [LNIND 1993 SC 657] [LNIND 1993 SC 657] [LNIND 1993 SC 657], K
Narayanan v State of Karnataka (1993) Lab IC 2259 a service rule made in 1985, but given effect from 1976, was quashed as it
operated viciously against the existing personnel.
When the government issued a notification exempting a commodity from sales tax in the middle of the financial year, but failed
to specify the date from which the notification was to be operative, the Supreme Court ruled that it would be operative from the
beginning of the financial year. The reason adduced was that sales tax was a yearly tax under the law and it was made payable
on the annual taxable turnover of a dealer. So the exemption from tax must operate for the whole year in the absence of any
clear indication to the contrary. This interpretation obviously confers a benefit on the taxpayers: Mathra Parshad v Punjab
(1962) 13 STC 180 [LNIND 1961 SC 378] [LNIND 1961 SC 378] [LNIND 1961 SC 378]; Deputy Commissioner of Commercial
Taxes, Tiruchirapalli Division v C Saravanan and Company (1980) 45 STC 94 (Mad); A Thangal Kunju Musaliar v M
Venkatachalam Potti, Aurhorised Official and Income Tax Officer AIR 1956 SC 246 [LNIND 1955 SC 116] [LNIND 1955 SC 116]
51 51
Page
[LNIND 1955 SC 116], A Thangal Kunju Musaliar v M Venkatachalam Potti, Aurhorised Official and Income Tax Officer [1955] 2
SCR 1196 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC 116], A Thangal Kunju Musaliar v M Venkatachalam
Potti, Aurhorised Official and Income Tax Officer (1956) SCJ 323 [LNIND 1955 SC 116] [LNIND 1955 SC 116] [LNIND 1955 SC
116]: the court disfavours retroactive operation of laws in that it may prejudicially affect vested rights, but no such reason was
involved here There could be no objection to the notification fixing the date of commencement of the Act after its enactment but
from an earlier date than the date of the notification. The Act, as such, has not been given a retrospective operation. There is no
question of affecting any vested rights.
Also see ITC Bhadrachalam Paperboards v Mandal Revenue officer, Andhra Pradesh (1996) 6 SCC 634 [LNIND 1996 SC
2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], ITC Bhadrachalam Paperboards v Mandal Revenue officer, Andhra
Pradesh (1996) 6 Scale 551 [LNIND 1996 SC 2235] [LNIND 1996 SC 2235] [LNIND 1996 SC 2235], ITC Bhadrachalam
Paperboards v Mandal Revenue officer, Andhra Pradesh (1996) 8 JT 67.

RESTRICTIONS/[005.028] Financial levy
[005.028] Financial levy In a democratic system, it is regarded as an important Constitutional principle that
taxation be imposed on the people by the elected legislature which is responsible to the people. In reality, the
power to impose tax is a strong instrument in the hands of the legislative to control the executive. Another
implied restriction read by the courts on the rule-making power is that no tax or financial levy can be imposed
by any bye-law, rule or regulation, made under the general rule-making power, unless the statute under
which the subordinate legislation is being made specifically authorises such a levy1.
1 Bimal Chandra Banerjee v State of Madhya Pradesh AIR 1971 SC 517 [LNIND 1970 SC 322] [LNIND 1970 SC 322] [LNIND
1970 SC 322], Bimal Chandra Banerjee v State of Madhya Pradesh (1970) 2 SCC 467 [LNIND 1970 SC 322] [LNIND 1970 SC
322] [LNIND 1970 SC 322], Bimal Chandra Banerjee v State of Madhya Pradesh [1971] 1 SCR 844 [LNIND 1970 SC 322]
[LNIND 1970 SC 322] [LNIND 1970 SC 322]. This proposition is confirmed by Sharad Kumar Jayantkumar Pasawala v
Ahmedabad Urban Development Authority AIR 1984 Guj 60, Sharad Kumar Jayantkumar Pasawala v Ahmedabad Urban
Development Authority (1984) Guj LH 325, Sharad Kumar Jayantkumar Pasawala v Ahmedabad Urban Development Authority
(1984) 1 25 Guj LR 401: 'Power to charge fees must be express and if such a power is not expressly provided for, there cannot
be any implied power for the same.'
On appeal, the Supreme Court has affirmed this ruling in Ahmedabad Urban Development Authority v Sharadkumar
Jayantikumar Pasawala AIR 1992 SC 2038 [LNIND 1992 SC 424] [LNIND 1992 SC 424] [LNIND 1992 SC 424], Ahmedabad
Urban Development Authority v Sharadkumar Jayantikumar Pasawala (1992) 3 SCC 285 [LNIND 1992 SC 424] [LNIND 1992
SC 424] [LNIND 1992 SC 424], Ahmedabad Urban Development Authority v Sharadkumar Jayantikumar Pasawala (1992) 3 JT
417 [LNIND 1992 SC 424] [LNIND 1992 SC 424] [LNIND 1992 SC 424]; Ahmedabad Urban Development Authority v
Sharadkumar Jayantikumar Pasawala AIR 1992 SC 2038 [LNIND 1992 SC 424] [LNIND 1992 SC 424] [LNIND 1992 SC 424],
Ahmedabad Urban Development Authority v Sharadkumar Jayantikumar Pasawala (1992) 3 SCC 285 [LNIND 1992 SC 424]
[LNIND 1992 SC 424] [LNIND 1992 SC 424], Ahmedabad Urban Development Authority v Sharadkumar Jayantikumar
Pasawala (1992) 3 JT 417 [LNIND 1992 SC 424] [LNIND 1992 SC 424] [LNIND 1992 SC 424].
In Attorney-General v Wilts United Dairies [1922] KB 897 per Atkin, LJ: 'The circumstances would be remarkable indeed which
would induce the court to believe that the legislature had sacrificed all the well-known checks, and precautions, and not in
express words, but by mere implication, had entrusted a Minister of the Crown with undefined and unlimited powers of imposing
charges upon the subject.'

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(4) EXPLANATORY
NOTES/[005.029] Explanatory notes
[005.029] Explanatory notes At times, explanatory notes are appended to the rules. What is the legal status
of these notes? The judicial attitude has been to treat these notes as part of the rules1.
52 52
Page
1 T G Shivachandra Singh v Mysore AIR 1965 SC 280 [LNIND 1964 SC 82] [LNIND 1964 SC 82] [LNIND 1964 SC 82], T G
Shivachandra Singh v Mysore (1967) 2 Lab LJ 246, T G Shivachandra Singh v Mysore (1967) 15 FLR 224. The Rajasthan
Government made some service rules under the Constitution of India art 309, and some explanatory notes were appended
thereto. The Court held in Tara Singh v State of Rajasthan AIR 1975 SC 1487 [LNIND 1975 SC 128] [LNIND 1975 SC 128]
[LNIND 1975 SC 128], Tara Singh v State of Rajasthan (1975) 4 SCC 86 [LNIND 1975 SC 128] [LNIND 1975 SC 128] [LNIND
1975 SC 128], Tara Singh v State of Rajasthan [1975] 3 SCR 1002 [LNIND 1975 SC 128] [LNIND 1975 SC 128] [LNIND 1975
SC 128] that the notes had a legal effect similar to that of the rules themselves. The function of the explanatory notes was to
provide procedure, control discretion and fill up the gaps where the rules were silent. The notes would be of aid not only in
applying the rules but also in interpreting their true import and considering their validity under the Constitution.

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(5) DELAY IN
RULE-MAKING/[005.030] Delay in rule-making
[005.030] Delay in rule-making A usual practice for Parliament is to leave to the executive to bring an Act
enacted by it into force at some future date. Different provisions of the statute may be brought into force from
different dates. What happens if the government sleeps over the matter and does not bring the Act into force
for long? The judicial attitude is not to interfere in such a situation and leave the matter to the executive to
bring the Act into force as and when it likes1.
While rule-making power is conferred on the executive by a statute, the executive does not make rules for
years to come under the enabling Act. Can the government be compelled by the courts to make the rules?
Generally speaking, it may be said that the courts would be helpless in the matter2. The courts will not direct
the executive to frame the Rules. The Act may be implemented even if the rules have not been made.
However if the implementation of the Act is not possible in the absence of the rules, then the court may have
to direct the executive to frame the rules3.
1 The Central Government has been given power to bring into effect the provisions of the 44th amendment of the Constitution
of India. This Constitution amendment confers some safeguards on detenus under preventive detention. The amendment
enacted in 1978 has not so far been notified by the executive. This means that the executive has nullified the will not only of
Parliament, but of the constituent body.
It was held by the Supreme Court in AK Roy v Union of India AIR 1982 SC 710 [LNIND 1981 SC 469] [LNIND 1981 SC 469]
[LNIND 1981 SC 469], AK Roy v Union of India (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981
SC 469], AK Roy v Union of India [1982] 2 SCR 272 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], by a
majority of three to two, that the court cannot compel the executive to bring those provisions into force which it has failed to do
so. In the absence of any objective norms, it is not for the court to substitute its own judgment for that of the government. It is a
matter which lies in the hands of Parliament. The executive being responsible to Parliament, if Parliament considers that the
executive has betrayed its trust by not bringing the amendment into force, it can censure the executive. The dissenting judges
would, however, issue mandamus when these provisions have not been brought into force after the lapse of a reasonable
period and when there exists no practical or administrative difficulty in that regard.
Also see Altemesh Rein v Union of India AIR 1988 SC 1768 [LNIND 1988 SC 361] [LNIND 1988 SC 361] [LNIND 1988 SC
361], Altemesh Rein v Union of India (1988) 4 SCC 54 [LNIND 1988 SC 361] [LNIND 1988 SC 361] [LNIND 1988 SC 361],
Altemesh Rein v Union of India [1988] Supp 2 SCR 223; Common Cause (a regdsociety) v Union of India AIR 2001 Del 93
[LNIND 2000 DEL 932] [LNIND 2000 DEL 932] [LNIND 2000 DEL 932], Common Cause (a regdsociety) v Union of India (2000)
88 DLT 520 [LNIND 2000 DEL 932] [LNIND 2000 DEL 932] [LNIND 2000 DEL 932], Common Cause (a regdsociety) v Union of
India (2000) 55 DRJ 696 [LNIND 2000 DEL 932] [LNIND 2000 DEL 932] [LNIND 2000 DEL 932].
2 Again, the Supreme Court has ruled in Indian Express (Bombay) v Union of India AIR 1986 SC 515 [LNIND 1984 SC 337]
[LNIND 1984 SC 337] [LNIND 1984 SC 337], Indian Express (Bombay) v Union of India (1985) 1 SCC 641 [LNIND 1984 SC
337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], Indian Express (Bombay) v Union of India [1985] 2 SCR 287 [LNIND 1984
SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337] that mandamus cannot be issued to a subordinate rule-making authority
to enact or not to enact a rule which the authority has power to make. Pending making of the rules, the government may carry
on by issuing directions.
3 Chandrakant Muljibhai Parikh v State of Gujarat AIR 2001 Guj 234 [LNIND 2001 GUJ 98] [LNIND 2001 GUJ 98] [LNIND 2001
GUJ 98], Chandrakant Muljibhai Parikh v State of Gujarat (2001) 2 Guj LH 235, Chandrakant Muljibhai Parikh v State of Gujarat
53 53
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(2001) 1 Guj LR 712: the Gujarat High Court has ruled, in the instant case, that if the purpose and obect of the Act, already
passed and brought into force, is defeated or frustrated by inaction on the part of the executive to carry out the mandate of the
legislature, the court cannot sit on the fence feeling helpless. The court can direct the government to frame the rules in such a
situation.

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(6) EXCLUSION OF
JUDICIAL REVIEW/[005.031] Exclusion of judicial review
[005.031] Exclusion of judicial review A formula used at times in the interpretation statutes is that the rules
enacted under the Act would have effect as if the rules were enacted or included in the Act itself. This is
known as the 'as if enacted' clause. In Britain, such a formula does not exclude judicial review of delegated
legislation1.
Such a clause has been used in India as well in some statutes, but its legal effect is not beyond doubt as the
judicial view has not yet been definitive about its implications. The Supreme Court adopted the Herschell
doctrine in a few cases2, but in a few other cases, the Court has declared the rules bad in spite of the 'as if
enacted' clause3.
This is the logical approach to take. There seems to be no reason as to why the courts should not apply the
ultra vires doctrine even when the rules are declared to be effective 'as if enacted in the Act'. The rules are
delegated legislation as the delegate can claim no more power than what the ambit or scope of the
delegation by the parent statute happens to be. Therefore, the rules which are ultra vires the parent statute
are void ab initio and they cannot form part of the Act4. It may also be remembered that in India judicial
review is now regarded as a basic feature of the Constitution5.
Another formula used in the statutes, at times, to exclude judicial review of delegated legislation is that when
the rules are notified, the notification will be conclusive evidence that the rules have been duly made in
accordance with the provisions of the parent Act. The effect of such a clause on judicial review of the validity
of delegated legislation is not very clear. According to one view such a clause cannot oust judicial review on
the ground of substantive ultra vires, or where there is complete lack of jurisdiction in the rule-making
authority to make the rules in question6.
If the statute prescribes some procedure for the making of rules, and the rule-making authority fails to follow
some of the steps in the prescribed procedure, the 'conclusive evidence' clause may be invoked to protect
the rules from being invalidated but only if the steps not taken are of a 'minor' or 'directory' nature7.
The clause does not appear to protect the rules from judicial review if the deviation from the stipulated
procedure is of a fundamental nature, or the breach is of a mandatory provision, or when there is a complete
lack of jurisdiction in the rule-making authority8.
From this point of view, the 'conclusive evidence' clause does not appear to be of much efficacy in
immunising the rules from judicial review for, even in the absence of such a clause, the courts would not
quash delegated legislation when only directory, and not mandatory, procedural norms are ignored to some
extent by the rule-making authority9.
In some cases, judicial dicta may be found to support a wider connotation of the conclusive evidence
clause10.
1 Initially, in Britain, in Institute of Patent Agents v Lockwood (1894) AC 347, Lord Herschell found it difficult to explain the
meaning of these words, or suggest the effect to be given to them, if notwithstanding them the rules were open to review by the
courts. The only meaning he could give to these words was that the rules for all purposes of construction or obligation or
otherwise should be treated exactly as if they were in the Act. This view, thus, sought to exclude the doctrine of ultra vires and
54 54
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accord to the rules of finality and immunity from judicial review. This view was criticised on the ground that it represented the
high watermark of the inviolability of delegation legislation and that it had the effect of making delegated legislation exempt from
judicial review. However, the Herschell doctrine was overruled in Minister of Health v The King, ex p Yaffe (1931) AC 494,
where Lord Dunedin expressed the view that delegated legislation, if inconsistent with the Act, would not be saved and that it
would be bad. Thus, the validity of any rules made under the 'as if enacted' provision remains legally open to question. Only
when what is done falls within the limits of the power conferred, and conforms to the conditions imposed, that the rules acquire
the force of law. Thus, the words as if enacted in the Act do not preclude judicial consideration of 'vires' of the rules.
For criticism of the Herschell doctrine, see: Schwartz, 'Administrative Finality in England' v (1984) 26 Can BR 1072.
Also see Allen Law and Orders (1965)p 228; Committee on Minister's Powers (UK) Report,p 40.
2 Ravulu Subba Rao v Commissioner of Income Tax, Madras AIR 1956 SC 604 [LNIND 1956 SC 49] [LNIND 1956 SC 49]
[LNIND 1956 SC 49], Ravulu Subba Rao v Commissioner of Income Tax, Madras [1956] SCR 577 [LNIND 1956 SC 49] [LNIND
1956 SC 49] [LNIND 1956 SC 49], Ravulu Subba Rao v Commissioner of Income Tax, Madras (1956) SCJ 591 [LNIND 1956
SC 49] [LNIND 1956 SC 49] [LNIND 1956 SC 49]; Orient Weaving Mills (Pvt) Ltd v Union of India AIR 1963 SC 98 [LNIND
1962 SC 93] [LNIND 1962 SC 93] [LNIND 1962 SC 93], Orient Weaving Mills (Pvt) Ltd v Union of India [1962] Supp 3 SCR 481,
Orient Weaving Mills (Pvt) Ltd v Union of India (1963) 1 SCA 278.
3 Chief Commissioner of Ajmer v Radhey Shyam AIR 1957 SC 304 [LNIND 1956 SC 97] [LNIND 1956 SC 97] [LNIND 1956
SC 97], Chief Commissioner of Ajmer v Radhey Shyam [1957] SCR 68 [LNIND 1956 SC 97] [LNIND 1956 SC 97] [LNIND 1956
SC 97], Chief Commissioner of Ajmer v Radhey Shyam (1957) SCJ 191 [LNIND 1956 SC 97] [LNIND 1956 SC 97] [LNIND
1956 SC 97].
In State of Kerala v KM Charia Abdulla & Co AIR 1965 SC 1585 [LNIND 1964 SC 254] [LNIND 1964 SC 254] [LNIND 1964 SC
254], State of Kerala v KM Charia Abdulla & Co [1965] 1 SCR 601 [LNIND 1964 SC 254] [LNIND 1964 SC 254] [LNIND 1964
SC 254], State of Kerala v KM Charia Abdulla & Co (1965) 16 STC 875 [LNIND 1964 SC 254] [LNIND 1964 SC 254] [LNIND
1964 SC 254], the Supreme Court has stated that such a provision attaches no additional sanctity to the rules.
Generally speaking, the High Courts have not followed the Herschell view, see State v Kunja Behari Chandra AIR 1954 Pat
371, State v Kunja Behari Chandra (1954) Cr LJ 1187, State v Kunja Behari Chandra (1954) BLJR 459; State of Madhya
Pradesh v AK Jain AIR 1958 MP 162, State of Madhya Pradesh v AK Jain (1958) Cr LJ 767, State of Madhya Pradesh v AK
Jain (1958) LLJ 321; K Rama Rao Manay v RA Mundkur AIR 1960 Mys 313
4 In General Officer, Commanding-in-Chief v Subhash Chandra Yadav AIR 1988 SC 876 [LNIND 1988 SC 621] [LNIND 1988
SC 621] [LNIND 1988 SC 621], General Officer, Commanding-in-Chief v Subhash Chandra Yadav (1988) 2 SCC 351 [LNIND
1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621], General Officer, Commanding-in-Chief v Subhash Chandra Yadav
[1988] 3 SCR 62 [LNIND 1988 SC 621] [LNIND 1988 SC 621] [LNIND 1988 SC 621], a rule was held ultra vires the Act in spite
of the 'as if enacted' clause in the parent Act. The Supreme Court rejected the argument that the impugned rule had become a
part of the Act as soon as it was made, and, accordingly, the question of its being the parent Act could not arise at all. Rejecting
the argument, the court declared the rule ultra vires the Act and observed: 'It is well settled that rules framed under the
provisions of a statute form part of the statute. In other words, rules have statutory force. However, before a rule can have the
effect of a statutory provisions, two conditions must be fulfilled, namely. (1) it must conform to the provisions of the statute under
which it is framed; and (2) it must also come within the scope and purview of the rule-making power of the authority framing the
rule. If either of these two conditions is not fulfilled, the rule so framed would be void.'
This judicial view has again been reiterated by the Supreme Court in Assistant Collector of Central Excise v Ramakrishnan
Kulwant Rai AIR 1989 SC 1829 [LNIND 1989 SC 231] [LNIND 1989 SC 231] [LNIND 1989 SC 231], Assistant Collector of
Central Excise v Ramakrishnan Kulwant Rai (1989) Supp 1 SCC 541, Assistant Collector of Central Excise v Ramakrishnan
Kulwant Rai [1989] 2 SCR 444 [LNIND 1989 SC 231] [LNIND 1989 SC 231] [LNIND 1989 SC 231].
5 As to judicial review see [005.210] and following.
6 Trust Mai Lachmi Sialkote Bradari v Chairman, Amritsar Improvement Trust AIR 1963 SC 976 [LNIND 1962 SC 144] [LNIND
1962 SC 144] [LNIND 1962 SC 144], Trust Mai Lachmi Sialkote Bradari v Chairman, Amritsar Improvement Trust [1963] SCR
618, Trust Mai Lachmi Sialkote Bradari v Chairman, Amritsar Improvement Trust (1961) 2 SCJ 194 [LNIND 1961 SC 35]
[LNIND 1961 SC 35] [LNIND 1961 SC 35].
7 Vallabhdas v Municipal Committee, Akola AIR 1967 SC 133 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35],
Vallabhdas v Municipal Committee, Akola [1961] 3 SCR 618 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35],
Vallabhdas v Municipal Committee, Akola (1961) 2 SCJ 194 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35];
Municipal Board, Sitapur v Prayag Narain Saigal AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969 SC
12], Municipal Board, Sitapur v Prayag Narain Saigal (1969) 1 SCC 399 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND 1969
SC 12], Municipal Board, Sitapur v Prayag Narain Saigal [1969] 3 SCR 387 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND
1969 SC 12]; Beni Prasad v Jabalpur Improvement Trust AIR 1970 MP 191, Beni Prasad v Jabalpur Improvement Trust (1970)
MP LJ 292, Beni Prasad v Jabalpur Improvement Trust (1970) LLJ 439; Prakash Chand Maheshwari v Zila Parishad,
Muzaffarnagar AIR 1971 SC 1696 [LNIND 1971 SC 293] [LNIND 1971 SC 293] [LNIND 1971 SC 293], Prakash Chand
Maheshwari v Zila Parishad, Muzaffarnagar (1971) 2 SCC 489 [LNIND 1971 SC 293] [LNIND 1971 SC 293] [LNIND 1971 SC
293], Prakash Chand Maheshwari v Zila Parishad, Muzaffarnagar [1971] Supp SCR 761; Tharoo Mal v Puran Chand AIR 1978
SC 306 [LNIND 1977 SC 328] [LNIND 1977 SC 328] [LNIND 1977 SC 328], Tharoo Mal v Puran Chand (1978) 1 SCC 102
[LNIND 1977 SC 328] [LNIND 1977 SC 328] [LNIND 1977 SC 328], Tharoo Mal v Puran Chand [1978] 2 SCR 254 [LNIND 1977
55 55
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8 Raza Buland Sugar Co Ltd, Rampur v Municipal Board, Rampur AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC
294] [LNIND 1964 SC 294], Raza Buland Sugar Co Ltd, Rampur v Municipal Board, Rampur [1965] 1 SCR 970 [LNIND 1964
SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294], Raza Buland Sugar Co Ltd, Rampur v Municipal Board, Rampur (1965) 2
SCA 431 [LNIND 1964 SC 294] [LNIND 1964 SC 294] [LNIND 1964 SC 294]; Municipal Board, Hapur v Raghavendra Kripal
AIR 1966 SC 693 [LNIND 1965 SC 232] [LNIND 1965 SC 232] [LNIND 1965 SC 232], Municipal Board, Hapur v Raghavendra
Kripal [1966] 1 SCR 950.
9 As to 'procedural ultra vires' see [005.024].
10 In Municipal Board Maunath Bhanjan v Swadeshi Cotton Mills Co Ltd AIR 1977 SC 1055 [LNIND 1977 SC 60] [LNIND 1977
SC 60] [LNIND 1977 SC 60], Municipal Board Maunath Bhanjan v Swadeshi Cotton Mills Co Ltd (1977) 1 SCC 875 [LNIND
1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60], Municipal Board Maunath Bhanjan v Swadeshi Cotton Mills Co Ltd
[1977] 2 SCR 865 [LNIND 1977 SC 60] [LNIND 1977 SC 60] [LNIND 1977 SC 60], the Supreme Court considered the scope of
a provision in the parent Act saying that a notification published under it would be conclusive proof that the tax has been
imposed in accordance with the provisions of this Act. The Supreme Court stated, expounding the significance of this clause,
that 'when a probative effect had been given by law making the notification of the imposition of the tax as conclusive proof that
the tax had been imposed in accordance with the provisions of this Act, no evidence could be allowed to combat that fact, and
the imposition was according to the law.
Also see Berar Swadeshi Vanaspati v Shegaon Municipal Committee, Shegaon AIR 1962 SC 420 [LNIND 1957 SC 18] [LNIND
1957 SC 18] [LNIND 1957 SC 18], Berar Swadeshi Vanaspati v Shegaon Municipal Committee, Shegaon [1962] 1 SCR 596,
Berar Swadeshi Vanaspati v Shegaon Municipal Committee, Shegaon (1961) 2 SCJ 613; BK Srinivasan v State of Karnataka
AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62], BK Srinivasan v State of Karnataka (1987)
1 SCC 658 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62], BK Srinivasan v State of Karnataka [1987] 1 SCR
1054 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62].
In BK Srinivasan v State of Karnataka AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62], BK
Srinivasan v State of Karnataka (1987) 1 SCC 658 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62], BK
Srinivasan v State of Karnataka [1987] 1 SCR 1054 [LNIND 1987 SC 62] [LNIND 1987 SC 62] [LNIND 1987 SC 62], the
Supreme Court gave a very liberal connotation to the 'conclusive evidence' clause by metaphorically calling it as the 'Ganga'
clause, ie a dip in the Ganga washes away all sins.This point is discussed further under judicial review of administrative action:
see [005.210] and following.

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(7) LEGISLATIVE
AND PARLIAMENTARY CONTROL/[005.032] Legislative control
[005.032] Legislative control It is the function of the legislature to legislate, but if it seeks to delegate its
primary power to the executive because of some circumstances, it is not only the right of the legislature, but
also its duty as principal, to see how its agent/executive carries out the agency entrusted to it.
Since it is the 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 danger of its objectionable,
abusive and unwarranted use by the administration. Based on this theory, a system of legislative supervision
over delegated legislation has come into being in India1.
1 As to 'delegated legislation' see [005.009] and following.

AND PARLIAMENTARY CONTROL/[005.033] Memorandum on delegation
[005.033] Memorandum on delegation At the Centre, the first step with regard to supervision by the
legislature is taken at the stage of delegation. A rule of procedure of each House of Parliament requires that
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a bill involving proposal for delegation of legislative power must be accompanied by a memorandum
explaining such proposals and drawing attention to their scope, and stating also whether they are of
exceptional or normal character2.
The rule is of an informational nature and is salutary, for the first stage of supervision arises at the stage of
delegation3.
2 In practice, however, the rule does not amount to much as the memoranda accompanying the bills are usually, of a routine
nature and not very informative.
The Lok Sabha Committee on Subordinate Legislation has emphasised that the rule is mandatory and the memorandum
attached to a bill should give full purport and effect of the delegation of power to subordinate authorities, the points which may
be covered in the rules, the particulars of subordinate authorities who are to exercise the delegated power, and the manner in
which such power is to be exercised.
The purpose of the memorandum is to focus the attention of the members of Parliament to the provisions on the bill involving
delegation of legislative power.
3 As to ombudsman in India, see [005.354] and following.

AND PARLIAMENTARY CONTROL/[005.034] Laying procedure
[005.034] Laying procedure The second link in the chain of parliamentary control over delegated legislation
comes into play after the rules are made by the executive. This is achieved by laying procedure.
A method to invoke legislative supervision of delegated legislation is a provision in the delegating statute
requiring laying of the rules before the legislature. 'Laying' is used to inform the Houses of Parliament about
the content of the delegated legislation made by the government from time to time under various statutes1.
There is no general obligation on the administration to lay the rules before the Houses. Whether the rules
made under a statute are to be laid before the Houses or not depends upon the terms of each delegating
statute. Now a days, the laying formula occurs more frequently in the Central statutes. A standard formula
has been evolved for this purpose, which is: 'Every rule made under this Act shall be laid, as soon as may
be, after it is made before each House of Parliament, while it is in session, for a total period of thirty days
which may be comprised in one session or in two or more successive sessions, and if, before the expiry of
the session immediately following the session or the successive sessions aforesaid, both Houses agree to
making any modification in the rule or both Houses agree that the rule should not be made, the rule shall
thereafter have effect only in such modified form or be of no effect, as the case may be; so, however, that
any such modification or annulment shall be without prejudice to the validity of anything previously done
under that rule.'
This formula requires the rules to be laid before each House as soon as possible. The rules are to be laid for
30 session days. This period is comprised in one session or in two or more successive sessions.
Before the expiry of the sessions immediately following the session or the successive sessions aforesaid, if
both Houses agree, they can make any modification in the rules or even annul them. The rules come into
force as soon as they are made and the laying procedure takes effect after that, but if any modification is
made in the rules, or they are annulled, by the Houses then the rules operate in the modified form or be of no
effect, in the future. If they are annulled, then the rules will cease to exist from the date of the annulment. The
rules can be annulled or modified when only both Houses agree. In this formula, the initiative to move a
resolution, to annul or modify the rules has to be taken by the Members of the House. The government is
under no obligation to take any initiative.
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This standardised laying formula has been evolved in India so as to do away with the varying formulae which
were in use earlier resulting in varying practices which caused confusion and ambiguities in the area of
legislative control of delegated legislation.
In this 'laying' formula, there is no time-frame within which the rules have to be laid before the Houses, after
their promulgation. The phraseology used is 'as soon as may be' after the rules are made. In practice, often
the rules are laid long after they are made. This reduces the effectiveness of parliamentary control over
delegated legislation. The simple laying requirement as contained in the above formula is regarded as
directory and not mandatory.
In some exceptional cases, the delegating statute may stipulate that the rules be laid before the Houses
before they become enforceable. In such a case, the rules are laid in the draft form and become effective
either automatically after the passage of the stipulated period or when the Houses pass resolutions affirming
the rules. This is termed as laying with affirmative procedure and is not used frequently in India2. Whether it
is to be used or not depends upon the terms of the delegating Act in question.
The laying requirement is directory when not coupled with the requirement of laying the rules in the draft
form, in which case, the rules cannot come into force without being laid before the Houses. However, in
simple laying formula, as stated above, failure to lay the rules does not affect their legal validity.
The use of the word 'shall' does not make it mandatory. Nevertheless, the responsibility and accountability of
the executive to the legislature remains in tact for failure to lay3.
1 For advantages of the laying procedure, see: Thanmal v Union of India AIR 1959 Raj 206 [LNIND 1959 RAJ 195] [LNIND
1959 RAJ 195] [LNIND 1959 RAJ 195], Thanmal v Union of India (1959) 9 ILR Raj 740, Thanmal v Union of India (1959) Raj
LW 702.
2 See, for instance, the Salaries and Allowances of Ministers Act 1952; The Essential Services Maintenance Act 1968.
The Rajya Sabha Committee on Subordinate Legislation, has recommended that it is highly desirable to follow such a
procedure where the rule-making power may:
(1) trespass unduly on personal rights and liberties;

(2) infringe the rule of law and the rules of natural justice;
(3) impose or increase taxation, fees or charges;
(4) lay down a policy not clearly identifiable in the enabling Act or make a departure in policy;
(5) involve considerations of special importance, eg, powers to create new varieties of criminal offences of a
serious nature.
The Lok Sabha Committee on Subordinate Legislation, has asked the government to examine Acts to find out which of them do not
contain the 'laying' requirement and to incorporate the requirement in the same at the earliest. The Committee has also recommended
the amendment of the General Clauses Act 1897 to provide for laying of the rules, made by the Central Government under Central Acts,
before Parliament.
An example of 'laying' with an affirmative vote is to be found in Water (Prevention and Control of Pollution) Cess Act 1977 s 3 imposes a
cess on every scheduled industry. Under the Water (Prevention and Control of Pollution) Cess Act 1977 s 16(1) an industry could be
added to the schedule to make it subject to the cess. Under the Water (Prevention and Control of Pollution) Cess Act 1977 s 16(2), a
notification proposing addition to the schedule is to be laid before each House of Parliament and, thereafter, within fifteen days, the
Central Government has to seek approval of Parliament to the notification. 'Mere perusal of the Water (Prevention and Control of
Pollution) Cess Act 1977 s 16(2) shows that there has to be a positive act of approval by the Parliament to the issuance of the
notification before it can be held that Schedule I has been amended. Merely laying the notification before each House of Parliament is
not sufficient compliance within the provision of the Water (Prevention and Control of Pollution) Cess Act 1977 s 16(2).' In the instant
case, a notification amending the Schedule so as to add an industry thereto was placed before the Houses of Parliament, but no steps
were taken to have the said notification approved by the Houses. Accordingly, the Supreme Court ruled that the notification did not
become effective and the schedule was never modified and the cess levied on the concerned industry was invalid.
3 Jan Mohanmmed Noor Mohammad Bagban v State of Gujarat AIR 1966 385, Jan Mohanmmed Noor Mohammad Bagban v
State of Gujarat [1966] 1 SCR 505 [LNIND 1965 SC 194] [LNIND 1965 SC 194] [LNIND 1965 SC 194]; Atlas Cycle Industries
Ltd v State of Haryana AIR 1979 SC 1149 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277], Atlas Cycle
Industries Ltd v State of Haryana (1979) 2 SCC 196 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277], Atlas
Cycle Industries Ltd v State of Haryana [1979] 1 SCR 1070 [LNIND 1978 SC 277] [LNIND 1978 SC 277] [LNIND 1978 SC 277];
ITC Bhadrachalam Paperboards v Mandal Revenue officer, Andhra Pradesh (1996) 6 SCC 634 [LNIND 1996 SC 2235] [LNIND
1996 SC 2235] [LNIND 1996 SC 2235], ITC Bhadrachalam Paperboards v Mandal Revenue officer, Andhra Pradesh (1996) 8
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JT 67, ITC Bhadrachalam Paperboards v Mandal Revenue officer, Andhra Pradesh (1996) 6 Scale 551 [LNIND 1996 SC 2235]
[LNIND 1996 SC 2235] [LNIND 1996 SC 2235].
Also see, C B Bourne, ' Delegated Legislation' 28 Can BR 791 (1950); Bailey v Williamson [1873] 8 QB, 118, Bailey v
Williamson (1950) 66 LQR 299; Allen, Law and Orders (1965)p 144; Pearce, 'Delegated Legislation' (1977)pp 105-106.

AND PARLIAMENTARY CONTROL/[005.035] Laying procedure and judicial review
[005.035] Laying procedure and judicial review The laying procedure does not exclude judicial review of
delegated legislation. Laying of rules has no effect on their legal validity. Laying confers no sanctity or
immunity on the rules. The Laying provision has no impact on judicial review on the rules or on the doctrine
of ultra vires. When rules are required to be laid before the legislature, they still remain subject to the
doctrine of ultra vires. Laying does not make the rules valid if they are ultra vires the statute under which they
are made; further laying does not prevent the courts from scrutinizing the validity of the rules vis-a-vis the
relevant statute1. The reason is that the legislature does not probe into the legality of the rules; the courts do.
The functions of the court and the legislature are different. While the legislature looks into the merits of or the
policy underlying the rules in question, a court probes not the merits of the rules but into the legality thereof,
that is whether the rules fall within the parameters of the enabling provision.
At times the 'laying procedure' has been used by the courts as one of the factors to uphold legislation against
an attack on the ground of excessive delegation of legislative power2. This judicial approach seems to be
unjustified, and amounts to the dilution of the doctrine of excessive delegation, as simple laying formula is
merely of a directory nature and, in effect, does not invite any legislative control over the rules made by the
executive.
1 In Hukam Chand v Union of India AIR 1972 SC 2427 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373],
Hukam Chand v Union of India (1972) 2 SCC 601 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373], Hukam
Chand v Union of India [1973] 1 SCR 896 [LNIND 1972 SC 373] [LNIND 1972 SC 373] [LNIND 1972 SC 373], while declaring
that the rules could not be made with retrospective effect, the Supreme Court also ruled that the 'laying' requirement could not
confer validity on the rules.
Also see Bharathidasan University v All India Council for Technical Education AIR 2001 SC 2861 [LNIND 2001 SC 2123]
[LNIND 2001 SC 2123] [LNIND 2001 SC 2123], Bharathidasan University v All India Council for Technical Education (2001) 2
SCC 676, Bharathidasan University v All India Council for Technical Education (2001) 6 Scale 429 [LNIND 2001 SC 2123]
[LNIND 2001 SC 2123] [LNIND 2001 SC 2123]; Kerala State Electricity Board v Indian Aluminium Co Ltd AIR 1976 SC 1031
[LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313], Kerala State Electricity Board v Indian Aluminium Co Ltd
(1976) 1 SCC 466 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313], Kerala State Electricity Board v Indian
Aluminium Co Ltd [1976] 1 SCR 552 [LNIND 1975 SC 313] [LNIND 1975 SC 313] [LNIND 1975 SC 313]; Indian Aluminium Co
v Kerala State Electricity Board AIR 1975 SC 1967 [LNIND 1975 SC 225] [LNIND 1975 SC 225] [LNIND 1975 SC 225], Indian
Aluminium Co v Kerala State Electricity Board (1975) 2 SCC 414 [LNIND 1975 SC 225] [LNIND 1975 SC 225] [LNIND 1975 SC
225], Indian Aluminium Co v Kerala State Electricity Board [1976] 1 SCR 70 [LNIND 1975 SC 225] [LNIND 1975 SC 225]
[LNIND 1975 SC 225]; Regional Transport Officer, Chittoor v Associated Transport Madras (Pvt) Ltd AIR 1980 SC 1872
[LNIND 1980 SC 370] [LNIND 1980 SC 370] [LNIND 1980 SC 370], Regional Transport Officer, Chittoor v Associated Transport
Madras (Pvt) Ltd (1980) 4 SCC 597 [LNIND 1980 SC 370] [LNIND 1980 SC 370] [LNIND 1980 SC 370], Regional Transport
Officer, Chittoor v Associated Transport Madras (Pvt) Ltd [1981] 1 SCR 627 [LNIND 1980 SC 370] [LNIND 1980 SC 370]
[LNIND 1980 SC 370].
In Indian Express Newspapers, Bombay Private Ltd v Union of India AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC
337] [LNIND 1984 SC 337], Indian Express Newspapers, Bombay Private Ltd v Union of India (1985) 1 SCC 641 [LNIND 1984
SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], Indian Express Newspapers, Bombay Private Ltd v Union of India [1985]
2 SCR 287 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], at 541, the Supreme Court has expressed the
view that the fact that a notification is required to be laid before Parliament does not make any substantial difference as regards
the jurisdiction of the court to pronounce upon its validity.
The matter has also been considered by the Supreme Court in SR Bommai v Union of India AIR 1994 SC 1918, SR Bommai v
Union of India (1994) 3 SCC 1, SR Bommai v Union of India (1994) 2 JT 215 at 1975 . A presidential proclamation issued under
the Constitution of India art 356 needs to be laid before, and approved by, the two Houses of Parliament to remain in force after
two months. The question was whether the validity of a proclamation can be questioned in a court after its approval by the
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Houses? Answering in the affirmative, the court ruled that if the proclamation is invalid, it does not stand validated because it is
approved of by the Parliament. Judicial review is in no way inhibited by the fact that rules or regulations have been laid before
Parliament and approved.
See also Wade, 'Administrative Law' (6th Edn)p 870.
The Supreme Court has observed in Dai-Ichi Karkaria Ltd v Union of India, AIR 2000 SC 1741 [LNIND 2000 SC 650] [LNIND
2000 SC 650] [LNIND 2000 SC 650], Dai-Ichi Karkaria Ltd v Union of India, (2000) 4 SCC 57 [LNIND 2000 SC 650] [LNIND
2000 SC 650] [LNIND 2000 SC 650], Dai-Ichi Karkaria Ltd v Union of India, (2000) 4 JT 495 [LNIND 2000 SC 650] [LNIND 2000
SC 650] [LNIND 2000 SC 650]: 'The mere fact that a notification issued under the Customs Acts 25 is required to be laid before
Parliament under the Customs Acts 159 does not make any substantial difference as regards the jurisdiction of the court to
pronounce on its validity'.
2 See Quarry Qwners' Association v State of Bihar AIR 2000 SC 2870 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068] [LNIND
2000 SC 1068], Quarry Qwners' Association v State of Bihar (2000) 8 SCC 655 [LNIND 2000 SC 1068] [LNIND 2000 SC 1068]
[LNIND 2000 SC 1068], Quarry Qwners' Association v State of Bihar (2000) 8 JT 539. While assessing the validity of the
impugned statutory provision on the ground of excessive delegation, the Supreme Court mentioned a simple laying procedure
as one of the grounds to uphold its validity. The court held:'No doubt in the case where the House is entrusted with power to
annul, modify or approve any rule, it plays a positive role and has full control over it, but even where the matter is merely placed
before any House, its positive control over the executive makes even mere laying to play a very vital and forceful role which
keeps a check over the state government concerned.'
The Court seems to be placing an undue emphasis on the significance of a simple laying procedure which is only for
informational purpose. It triggers no automatic control mechanism in the legislature. Even as an informational mechanism, its
efficacy is doubtful.
Also see Delhi Cloth and General Mills Co Ltd v Union of India AIR 1983 SC 937 [LNIND 1983 SC 175] [LNIND 1983 SC 175]
[LNIND 1983 SC 175], Delhi Cloth and General Mills Co Ltd v Union of India (1983) 3 SCC 166, Delhi Cloth and General Mills
Co Ltd v Union of India [1983] SCR 438; Lohia Machines Ltd v Union of India AIR 1985 SC 412, Lohia Machines Ltd v Union of
India (1985) 2 SCC 197 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572], Lohia Machines Ltd v Union of
India [1985] 2 SCR 686 [LNIND 1985 SC 572] [LNIND 1985 SC 572] [LNIND 1985 SC 572].

AND PARLIAMENTARY CONTROL/[005.036] Committee on subordinate legislation
[005.036] Committee on subordinate legislation The parliamentary control is further exercised through
two committees on subordinate legislation1. Each House of Parliament has a committee on subordinate
legislation. The Lok Sabha Committee on Subordinate Legislation is older than its counterpart, the Rajya
Sabha Committee on Subordinate Legislation as the former was established in 1953, and the latter in 1964.
With the institution of these committees, parliamentary control of delegated legislation in India has become
somewhat more effective2.
A review of the reports produced by the two Committees would show that these Committees constitute an
important agency through which parliamentary control over delegated legislation is exercised in India. It is
through these Committees that Parliament keeps a watchful eye on the government departments to whom
the power of legislation is delegated and keeping its control over such delegated legislation. The Committees
have been doing useful work and trying to develop some norms and standards for the administration to
follow in the task of rule-making.
The role of the Committees is not only curative, or critical but also preventive. The value of these
Committees does not lie only in the number of administrative lapses they expose. Their existence keeps the
administration on its guard, and discourages it from doing things which the Committees have criticised, and
thus the administration becomes more careful in using its power of rule-making.
It may, however, be noted that these committees do not go into questions of merits or policy underlying the
delegated legislation, and that the area of administrative policy-making is largely immune from the
committees' scrutiny. To this extent, the efficacy of the Committees is limited for much of the policy is made
today by the administration through its power to make rules and the legislature cannot always effectively
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scrutinise such policies. This weakness in parliamentary control of delegated legislation remains and no
effective method has been devised so far to fill in this gap, except to some extent, through the consultative
technique.
Proposals for such a committee were formulated in Britain by the Donoughmore Committee (CMP) Reportpp 11, 62-64, 68-50.
Since 1973, a Joint Committee on Statutory Instruments of both the Houses has been established. Foulkes, ' 'Introduction to
Administrative Law' v (1976) p 45; Mcgovern, 'The 'The Report of the Joint Committee on Delegated Legislation' v (1973) 36
Mod LR 64.
The need for such committees has arisen because of the fact that mere laying of rules before a House would not be of much
efficacy unless some method is evolved to scrutinise the rules so laid. The House, as a whole, being pressed for time, cannot
exercise any effective supervision over delegated legislation itself. Also, individual members are not adequately equipped to
carry on a scrutiny of the massive and complicated delegated legislation being turned out by the government departments, and
some more organized effort is necessary so that there might be some kind of automatic scrutiny of delegated legislation on
behalf of the House. With this objective in view the Select Committee on Statutory Instruments was established in the House of
Commons in England in 1944.
On the same lines, the two Houses in India have formed the Committees on Subordinate Legislation. The Lok Sabha
Committee on Subordinate Legislation ('Lok Sabha Committee') consists of 15 members, appointed by the Speaker for a year,
so that it represents all political parties in the House in proportion to their respective strength. The chairman is usually a
member of the opposition and ministers are debarred from the committee's membership. It is the tradition of the committee that
all the decisions are arrived at unanimously and party considerations are not allowed to affect their deliberations.
The Rajya Sabha Committee on Subordinate Legislation ('Rajya Sabha Committee') also consists of 15 members who are
nominated by the Chairman of the Rajya Sabha. The Chairman of the Committee is also appointed by the Chairman of the
House. There is no prohibition in a minister becoming a member of the Rajya Sabha Committee. The Committee is to hold
office until a new Committee is nominated.
Generally, each committee is charged with the function of scrutinising and reporting to the House whether the power to make
regulations, rules, etc, conferred by the Constitution of India or delegated by Parliament has been properly exercised within
such delegation.
Each committee is required to scrutinise orders laid before the House and to specifically consider the following:
(1) whether the order is in accord with the general object of the Constitution of India or the Act pursuant to which it
is made;
(2) whether it contains matter which in the opinion of the committee should more properly be dealt with in an Act
of Parliament;
(3) whether it contains imposition of any tax;
(4) whether it directly or indirectly bars jurisdiction of the courts;
(5) whether it gives retrospective effect to any of the provisions in respect of which the Constitution of India or the
Act does not expressly give any such power;
(6) whether it involves expenditure from the Consolidated Fund of India or the public revenues;
(7) whether it appears to make some unusual or unexpected use of the powers conferred by the Constitution of
India or the Act pursuant to which it is made;
(8) whether there appears to have been unjustifiable delay in its publication or the laying of it before Parliament;
and
(9) whether for any reason its form or purport calls for any elucidation.
Each of the Committees places its reports before the respective Houses. The Committee may also bring any other matter relating to the
rules to the notice of the House which it thinks deserves the notice of the House. The Committee may report, along with the grounds, its
view that the rules may be annulled wholly or in part or amended in any respect. The Committee may, if it deems necessary, examine
the representatives of the concerned ministry while considering the rules. The reports of the Committee are not discussed in the House
but the government gives due weight to the views of the Committee and seeks to implement the suggestions made therein.
Some assessment of the work done by the Lok Sabha and Rajya Sabha Committees on Sub-Delegation, and their efficacy as a
supervisory organ over delegated legislation, may be made by referring to the reports of the Lok Sabha and Rajya Sabha
Committees which are replete with comments and criticism of the rules and the way these are made. The Committees have
evolved several propositions to improve rule-making by government agencies and also to protect the interests of the individuals.
As a result of the Committees' suggestions, many improvements have been made in the rules as well as in the provisions
regarding parliamentary supervision. A few of these improvements may be noted here.
(1) The Committees do not take kindly to the attempts made to curtail judicial review through rules and have
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constantly advocated the principle that a substantive provision excluding jurisdiction of courts, if thought
necessary, should be made through Parliament, and not by subordinate legislation.
(2) The Committees have also objected to the vesting of final power of interpretation of rules in the rule-making
authority. It is true that such exclusion of judicial review is not binding on the courts, but the Committees have
pointed out that even then it should not be provided in the rules as it would create an impression in the minds
of the persons concerned that the jurisdiction of the courts has been ousted.
(3) As regards taxation, the Committees have assiduously taken the view that consistent with democratic
principles, a financial levy, whether tax, fee or any other charge, should be imposed by a statute and not by
rules. If Parliament considers it necessary to delegate any financial levy, it should do so expressly or by
necessary implication in the statute.
(4) The Committees have criticised some rules on the ground of using complicated language, or containing
ambiguities, which make it difficult for the general public to understand them. They have emphasised that the
language of the rules should be simple and not complex and should be such as the general public is able to
understand.
(5) The Committees have taken objection to giving retrospective operation to the rules unless such a power has
been expressly conferred by the parent statute.
(6) The Committees have also pointed out from time to time that certain provisions made through rules be better
made through an Act of Parliament.
(7) Generally speaking, the Committees' function is not to criticise or formulate policies embodied in the rules, or
to review them on merits; their task is to scrutinise application of policy, its forms and its results. Such a
restriction is imposed because of the fear that the Committees, consisting of party men, may divide on party
lines or on policy matters which might compromise their efficacy.
(8) The Committees have quite often insisted on the necessity of providing procedural safeguards in the rules
against abuse of administrative power. Thus, it has insisted on the observance of principles of natural justice
where an individual is adversely affected by administrative action under the rules and such principles must
invariably be observed where the rules provide for imposition of penalties, recording of reasons for refusal to
grant a license, or taking some other adverse action against the individual, and making provisions for appeal
against the orders of administrative authorities.
(9) The Committees have stated that the power of search should be exercised subject to certain safeguards, such
as, the officers exercising power of search should pay due regard to the social and religious customs of the
occupants of the premises, witnesses should be present at the time of search, and an inventory of the goods
should be prepared.
(10) It has been emphasised that guidelines should be laid down for the exercise of discretion and that a wide
discretion should not be conferred on an official below a certain rank.
(11) At times, the rules have been found to be ultra vires, discriminatory or unfair.
(12) In some cases the 'removal of difficulties' clause has been used in the rules itself. Under this clause, the
government could remove the difficulties in the operation of the rules in question. The Committee has criticised
the use of the clause in the rules because the government has got the right to amend the rules themselves,
and the directions issued under the clause are not published in the gazette.
(13) A general power has been given to the committees to bring to the notice of the House any matter relating to
an order which in its opinion deserves the notice of the House. Under this head, the committees may point out
such matters in connection with the rules as are not covered by any specific term of reference. The
Committees have thus taken opportunity, inter alia, to comment on (1) the delay in making rules under several
Acts, (2) not framing rules for long periods as over 6, 7 or even 14 years. It is not clear how these Acts, which
provide for certain matters to be regulated by rules, were administered in the absence of such rules. The
Committees have emphasised that delay in making rules should be avoided and in no case the period for
making rules should exceed six months.
(14) The Lok Sabha Committee has also suggested ways and means of publication of rules in the Gazette of India
with a view to make it easy and convenient for the people to locate them.
(15) The Lok Sabha Committee has stated that where draft rules are published to invite comments from the public,
sufficient time, (at least 30 days), must be given to the public for the purpose, and to ensure this the date on
which the gazette containing the draft rules was made available to the public should invariably be mentioned in
the preamble to the rules when they are finally notified.
(16) The present day laying formula, has come in vogue because of the Lok Sabha Committee's effort.
(17) The Committees have constantly objected to delays in laying rules before Parliament after they are made.
They have insisted that the rules be laid before the Houses as soon as possible after they are made.

ADMINISTRATIVE LAW/4. JUDICIAL CONTROL OVER DELEGATED LEGISLATION/(8) OTHER
CONTROLS/[005.037] Publication
[005.037] Publication There is a well-known axiom that ignorance of law is no excuse, but this can apply
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legitimately only when there exist channels for publication of the law enacted from time to time.
It is essential that adequate means are adopted to publicize the rules so that people are not caught in
ignorance of the rules applicable to them in a given situation1.
It will be unfair to make people liable for breaking a rule if it was never published or brought to their notice.
India has no general statutory provision requiring or regulating publication of delegated legislation. However,
when the parent statue requires, and also as a matter of practice, rules are published in the Gazette of
India2. Publication of the rules or delegated legislation is regarded as an essential requirement for their
validity in India. Where the parent statute prescribes the mode of publication or promulgation, that mode
must be followed3.
Even when the law is silent on the point, and makes no stipulation as to publication of the rules made under
it, publication is essential to bring the rules into effect. Thus, publication in the official gazette would be
necessary in such a case4. A statutory provision requiring publication of delegated legislation is regarded as
mandatory5.
Publication of the rules in the gazette has several advantages for the individual.
First, publication of the rules in the official gazette gives authenticity to the rules and it creates certainty in the
mind of the individual that the rules have been duly made.
Secondly, the individual can have easy access to the rules for he knows where to look for the rules under
any statue.
It is, therefore, advantageous for an individual if all the rules are published in the gazette and not in sundry
publications.
Certain statutes specify special modes of publication of the rules made under them. By and large the courts
have held such formulae as mandatory6.
Due publication of the rules in the mode required by the statute, or, in the usual mode, has the legal effect of
notice to all concerned. In such a case, ignorance of the rules cannot be pleaded as defence. This would be
so even though the individual had no reasonable means of actually knowing the rules7.
When does delegated legislation come into force? The day on which it comes into force is connected with
the publication of the rules.
When the date is not mentioned in the rules, there are three possible dates on which they may be held to
have come into force:
(1) the date on which they are made;

(2) the date of their publication; or
(3) in the case of the requirement of their publication in the gazette, or specified mode, the date on
which it is published. The difficulty arises because there is always a time-lag between the
making of the rules and their publication8.
Since publication of rules is deemed to be mandatory for their validity, it is clear that such rules as impose a
liability or an obligation on the individual will become effective only on the date the gazette is published, and
not earlier.
When can the gazette be said to be published? Sometimes there may be a time-lag between the date of
publication which the gazette bears and its actual publication. In such a situation, the date of actual
publication is the effective date9.
The Lok Sabha Committee on Subordinate legislation has made efforts to improve the informational side of
the rule making process10.
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On the whole, the system of publication of rules in the gazette remains unsatisfactory. No yearly
consolidated index or a monthly index is published making of any reference to the original rules, or their
previous amendments whenever the rules are amended, giving of explanatory note to explain the general
purport of the rules, reprinting of the up-todate version of the rules whenever extensively amended, etc.
It is suggested that at least the government should bring out an annual index of subordinate legislation under
the central statutes, apart from simply publishing of subordinate legislation in the drab document called the
Gazette of India. The index should contain the names of the statutes and subordinate legislation published
under those statutes, and also give the following information: (a) Part and pages number of the gazette in
which published; (b) sections of the statutes under which the subordinate legislation has been made; and (c)
a short comment against each subordinate legislation to show how it has affected the earlier subordinate
legislation and the references thereto11.
In Britain, publication of delegated legislation is ensured by the Statutory Instruments Act 1946 (UK). A statutory instrument of a
general nature is to be sent to the Queen's printer to be numbered, printed and sold to the public. In any proceedings against a
person for an offence under a statutory instrument, it is a good defence that the instrument has not been issued by Her
Majesty's Stationery Office at the date of the alleged offence unless it is proved that at that date reasonable steps had been
taken for the purpose of bringing the purport of the statutory instrument to the notice of the persons likely to be affected by it.
The provisions for publicity of delegated legislation have been further strengthened in the USA by the Administrative Procedure
Act 1946 (US). Under the Administrative Procedure Act 1946 (US)s 552 (a) every agency is required to publish in the Federal
register description of its central and field organisation, rules of procedure, substantive rules of general applicability adopted as
authorised by law, and statements of general policy or interpretations of general applicability formulated and adopted by the
agency for the guidance of the public, but not rules addressed to and served upon named persons in accordance with law.
Administrative Procedure Act 1946 (US)s 553(d) requires that substantive rules shall be published at least 30 days before the
effective date thereof, except as otherwise provided by the agency upon good cause found and published with the rules. This
gives a discretion to the agency to bring into immediate force rules which it thinks should be enforced immediately in public
interest.
Apart from publication in the Federal Register, rules are brought out in a codified form in the Code of Federal register each
volume of which contains an annual supplement for the current year containing amendments to the rules made during the last
year. The code is divided into fifty subjectmatter titles, and is revised annually. The Code is a compilation, in logical order, of
federal rules and regulations, arranged on an agency by-agency basis.
The authority for the publication of the Code of Federal Register is to be found in Federal Register Act 1935 (US)s 311(a). This
facilitates the task of an individual in finding a rule and the amendments thereof.
India has no publication comparable to the Federal Register in the USA.
The Government of India commenced, in 1960, the publication of various rules in a codified form under the title 'Statutory Rules
and Orders', but the process had been quite slow. It took 20 years for the government to complete the task of publishing all the
30 volumes by 1980. However, as the Lok Sabha Committee on Subordinate Legislation has pointed out, 'the utility of the
compilation is greatly marred by the fact that bulk of the work has already become out of date': VI Report (VII VS, 1981) pp
27-28.
On important subjects, ministries do bring out manuals containing all relevant statutes and rules made thereunder. However,
very often these publications do not provide up-to-date information.
3 This point was settled by the Supreme Court in Harla v State of Rajasthan AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND
1951 SC 49] [LNIND 1951 SC 49], Harla v State of Rajasthan [1952] SCR 110 [LNIND 1951 SC 49] [LNIND 1951 SC 49]
[LNIND 1951 SC 49], Harla v State of Rajasthan (1952) Cr JT 54. In this case, the law in question made by the executive had
remained buried in the government archives without ever seeing the light of the day. There was no law at the time requiring
publication when the law in question was made. Nevertheless, the Supreme Court held the law to be invalid. The Court
emphasised that promulgation or publication of some reasonable sort is essential to bring a law into force as it would be against
natural justice to punish people under a law of which they had no knowledge and of which they could not, even with the
exercise of reasonable diligence, have acquired any knowledge. However, the court left it vague as to what channels of
publication were to be adopted. Also see B K Srinivasan v State of Karnataka AIR 1987 SC 1059 [LNIND 1987 SC 62] [LNIND
1987 SC 62] [LNIND 1987 SC 62], B K Srinivasan v State of Karnataka (1987) 1 SCC 658 [LNIND 1987 SC 62] [LNIND 1987
SC 62] [LNIND 1987 SC 62], B K Srinivasan v State of Karnataka [1987] 1 SCR 1054 [LNIND 1987 SC 62] [LNIND 1987 SC 62]
64 64
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[LNIND 1987 SC 62]
4 ln State of Maharashtra v Mayer Hans George AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964
SC 415], State of Maharashtra v Mayer Hans George [1965] 1 SCR 123 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND
1964 SC 415], State of Maharashtra v Mayer Hans George (1965) 1 Cr LJ 641, the Supreme Court ruled that, in a situation
where there was no statutory requirement for publication of rules, it would be necessary to publish the rules in the usual form, in
such media as is generally adopted to notify to all persons concerned in the making of the rules. As publication of the rules in
the Gazette of India is the usual method of bringing a rule to the notice of the concerned persons, such publication was held to
be sufficient in this case.
A statutory provision authorised the state government to lay down the syllabi for various examinations and publish the same in
such manner as may be prescribed. Thereafter, the government could prescribe the text books for the various courses.
The Supreme Court ruled that, under the statute, publication of the syllabi was essential. The Court emphasised that
'publication' involves wider publicity than mere minimal communication to the departmental officialdom; it involves publication of
the syllabi to the academic world. State of Madhya Pradesh v Ram Raghubir Prasad Agarwal AIR 1979 SC 888 [LNIND 1979
SC 102] [LNIND 1979 SC 102] [LNIND 1979 SC 102], State of Madhya Pradesh v Ram Raghubir Prasad Agarwal (1979) 4
SCC 686 [LNIND 1979 SC 102] [LNIND 1979 SC 102] [LNIND 1979 SC 102], State of Madhya Pradesh v Ram Raghubir
Prasad Agarwal [1979] 3 SCR 41. See also Narendra Kumar v Union of India AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND
1959 SC 217] [LNIND 1959 SC 217], Narendra Kumar v Union of India [1960] 2 SCR 375 [LNIND 1959 SC 217] [LNIND 1959
SC 217] [LNIND 1959 SC 217], Narendra Kumar v Union of India (1960) SCJ 214; Joint Chief Controller of Imports and Exports
v Aminchand Mutha AIR 1966 SC 478 [LNIND 1965 SC 176] [LNIND 1965 SC 176] [LNIND 1965 SC 176], Joint Chief
Controller of Imports and Exports v Aminchand Mutha [1966] 1 SCR 262 [LNIND 1965 SC 176] [LNIND 1965 SC 176] [LNIND
1965 SC 176]; State of Uttar Pradesh v Kishori Lal Minocha AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500]
[LNIND 1979 SC 500], State of Uttar Pradesh v Kishori Lal Minocha (1980) SCC 8, State of Uttar Pradesh v Kishori Lal Minocha
[1980] 2 SCR 724; Pesala Subramanyam In Re AIR 1950 2 Mad 308, Pesala Subramanyam In Re (1950) 1 Mad WN 221,
Pesala Subramanyam In Re (1950) 1 Mad LJ 35; Harla v State of Rajasthan AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND
1951 SC 49] [LNIND 1951 SC 49], Harla v State of Rajasthan [1952] SCR 110 [LNIND 1951 SC 49] [LNIND 1951 SC 49]
[LNIND 1951 SC 49], Harla v State of Rajasthan (1952) Cr JT 54 and State of Maharashtra v Mayer Hans George AIR 1965
SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415], State of Maharashtra v Mayer Hans George [1965]
1 SCR 123 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415], State of Maharashtra v Mayer Hans George
(1965) 1 Cr LJ 641 See notes 3 and 4 above.
6 Govind Lal Chaggan Lal Patel v Agriculture Produce Market Committee AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND
1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agriculture Produce Market Committee (1975) 2 SCC 482
[LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agriculture Produce
Market Committee [1976] 1 SCR 451 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300].
See, Govind Lal Chaggan Lal Patel v Agriculture Produce Market Committee AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND
1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agriculture Produce Market Committee (1975) 2 SCC 482
[LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agriculture Produce
Market Committee [1976] 1 SCR 451 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300].
See Wade, 'Administrative Law' (1988)pp 878-880. Also see, Griffith and Street, 'Principles of Administrative Law' (1973)p 104.
In State of Maharashtra v Mayer Hans George AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC
415], State of Maharashtra v Mayer Hans George [1965] 1 SCR 123 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964
SC 415], State of Maharashtra v Mayer Hans George (1965) 1 Cr LJ 641, a notification of the Reserve Bank of India, dated 8
November 1962, was published in the Gazette of India on 24 November 1962. The accused had left Switzerland on 27th
November, 1962 and arrived in India the next day bringing with him gold in contravention of the notification. The court held that
the notification was published and made known in India, and its ignorance by the accused was wholly irrelevant.
In the State of Maharashtra v Mayer Hans George AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964
1964 SC 415], State of Maharashtra v Mayer Hans George (1965) 1 Cr LJ 641, the Supreme Court held that at least the rules in
question (notification dated 8 November published on 24 November in the gazette) came into effect on the date of the
publication of the gazette, and the question whether they came into effect at an earlier date was left open.
See State of Maharashtra v Mayer Hans George AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964
1964 SC 415], State of Maharashtra v Mayer Hans George (1965) 1 Cr LJ 641.
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This question arose in G Narayan Reddy v State of Andhra Pradesh (1975) 35 STC 319. A government notification increasing
the rate of sale tax was published in the official gazette dated 1 December 1966. It was actually received by the subscribers on
25 December 1966. The Court on a perusal of the official records found that the gazette was printed and released to the public
on 12 December 1966. It was held that the government notification came into effect only on 12 December 1966 and not earlier.
Also see RKV Motors & Timbers (Pvt) Ltd v Regional Transport Officer AIR 1982 Ker 156 [LNIND 1981 KER 311] [LNIND 1981
KER 311] [LNIND 1981 KER 311], RKV Motors & Timbers (Pvt) Ltd v Regional Transport Officer (1982) Ker LT 166; GTC
Industries Ltd, Bombay v Union of India (1988) 33 ELT 83 [LNIND 1987 BOM 485] [LNIND 1987 BOM 485] [LNIND 1987 BOM
485].
10
In cases where statutes do not require publication of the rules in the official gazette, the Committee has recommended that the
statutes be suitably amended to provide for publication of the rules.
Besides, as a requirement of laying, Lok Sabha Rules of Procedure r 319 stipulates that each regulation, rule, etc, framed in
pursuance of legislative functions delegated by Parliament to a subordinate authority, and which is required to be laid before the
House, shall be numbered centrally and published immediately after its promulgation.
The Committee on Subordinate Legislation has made the following suggestions with regard to publication of rules:
(1) the government should ensure that their notifications containing particular Constitution of India and statutory
rules and orders are published in proper parts and sections of the gazette;
(2) a yearly consolidated index should be issued;
(3) a monthly index should be prepared covering all notifications published in any part and section of the gazette;
(4) notifications regarding rules in each part and section of the gazette should be centrally numbered from year to
year with a distinctive prefix; The distinctive prefix will help in finding out the part of the gazette and the central
number will help in locating the particular notification;
(5) a notification regarding rules should be referred to by its central number and year of its publication.
As a consequence of these suggestions, the government has evolved the following scheme of publication of rules with effect from 1
March 1958.
(a) statutory rules and orders are serially numbered into three separate groups each with a distinct prefix.
(b) general statutory rules and orders of a general character issued by the ministries of Central Government
(other than the Ministry of Defence) and by the Central authorities (other than the Union Territories
Administrator) are prefixed as GSR, are numbered serially and separately and are published in Gazette of
India Part 2 s 3 ss (I); and
(c) those not of general character are published in Gazette of India s 355(iii) Pt 2, are prefixed as so and are
numbered centrally and separately.
(d) statutory rules and orders issued by the Ministry of Defence and prefixed as SRO, are numbered separately,
serially and centrally and are contained in, Gazette of India Part 2 s 4.
(e) rules and orders made by other offices or authorities are contained in other parts of the gazette.
(f) orders issued under the Constitution of India are serially numbered as CO 1, CO2, etc. Each of them is an
annual series.
The Committee has also suggested that the orders be given a number according to their date (publication, and not the date of issue,
which could be given at the top of each order; that separate notifications be published under separate SRO numbers; that several
notifications should not be published under a single number as that is likely to cause confusion and inconvenience to everybody while
making a reference to those notifications individually. Half-yearly indices of the statutory rules and orders should also be prepared.
The various recommendations of the Committee noted here are largely based on the provisions of the Statutory Instruments Act 1946
(UK) and the regulations made thereunder.
Several other suggestions have been made by the Committee to improve the technique of publication of the rules so that they may be
referred to conveniently, located easily and understood by the public, that:
(i) as rules are amended very often, the amended version of the rules should be reprinted very frequently and it
should be done whenever extensive amendments are made to the rules;
(ii) rules and amendments thereto be given short titles in the body and at the top;
(iii) to make it possible to trace back the amendments, the SRO numbers of the previous amendments or the
original rules should be cited in the footnotes whenever rules are amended;
(iv) amendments to the same rules should be published in the gazette bearing the order numbers in the same
sequence as are assigned to the amendments by the ministry;
(v) explanatory notes, not forming part of the rules and amendments should be appended to all rules and
amendments in order to explain their general purport;
(vi) the precise statutory authority under which rules are made should be cited in the preamble of the rules so that
all concerned may know precisely the authority under which the rules have been made;
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(vii) corrigenda to the rules should be published within fifteen days of the publication of the rules in which errors
are found.
11
Apart from the gazette, as stated earlier, there are a few other publications containing rules and statutory orders. The position
from the publication point of view is, however, unsatisfactory on the whole. Consequently, it is not easy to find the amendments
made from time to time in the schedules to the various Acts; whether a particular rule is still in operation or not; whether it has
been amended subsequently and, if so where these amendments could be found; and whether any rules have been framed at
all under an Act.
The Committee has, therefore, suggested that there should be some publication of statutory rules and orders, on the lines of the
United Kingdom's annual publication of statutory instruments, for the convenience of the public.
The government has found two difficulties in accepting the suggestion: (1) pressure of work on the government press which
could not undertake such a voluminous work; and (2) its utility would not be commensurate with the high cost involved and it
would be obsolete in no time. Instead, the government agreed to bring out an up-to-date publication of general statutory rules in
force.
Further, to give wide publicity to the rules, the Committee has suggested that press communiques should also be issued to give
publicity to the general purport and effect of the rules. Further, advance copies of the rules of general character be sent to the
state governments which should give wide publicity to them through their gazettes and also publicise their translation in
recognised state languages.
The Central Government has not favoured advance publicity of the rules in the states as premature leakage or rules might be
prejudicial to the public interest. The government has therefore, accepted the committee's suggestions subject to the rider that
the rules be published in the state gazette soon after their publication at the Centre. Regarding other suggestions, the Central
Government has issued the necessary directions to the state governments.

CONTROLS/[005.038] Consultation of interests
[005.038] Consultation of interests A democratic technique to control the exercise of power of delegated
legislation is consultation with various interests affected by the proposed rule-making. Public participation in
rule-making amounts to democratisation of the rule-making process. It is regarded as a desirable safeguard,
for it enables the interests affected to make their views known to the rule-making authority.
The rationale behind this technique is that legislation is primarily the function of the legislature where various
interests are represented. If a legislature cannot legislate itself, or scrutinise rules made by the
administration, there must at least be a provision for the affected interests to present their point of view to the
concerned rule-making authority. This is one way in which, to some extent, the objection to bureaucratic
legislation may be minimised and an improper use of rule-making power avoided1.
In India, there is no general minimum formalised consultative procedure imposed on a rule-making authority.
It is a well accepted legal proposition that legislative action, whether plenary or subordinate, is not subject to
the rules of natural justice. Accordingly, interests adversely affected by delegated legislation cannot claim a
right to be consulted by the rule-making body2. If consultation is thought to be advisable, the particular parent
Act must prescribe it through a statutory provision. In the absence of any statutory requirement, consultation
cannot be claimed by anyone as a matter of right3. Consultation can be claimed if there is any provision
warranting the same. A consultative legal provision is usually treated as mandatory by the courts.
Consultation can also be claimed on the basis of a legal expectation to this effect4. Although the courts may
not by themselves impose the consultative process in rule-making, yet they have quite often underlined the
importance of such a process and advised the government to follow the same5.
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This process of exchange of ideas is beneficial to both the affected interests insofar as they have an opportunity to impress their
point of view on the authority; to the rule-making authority insofar as it can gather necessary information about the issues
involved and thus, be in a better position to appreciate a particular situation.
A consulative technique is useful in balancing individual interests and administrative exigency. Consultation ensures that
delegated legislation is passed by the authority concerned with adequate knowledge of the problems involved, and that the
rule-making agency has before it all relevant materials so that it does not make decisions on insufficient information.
2 Indian Express Newspapers (Bombay) Pvt Ltd v Union of India AIR 1986 SC 515 [LNIND 1984 SC 337] [LNIND 1984 SC
337] [LNIND 1984 SC 337], Indian Express Newspapers (Bombay) Pvt Ltd v Union of India (1985) 1 SCC 641 [LNIND 1984 SC
337] [LNIND 1984 SC 337] [LNIND 1984 SC 337], Indian Express Newspapers (Bombay) Pvt Ltd v Union of India [1985] 2 SCR
287 [LNIND 1984 SC 337] [LNIND 1984 SC 337] [LNIND 1984 SC 337]; Sundaryas Kanyalal Bhathiya v Collector, Thane AIR
1991 SC 1893 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339], Sundaryas Kanyalal Bhathiya v Collector,
Thane AIR 1990 SC 261 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339], Sundaryas Kanyalal Bhathiya v
Collector, Thane [1989] 3 SCR 405 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339]; Rayalseema Paper
Mills Ltd v Govt of Andhra Pradesh AIR 2002 SC 3699 [LNIND 2002 SC 661] [LNIND 2002 SC 661] [LNIND 2002 SC 661],
Rayalseema Paper Mills Ltd v Govt of Andhra Pradesh (2003) 1 SCC 341 [LNIND 2002 SC 661] [LNIND 2002 SC 661] [LNIND
2002 SC 661], Rayalseema Paper Mills Ltd v Govt of Andhra Pradesh (2002) 8 JT 361.
3 Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92]
[LNIND 1980 SC 92], Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur (1980) 2 SCC 295 [LNIND 1980 SC 92]
[LNIND 1980 SC 92] [LNIND 1980 SC 92], Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur [1980] 2 SCR 1111
[LNIND 1980 SC 92] [LNIND 1980 SC 92] [LNIND 1980 SC 92].
4 For example, In Laxmi Khandsari v State of Uttar Pradesh AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140]
[LNIND 1981 SC 140], Laxmi Khandsari v State of Uttar Pradesh (1981) 2 SCC 600 [LNIND 1981 SC 140] [LNIND 1981 SC
140] [LNIND 1981 SC 140], Laxmi Khandsari v State of Uttar Pradesh [1981] 3 SCR 92 [LNIND 1981 SC 140] [LNIND 1981 SC
140] [LNIND 1981 SC 140], while rejecting the contention of the sugarcane crushers that natural justice should be applied,
before passing the order prohibiting them in a particular area, on the ground that the function was legislative, the Supreme
Court suggested that the government in future, in a similar case, may consider the desirability of giving a bare minimum
hearing. Even if a government were to take an emergent action, it should at least permit a representation from the affected
interests after giving the shortest possible notice.
5 Also see New India Industrial Corporation Ltd, Delhi v Union of India AIR 1980 Del 277 [LNIND 1980 DEL 155] [LNIND 1980
DEL 155] [LNIND 1980 DEL 155]; State of Assam v Bharat Kala Bhandar Ltd AIR 1967 SC 1766 [LNIND 1967 SC 123] [LNIND
1967 SC 123] [LNIND 1967 SC 123], State of Assam v Bharat Kala Bhandar Ltd [1967] 3 SCR 490 [LNIND 1967 SC 123]
[LNIND 1967 SC 123] [LNIND 1967 SC 123], State of Assam v Bharat Kala Bhandar Ltd (1968) 1 LLJ 25 [LNIND 1967 SC 124]
[LNIND 1967 SC 124] [LNIND 1967 SC 124]; Government of Mysore v J V Bhat AIR 1975 SC 596 [LNIND 1974 SC 317]
[LNIND 1974 SC 317] [LNIND 1974 SC 317], Government of Mysore v J V Bhat (1975) 1 SCC 110 [LNIND 1974 SC 317]
[LNIND 1974 SC 317] [LNIND 1974 SC 317], Government of Mysore v J V Bhat [1975] 2 SCR 407 [LNIND 1974 SC 317]
[LNIND 1974 SC 317] [LNIND 1974 SC 317].

CONTROLS/[005.039] Previous publication
[005.039] Previous publication 'The power to make rules shall be subject to the condition of previous
publication'.
The effect of the term 'previous publication, according to the General Clauses Act 18971 is that:
(1) the rule-making authority shall publish a draft of the proposed rules for information of the
affected interests;
(2) the publication shall be made in such manner as the authority deems sufficient;
(3) there shall be published with the draft rules a notice specifying a date on or after which the
draft will be taken into consideration; and
(4) the authority shall take into consideration any objection or suggestion which may be received
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by it while finalising the rules.
The technique of 'previous publication' defers the effectuation of the rules for sometime, and gives an
opportunity to the interested parties to have their say in the matter2.
The condition of previous publication is to be found in a few Indian statutes only3. While statutory rules and
notifications vitally affecting private rights have been made without previous publicity, instances may be
found when the procedure has been used for matters of least importance4.
As a result of the several advantages flowing from consultation, as stated above, it is advisable to use the
procedure by way of previous publication as the general norm of rule-making as far as possible. This will
lead to making of better rules and enable the rule-making authority from falling into pitfalls arising out of
ignorance of the real situation for which the rules are being made.
There may, of course, be some cases where it may not be possible, owing to the urgency of the matter, or it
may not be in the public interest, to resort to this technique. To meet such cases, power may be given to the
rule-making authority to dispense with the requirement of pre-publication which power may be exercised
after giving reasons, or to have a shorter period for filling the representations. Consultation of interests
should, however, be the normal rule rather than the exception as at present5.
Under the General Clauses Act 1897 publication of the rules in the gazette is conclusive proof that the rules
have been duly made6. The implications of the 'conclusive evidence' clause are not very clear. The judicial
view seems to be that such a clause can immunise only minor deviations from the prescribed procedure but
no major or fundamental step in the prescribed procedure can be ignored. It is not clear what elements in the
procedure prescribed by way of previous publication are to be regarded as fundamental, and what elements
of this procedure can the rule-making authority ignore without risking the validity of the rules made.
The courts tend to regard the condition of pre-publication of draft rules prescribed in a statute as mandatory7.
However, if the requirement of pre-publication has been complied with substantially, there may be some
minor elements of the procedure prescribed in the statute which may be characterised as directory, and
minor deviations therefrom may not invalidate the rules made. Sometimes a statute may prescribe more than
one mode of pre-publication to ensure wide publicity. Depending upon the language used, some of these
modes may be held to be mandatory, while others only directory8.
Some statutes lay down a more elaborate consultative process for making rules than the concerned
requirement of previous publication9.
1 Ie the General Clauses Act 1897 s 23.
2 Indian Law Institute, 'Delegated Legislation in India' (1994) p 38.
3 For example, in the Income Tax Act 1922, there was the requirement of 'previous publication.' However, the same was
dropped for no apparent reason in its successor, the Income Tax Act 1961.
The present procedure of 'pre-publication' suffers from several defects and needs to be rationalised in several respects. For
example, there is no minimum time-lag prescribed between draft rules and their final making. If the rule-making agency is so
minded, it can make the procedure of consultation a sham by prescribing a brief interval between the crucial dates making it
extremely difficult for the interested parties to file their views on the draft rules. In many cases, the time allowed for filing views
is less than a week and sometimes the gazette containing the draft rules is available only after the date fixed for inviting
comments has expired.
The Karnataka High Court has ruled in Allisab Husensab Hulkoti v State of Karnataka AIR 1980 NOC 110 (Kant), that the
persons likely to be affected by the promulgation of the rules must have reasonable opportunity to go through the draft rules and
file their objections and suggestions. Where only four days were given for filing objections and suggestions, there was really a
denial of reasonable opportunity to persons likely to be affected thereby. 'The opportunity to be afforded should be adequate
and reasonable and should not be a sham, nominal or illusory.'
The efficacy of the procedure of 'previous publication' depends on whether the time allowed is sufficient to enable the interested
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persons to submit their considered views on the matter. It is, therefore, necessary to amend the law and prescribe a period of at
least 30 days for the persons to send their comments.
Another weakness of the procedure is the absence of any prescribed method of publication of the proposed rules. It depends on
the discretion of the rule-making authority for publication is to be in such manner as the rule-making authority deems to be
sufficient.
At times, there occur long delays (sometimes 2 to 4 years) between 'prepublication' and final publication of the rules. This
reduces the efficacy of the consultation procedure. It is suggested that the final publication of the rules should be within one
years of 'pre-publication'.
See, Comments of the Lok Sabha Committee on Subordinate Legislation 15th Report (V LS, 1975) p 6.
5 Ie The General Clauses Act 1897 s 23(5).
6 As to 'conclusive evidence' see [005.031]. See further [145]EVIDENCE.
Rajnarain Singh v Chairman, Patna Administration Committee, Patna AIR 1954 SC 569 [LNIND 1954 SC 102] [LNIND 1954
Patna (1954) SCJ 661 [LNIND 1954 SC 102] [LNIND 1954 SC 102] [LNIND 1954 SC 102]. See also Lachmi Narain v Union of
India AIR 1976 SC 714 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], Lachmi Narain v Union of India
(1976) 2 SCC 953 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465], Lachmi Narain v Union of India [1976] 2
SCR 785 [LNIND 1975 SC 465] [LNIND 1975 SC 465] [LNIND 1975 SC 465] (three months' notice to effect a modification in the
schedule annexed to the sales tax law was held to be mandatory).
In Raza Buland Sugar Co Ltd v Municipal Board, Rampur AIR 1965 SC 895 [LNIND 1964 SC 294] [LNIND 1964 SC 294]
[LNIND 1964 SC 294], Raza Buland Sugar Co Ltd v Municipal Board, Rampur [1965] 1 SCR 970 [LNIND 1964 SC 294] [LNIND
1964 SC 294] [LNIND 1964 SC 294], a statutory provision requiring a municipality to publish the draft rules imposing a tax to
consult the inhabitants of the area was held to be mandatory for the purpose of such publication obviously is to further the
democratic process and to provide a reasonable opportunity of being heard to those who are likely to be affected by the tax
before imposing it on them.
See also Vallabhdas v Municipal Committee, Akola AIR 1967 SC 133 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961
SC 35], Vallabhdas v Municipal Committee, Akola [1961] 3 SCR 618 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961
SC 35], Vallabhdas v Municipal Committee, Akola (1961) 2 SCJ 194 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961
SC 35]; Municipal Board, Sitapur v Prayag Narain Saigal AIR 1970 SC 58 [LNIND 1969 SC 12] [LNIND 1969 SC 12] [LNIND
1969 SC 12], Municipal Board, Sitapur v Prayag Narain Saigal (1969) 1 SCC 399 [LNIND 1969 SC 12] [LNIND 1969 SC 12]
[LNIND 1969 SC 12], Municipal Board, Sitapur v Prayag Narain Saigal [1969] 3 SCR 387 [LNIND 1969 SC 12] [LNIND 1969 SC
12] [LNIND 1969 SC 12]; State of Orissa v Sridhar Kumar Malik AIR 1985 SC 1411 [LNIND 1985 SC 234] [LNIND 1985 SC
234] [LNIND 1985 SC 234], State of Orissa v Sridhar Kumar Malik (1985) 3 SCC 697 [LNIND 1985 SC 234] [LNIND 1985 SC
234] [LNIND 1985 SC 234], State of Orissa v Sridhar Kumar Malik [1985] Supp 2 SCR 349; Syed Hasan Rasul Numa v Union
of India AIR 1991 SC 711 [LNIND 1990 SC 881] [LNIND 1990 SC 881] [LNIND 1990 SC 881], Syed Hasan Rasul Numa v
Union of India (1991) 1 SCC 401 [LNIND 1990 SC 881] [LNIND 1990 SC 881] [LNIND 1990 SC 881], Syed Hasan Rasul Numa
v Union of India [1990] Supp 3 SCR 165.
In Govind Lal Chaggan Lal Patel v Agricultural Produce Market Committee AIR 1976 SC 263 [LNIND 1975 SC 300] [LNIND
1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agricultural Produce Market Committee [1976] 1 SCR
451 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300], Govind Lal Chaggan Lal Patel v Agricultural Produce
Market Committee (1975) 2 SCC 482 [LNIND 1975 SC 300] [LNIND 1975 SC 300] [LNIND 1975 SC 300], a statutory provision
laying down the mode of pre-publication of the draft rule was held to be mandatory.
8 Bhausaheb Tavnappa Mahajan v State of Maharashtra AIR 1982 Bom 284 [LNIND 1981 BOM 184] [LNIND 1981 BOM 184]
[LNIND 1981 BOM 184], Bhausaheb Tavnappa Mahajan v State of Maharashtra (1981) 83 Bom LR 586 [LNIND 1981 BOM
184] [LNIND 1981 BOM 184] [LNIND 1981 BOM 184], Bhausaheb Tavnappa Mahajan v State of Maharashtra (1982) Mah LJ
229 [LNIND 1981 BOM 184] [LNIND 1981 BOM 184] [LNIND 1981 BOM 184].
For example, the Mines Act 1952 s 59 prescribes consultation with the mining boards. The procedure laid down for the purpose
is as follows: Draft regulations are first referred to every mining board concerned with the subject dealt with by the regulations
and its opinion is sought about the expediency of making the same and suitability or their provision. The draft regulations are
then subject to the procedure by way of 'previous publication'. It is further laid down that the minimum time-lag between the date
of publishing the draft regulations and the date when the same are to be taken into consideration for finalisation is to be three
months. In this way, an effective participation of the interests affected by the proposed rules is secured in the rule-making
process.
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See also Banwari Lal Agarwalla v State of Bihar AIR 1961 SC 849 [LNIND 1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC
56], Banwari Lal Agarwalla v State of Bihar [1962] 1 SCR 33 [LNIND 1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56],
Banwari Lal Agarwalla v State of Bihar (1962) 2 SCJ 27 [LNIND 1961 SC 56] [LNIND 1961 SC 56] [LNIND 1961 SC 56] (the
procedure laid down in the Mines Act 1952 s 59 has been held to be mandatory, regulations made in contravention of this
stipulation would not be valid).

ADMINISTRATIVE LAW/5. SUB-DELEGATION OF LEGISLATIVE POWERS/[005.040] Introduction
[005.040] Introduction Besides delegation, sub-delegation of legislative power is also used extensively as
an administrative technique in modern times. The statute confers legislative power on an agency (example
A), and agency A may further delegate that power either to itself, or its officers, or some other person or
agency (example B). Delegation of legislative power by A to B is known as sub-delegation. There are thus
times when the process of sub-delegation from one level to another gets four or five 'degrees' removed from
the parent Act1.
Sub-delegation at several stages removed from the source dilutes accountability of the administrative
authority and weakens the safeguards granted by the Act. It becomes difficult for the people to know whether
the officer is acting within his prescribed sphere of authority. It is, therefore, necessary to limit the degrees to
which sub-delegation of legislature power may proceed.
A basic principle which applies in this area is that the legislative power must be exercised by the delegate to
whom the legislature has delegated legislative power, and he cannot further sub-delegate this power to any
one else unless the parent law permits him to do so. The doctrine applied here is delegatus non potest
delegare, that is, a delegate cannot further delegate. Thus, if a law confers powers on the Central
Government to make rules, it cannot further delegate that power to any other officer, unless the parent law
itself gives authority to the government to that effect2. Sub-delegation of power of delegated legislation is
justified only where the parent statute expressly or impliedly authorises the delegate himself to further
sub-delegate that power to someone else3.
In the absence of an express provision, the question whether a statute authorises sub-delegation or not is
one for judicial interpretation4.
The process of sub-delegation raises several problems. The first is whether it is necessary for the delegate
to lay down lines of guidance for the sub-delegate to follow, or can there be a plain and simple
sub-delegation without laying down any policy-guidance for the sub-delegate to observe? The matter has
arisen before the Indian courts on a few occasions. And it has been held that the sub-delegate ought not to
be given an uncanalised and unbridled legislative power.
The difficulty arises in applying this principle to specific factual situations, and in this regard the judicial
attitude remains equivocal5.
It is a well established principle that the sub-delegate cannot act beyond the scope of the power
sub-delegated to him6. This is the principle of ultra vires7. To operationalise this principle, it is necessary that
subdelegation should not be made vaguely8, or that it should not be made when the parent statute is silent
on the point9. It is also necessary that there should be some safeguards imposed before a delegate is
allowed to sub-delegate its authority to another functionary.
The process may be illustrated by reference to the practices which have emerged under the Essential Commodities Act 1955.
The Essential Commodities Act 1955 s 3 confers rule-making power on the Central Government. This may be regarded as the
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first stage of delegation. Under Essential Commodities Act 1955 s 5, the Central Government is empowered to delegate powers
to its officers, the state governments and their officers. This provision is frequently made use of and delegation under it may be
characterised as the second stage of delegation. The third stage is reached when the power is further sub-delegated by the
state government, or, the official concerned.
For example, the Cotton Control Order 1955, is made by the Central Government under the Essential Commodities Act 1955 s
3(10). The order confers functions and powers on the Textile Commissioner. This is the second stage in the process of
delegation. Then the Textile Commissioner is authorised, with the previous sanction of the government, by general or special
written order, to authorise any officer to exercise on his behalf all or any of his functions and powers under the order, and this
constitutes the third stage of sub-delegation.
2 State of Punjab v Amir Chand AIR 1953 Punj 1; Pritam Bus Ltd v State of Punjab AIR 1957 Punj 145, Pritam Bus Ltd v State
of Punjab 59 Punj LR 100.
4 See Alapati Seshadri Rao & Co v Agricultural Market Committee, Guntur AIR 1977 AP 322 [LNIND 1976 AP 29] [LNIND
1976 AP 29] [LNIND 1976 AP 29], Alapati Seshadri Rao & Co v Agricultural Market Committee, Guntur (1976) ILR AP 446. The
High Court has ruled in the instant case that even when a statute does not contain any express provision authorising delegation
of legislative power, such a power can be spelt out by necessary implication from the provision of the statute. In the instant
case, the court spelt out such a power from the statutory provision involved, Andhra Pradesh Markets Act 1966 s 57(3).
Under the Essential Supplies Act 1946 s 3, the Government of India promulgated the Iron and Steel Order 1941. The Iron and
Steel Order 1941cl 11B authorised the Iron and Steel Controller to fix the maximum prices at which any iron might be sold by a
producer, stockholder or any other person, and different prices could be fixed for steel obtained from different sources.
The Madhya Pradesh High Court declared in State of Madhya Pradesh v Haiderali AIR 1957 MP 179 [LNIND 1957 MP 9]
[LNIND 1957 MP 9] [LNIND 1957 MP 9]that the Iron and Steel Order 1941cl 11-B was invalid because it conferred a 'naked and
arbitrary' power on the Controller to control prices.
On the other hand, the Allahabad High Court ruled otherwise: see Bhagwati Saran v State of Uttar Pradesh AIR 1959 All 332
[LNIND 1958 ALL 189] [LNIND 1958 ALL 189] [LNIND 1958 ALL 189], Bhagwati Saran v State of Uttar Pradesh (1959) All LJ
10, Bhagwati Saran v State of Uttar Pradesh (1959) Cr LJ 663.
The Supreme Court, however, held the clause valid on the ground that under the Essential Supplies Act 1946 s 3, the Central
Government could have itself prescribed a price structure for iron and steel. Instead of doing it itself, the government authorised
the controller to do so. The control order, taken as a whole, gave him the necessary guidance to exercise his power; it
constituted an integrated scheme to enable the controller to effectuate the policy of Act, and the authority conferred on the
controller was not 'uncanalised or unbridled'. See Union of India v Bhanamal Gulzarimal AIR 1960 SC 475 [LNIND 1959 SC
228] [LNIND 1959 SC 228] [LNIND 1959 SC 228], Union of India v Bhanamal Gulzarimal [1960] 2 SCR 627 [LNIND 1959 SC
228] [LNIND 1959 SC 228] [LNIND 1959 SC 228], Union of India v Bhanamal Gulzarimal (1960) SCJ 584 [LNIND 1959 SC 228]
[LNIND 1959 SC 228] [LNIND 1959 SC 228]; The ruling was reiterated by the Supreme Court in Bhagavati Saran v Uttar
Pradesh AIR 1961 SC 928 [LNIND 1961 SC 24] [LNIND 1961 SC 24] [LNIND 1961 SC 24], Bhagavati Saran v Uttar Pradesh
[1961] 3 SCR 563 [LNIND 1961 SC 24] [LNIND 1961 SC 24] [LNIND 1961 SC 24], Bhagavati Saran v Uttar Pradesh (1961) 2
SCJ 217.
The Supreme Court adopted a similar approach in Laxmi Khandsari v State of Uttar Pradesh AIR 1981 SC 873 [LNIND 1981
SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140], Laxmi Khandsari v State of Uttar Pradesh (1981) 2 SCC 600 [LNIND
1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140], Laxmi Khandsari v State of Uttar Pradesh [1981] 3 SCR 92 [LNIND
1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC 140] : An order was made under the power delegated by Sugarcane
(Control) Order 1966 cl 8 passed under the Essential Commodities Act 1955 s 3. Sugarcane Order 1966cl 8 conferred on the
Central Government to make orders, issue directions to various persons connected with the production of khandsari sugar or
crushers of sugarcane. Power under the order were delegated to the cane commissioner who made the impugned order.
Clause 8 was challenged as invalid on the ground that it gave no guidance to the delegate. Rejecting the argument, the court
observed that the Sugarcane Control Order contains sufficient guidelines, checks and balances to prevent any misuse or abuse
of the power conferred on the authorities. Also, the power could not be deemed to be arbitrary or unguided because the
impugned notification derives its source from the Essential Commodities Act 1955 s 3 which clearly lays down sufficient
guidelines.
6 Blackpool Corporation v Locker (1948) 1 KB 349; Allingham v Minister of Agriculture and Fisheries (1948) 1 All ER 780;
Radhakisan Laxminarayan v The State AIR 1952 Nag 387.
7 The Supreme Court has stated the principle as follows: 'A delegate is not entitled to exercise powers in excess in
contravention of the delegated powers. If any order is issued or framed in excess of the powers delegated to the authorities,
such order would be illegal and void': see District Collector, Chittoor v Chittoor District Groundnut Traders' Association AIR
1989 SC 989 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690], District Collector, Chittoor v Chittoor District
Groundnut Traders' Association (1989) 2 SCC 60, District Collector, Chittoor v Chittoor District Groundnut Traders' Association
72 72
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8 Coal Mines (Conservation and Safety) Act 1952 s 5(2)authorised the government to delegate any of its powers to the Coal
Mines Board by a special or general order. By making a rule, the government left the power of laying down 'principles' for
acquisition or disposal of lands and surface rights to the coal board. An objection was raised that the 'principles' should be laid
down by the government and not by a subordinate authority. As a consequence, the government amended the rule.
The Central Silk Board Rules 1955 sub-delegated rule-making power to the Silk Board when the parent Act specifically
authorised the Central Government to make the rules. On an objection being taken by the committee on subordinate legislation
to the sub-delegation, the government agreed to amend the rules.
Again, Carbide Calcium Rules 1937 s 13, made under the Petroleum Act 1934, delegated rule-making power to subordinate
authorities though such delegation was not authorised by the parent Act. On an objection being taken to it, the government
agreed to delete the rule.

ADMINISTRATIVE LAW/5. SUB-DELEGATION OF LEGISLATIVE POWERS/[005.041] Publication
[005.041] Publication As to the publication of sub-delegated legislation, it may be agreed that, on the basis
of the general principles laid down in the Harla case1, sub-delegated legislation should also receive some
publicity so that those affected thereby may acquire knowledge of the rules which bind them and arrange
their affairs accordingly.
At times, the parent statute may contain a stipulation that all orders made under the Act should be published
in the official gazette. A question may then arise whether this stipulation applies to the rules made
immediately under the Act, that is, delegated legislation, or even to the orders made under the rules, that is,
to the sub-delegated legislation as well.
The point may now be regarded to have been settled by the Supreme Court that even sub-delegated
legislation ought to be published in the gazette2.
The significant point to note is that, even though the parent Act may not specifically require publication of the
sub-delegated legislation, nevertheless, it would be imperative to publish it for its effectiveness and validity.
Rules made under a statute often confer further powers on administrative officers to issue directives, non
compliance of which by persons is penal, but no procedure is laid down in the rules for publication of such
directives. It is therefore necessary that the rules should specifically lay down a procedure for bringing such
directives to the notice of the persons concerned. It is necessary that all statutory orders, regulations or
principles issued under the rules should be published in the same manner as the rules under the parent Act.
Similarly, when there is a requirement to 'pre-publish', the sub-delegated legislation, the procedure should be
followed similar to that followed in the case of delegated legislation3.
At times, one finds a provision authorising the making of sub-delegated legislation but not prescribing any
specific mode of its publication. It may merely say that the authority concerned shall publish the same 'in
such manner as may, in the opinion of such authority be best adopted for informing persons whom the order
concerns...'
Explaining the purport of this provision, the High Court has stated that publication is a condition precedent for
the enforceability of sub-delegated legislation. The provision in question signifies--
(1) that the authority concerned has to bring its mind to bear on the question of the best means of
publication and prescribe a mode of publication, and
(2) the sub-delegated legislation must have been published accordingly.
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Mere making of sub-delegated legislation is not enough, its publication is essential. The mode of its
publication is to be prescribed by the concerned authority and its publication in any other mode is not
sufficient4.
1 Harla v State of Rajasthan AIR 1951 SC 467 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49], Harla v State of
Rajasthan [1952] SCR 110 [LNIND 1951 SC 49] [LNIND 1951 SC 49] [LNIND 1951 SC 49], Harla v State of Rajasthan (1952)
Cr JT 54.
Narendra Kumar v Union of India AIR 1960 SC 430 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217],
Narendra Kumar v Union of India [1960] 2 SCR 375 [LNIND 1959 SC 217] [LNIND 1959 SC 217] [LNIND 1959 SC 217],
Narendra Kumar v Union of India (1960) SCJ 214: Under Essential Commodities Act 1955 s 3(5), all orders of general nature
made under the Essential Commodities Act 1955 s 3(1) are to be notified in the official gazette. The Non-Ferrous Metals Control
Order 1958, issued under the Essential Commodities Act 1955, prohibited through cl 4 acquisition of copper without a permit
issued by the controller in accordance with the principles 'specified' by the Central Government from time to time.
The principles for the issue of permits, which may be regarded as subdelegated legislation, were specified by the government in
a communication to the controller but these had not been notified in the gazette. The Supreme Court held in the instant case
that the principles were not legally effective as they were not validly specified due to their non-publication in the gazette. The
court insisted that the principles should have been notified in the gazette.
The question of publication in the gazette of sub-delegated legislation also figured in State of Maharashtra v Mayer Hans
George AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415], State of Maharashtra v Mayer
Hans George [1965] 1 SCR 123 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964 SC 415], State of Maharashtra v
Mayer Hans George (1965) 1 Cr LJ 641. The Act in question stipulated publication of the rules made under the Act in the official
gazette but did not say anything about the publication of sub-delegated legislation issued by an authority under the rules. A
notification made by Reserve Bank under the rules was published in the official gazette. The Supreme Court held that the
publication of the notification in the gazette, the usual and recognisable way of publication in India, was adequate for its validity.
The point to note is that even though the parent Act may not specifically stipulate publication of the sub-delegated legislation,
nevertheless, it would be imperative to publish it for its effectiveness and validity.
See also Jackson Stansfield & Sons v Butterworth [1948] 2 All ER 558 per Scott LJ.
3 See [005.039].
4 Babulal Rajoolal Jain v Emperor AIR 1945 Nag 218. In India, the obligation to publish sub-delegated legislation has been
established by the courts as mentioned above. However may not be out of place to mention here that in Britain there exists no
obligation, statutory or common law, on the administration to publish sub-delegated legislation as the Statutory Instruments Act
1946, stipulates printing of delegated, but not of sub-delegated, legislation. This is a big lacuna in Britain.

ADMINISTRATIVE LAW/5. SUB-DELEGATION OF LEGISLATIVE POWERS/[005.042] Laying
[005.042] Laying Another problem in the area of sub-delegated legislation concerns its laying before the
Legislature. When the parent statute says that the orders made under it shall be laid before the Houses of
Parliament, the question is does this provision only refer to the rules made immediately under the Act, or it
also refers to the sub-delegated legislation made under the rules.
If it is held that the statutory provision requires the laying of only the rules, then the sub-rules would not be
required to be laid and these may thus escape parliamentary scrutiny or control. If the view is taken that the
statutory provision regarding laying covers both the rules and the sub-rules, then parliamentary scrutiny of all
delegated and sub-delegated legislation is provided, but such a view may cause inconvenience and difficulty
to the administration in view of the large bulk of sub-delegated legislation. For the present sub-delegated
legislation is not laid1.
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1 As to laying procedure under delegated legislation see [005.034].

ADMINISTRATIVE LAW/6. DIRECTIONS/(1) INTRODUCTION/[005.043] Nature
[005.043] Nature Administrative authorities issue directions or instructions through letters, circulars, orders,
memoranda, pamphlets, public notices and press notes. Directions may even be published in the
government gazette. Directions are designated as 'administrative quasilaw' or 'administrative
quasi-legislation'1 for the reason that these directions, though issued under the administrative powers of the
government, may be legislative in effect.
Directions may be general or specific. A specific direction is applicable to a particular purpose or a particular
case. A general direction is one which lays down principles, policies, practices or procedures applicable to
general public. Directions are issued under the general administrative powers of the government2.
Generally, a direction is not binding or enforceable through a court of law. Barring certain exceptions, a
direction does not confer any enforceable right on an individual, or impose an obligation upon the
administration or the individual3.
1 Allen, 'Law and Orders ', (1965) p 192; Benjafield and Whitemore, 'Principlesof Administrative Law' (1971) p 116; Megarry,
'Administrative Quasi-Legislation', (1944) 60 LQR 125.
2 Ie powers conferred by the Constitution of India arts 73 and 162: see generally[80]CONSTITUTIONAL LAW.
3 As to enforceability of directions see [005.047].

ADMINISTRATIVE LAW/6. DIRECTIONS/(1) INTRODUCTION/[005.044] Necessity
[005.044] Necessity In general, directions are required to inform people of the policy decisions taken by the
government from time to time in various areas.
Directions are an endemic part of the internal administrative procedure of a government department. They
are used extensively to lay down procedural norms for various purposes to be followed by administrative
authorities or the public. Directions are also used to fill in the gaps in the area of wide discretionary powers
conferred upon the administration1. Further, directions may be used when the factors for the operation of the
administration are fluid and subject to rapid changes2.
Where the government needs to formulate general norms in its administrative area, it will issue directions, as
it cannot make rules in the absence of any statutory legislative powers. Directions may, however, be issued
even when the concerned authority has no statutory power to do so3. Thus, directions are used for regulatory
purposes in those areas where the administration needs flexibility of approach, for instance, in service
matters4.
Where a number of officials are engaged in executing a law and taking decisions thereunder, directions may
serve the purpose of laying down some criteria to be followed to ensure uniformity of approach in disposing
of similar cases5.
Where a department is faced with a problem for which no past experience is available, the government may
lay down, through directions, some norms, general principles, practices and policies within the area of its
75 75
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operation under a statute for guidance of the officials and convenience of the public, until some stable norms
are evolved which may be capable of being laid down in the form of rules6.
1 As to discretionary powers conferred upon the administration see [005.182] and following.
In granting import licences, several factors have to be constantly kept in view, eg,, foreign exchange situation, priority of the
concerned industry in the context of national economy, needs of different units in the industry and so on. These factors vary
constantly, and therefore, it may be difficult to lay down stable norms for issuing such licences.
Further, numerous licensing authorities deal with applications for such licences and some uniformity in decisions by them may
be achieved by taking recourse to directions.
3 See [005.043] text to note 2.
Following are instances of situations in which the administration may prefer to use directions rather than rules:
(1) a principle may not lend itself to precise articulation;

(2) the agency may prefer to retain some freedom to modify its views without undergoing much formality; or
(3) a department may confer a benefit on the public without making it a legal right, or the benefit conferred may
be over and above what the statute provides.
5 As to rule against bias see [005.073] and following.
6 'Direct Taxes Administration Inquiry Committee Report' (1958-1959)pp 38-42 (The Finance Act 1955, for the first time, made a
provision for development rebate allowing additional depreciation on new plants. The various problems in implementing this
provision could not be visualized in the beginning and attempts were made to solve them through issue of circulars from time to
time).

ADMINISTRATIVE LAW/6. DIRECTIONS/(2) IDENTIFICATION/[005.045] Identification
[005.045] Identification Government legislation may be classified as either delegated legislation1 or

directions2. However, at times, one and the same government pronouncement may partly constitute
directions and partly delegated legislation3.
Generally, a rule is made by the administration in pursuance of the rule-making power conferred upon it by a
statutory provision or a constitutional provision4. Directions, on the other hand, are usually issued by the
administration in the exercise of its general administrative powers5.
Even when the government has legislative power to makes rules on a subject matter, it may still prefer to
issue directions under its administrative power6.
Where the source of the norm or government pronouncement is not indicated, its identification becomes
difficult, as there are no definitive tests to identify its nature7.
The factors which may be determinative of the nature of a pronouncement are:
(1) compliance with the procedural formalities prescribed for the making of delegated legislation in
the parent statute;
(2) source of the power;
(3) form in which the pronouncement has been made; and
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(4) contents of the pronouncement.
A statute may confer a general power to make orders which may authorise the making of both, administrative
as well as legislative orders8.
Some statutes may specifically confer power upon the administration to issue directions9. Moreover, a
statute may have two provisions, one to enable the administration to make rules and another authorising it to
issue directions10.
Where rules made under statutory power cannot be given effect to due to some lacuna in the rule-making
process, the same may be treated as directions11.
Rules, regulations or bye-laws made by a private association, or any other body incorporated or registered
under a statute, will not have the force of law12. However, rules, bye-laws, regulations made by a statutory
body under statutory power conferred upon it for the purpose will have legal force13.
1 As to delegated legislation see [005.009] and following.
2 As to directions see [005.043] and following.
An office memorandum fixing the age of retirement of civil servants was held to be a direction ( IN Saxena v State of Madhya
Pradesh AIR 1967 SC 1264 [LNIND 1967 SC 22] [LNIND 1967 SC 22] [LNIND 1967 SC 22], IN Saxena v State of Madhya
Pradesh [1967] 2 SCR 496 [LNIND 1967 SC 22] [LNIND 1967 SC 22] [LNIND 1967 SC 22], IN Saxena v State of Madhya
Pradesh (1967) 2 LLJ 427 [LNIND 1967 SC 22] [LNIND 1967 SC 22] [LNIND 1967 SC 22]; State of Assam v Basanta Kumar
Das AIR 1973 SC 1252 [LNIND 1972 SC 593] [LNIND 1972 SC 593] [LNIND 1972 SC 593], State of Assam v Basanta Kumar
Das (1973) 1 SCC 461 [LNIND 1972 SC 593] [LNIND 1972 SC 593] [LNIND 1972 SC 593], State of Assam v Basanta Kumar
Das [1973] 3 SCR 158) [LNIND 1972 SC 593] [LNIND 1972 SC 593] [LNIND 1972 SC 593]. However, a memorandum on the
same subject matter issued by the Central Government was held to be a rule ( E Venkateswararao Naidu v Union of India AIR
1973 SC 698 [LNIND 1973 SC 2] [LNIND 1973 SC 2] [LNIND 1973 SC 2], E Venkateswararao Naidu v Union of India (1973) 1
SCC 361 [LNIND 1973 SC 2] [LNIND 1973 SC 2] [LNIND 1973 SC 2], E Venkateswararao Naidu v Union of India [1973] 3 SCR
216) [LNIND 1973 SC 2] [LNIND 1973 SC 2] [LNIND 1973 SC 2].
The Railway Establishment Code and a portion of the Uttar Pradesh Police Regulations dealing with police disciplinary matters
have been held to be rules: Divisional Personnel Officer, Southern Railway, Mysore v S Raghavendrachar AIR 1966 SC 1529
[LNIND 1965 SC 387] [LNIND 1965 SC 387] [LNIND 1965 SC 387], Divisional Personnel Officer, Southern Railway, Mysore v S
Raghavendrachar [1966] 3 SCR 106 [LNIND 1965 SC 387] [LNIND 1965 SC 387] [LNIND 1965 SC 387], Divisional Personnel
Officer, Southern Railway, Mysore v S Raghavendrachar (1967) 1 LLJ 401; State of Uttar Pradesh v Babu Ram Upadhya AIR
1961 SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292], State of Uttar Pradesh v Babu Ram Upadhya
[1961] 2 SCR 679 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292], State of Uttar Pradesh v Babu Ram
Upadhya (1961) 1 Cr LJ 773.
See Govind v State of Madhya Pradesh AIR 1975 SC 1378 [LNIND 1975 SC 124] [LNIND 1975 SC 124] [LNIND 1975 SC
124], Govind v State of Madhya Pradesh (1975) 2 SCC 148 [LNIND 1975 SC 124] [LNIND 1975 SC 124] [LNIND 1975 SC 124],
Govind v State of Madhya Pradesh [1975] 3 SCR 946 [LNIND 1975 SC 124] [LNIND 1975 SC 124] [LNIND 1975 SC 124];
Niranjan Singh v State of Uttar Pradesh AIR 1957 SC 142 [LNIND 1956 SC 73] [LNIND 1956 SC 73] [LNIND 1956 SC 73],
Niranjan Singh v State of Uttar Pradesh [1956] SCR 734 [LNIND 1956 SC 73] [LNIND 1956 SC 73] [LNIND 1956 SC 73],
Niranjan Singh v State of Uttar Pradesh (1957) SCJ 69 [LNIND 1956 SC 73] [LNIND 1956 SC 73] [LNIND 1956 SC 73]; State
of Uttar Pradesh v Babu Ram Upadhya AIR 1961 SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292],
State of Uttar Pradesh v Babu Ram Upadhya [1961] 2 SCR 679 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC
292], State of Uttar Pradesh v Babu Ram Upadhya (1961) 1 Cr LJ 773; Kharak Singh v State of Uttar Pradesh AIR 1963 SC
1295 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436], Kharak Singh v State of Uttar Pradesh [1964] 1 SCR
332 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436], Kharak Singh v State of Uttar Pradesh (1964) 2 SCJ
107.
4 As to the rule making powers of the administration see [005.009] and following.
Ie the powers conferred under the Constitution of India arts 73 and 162. These constitutional provisions do not confer any
legislative powers because such powers are conferred only by the legislature by passing a statute ( B N Nagarajan v State of
Mysore AIR 1966 SC 1942 [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67], B N Nagarajan v State of Mysore
[1966] 3 SCR 682 [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67], B N Nagarajan v State of Mysore (1967) 1
77 77
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LLJ 698) [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67]. Therefore, pronouncements made under the
abovementioned constitutional provisions may not be regarded as rules ( G J Fernandez v State of Mysore AIR 1967 SC 1753
[LNIND 1967 SC 139] [LNIND 1967 SC 139] [LNIND 1967 SC 139], G J Fernandez v State of Mysore [1967] 3 SCR 636)
Sadhu Singh v State of Punjab AIR 1984 SC 739 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24], Sadhu Singh
v State of Punjab (1984) 2 SCC 310 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24], Sadhu Singh v State of
Punjab [1984] 2 SCR 741 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24] (Punjab Jail Manual para 516-B was
held to be a direction and not a rule); State of Madhya Pradesh v Nivedita Jain AIR 1981 SC 2045 [LNIND 1981 SC 395]
[LNIND 1981 SC 395] [LNIND 1981 SC 395], State of Madhya Pradesh v Nivedita Jain (1981) 4 SCC 296 [LNIND 1981 SC 395]
[LNIND 1981 SC 395] [LNIND 1981 SC 395], State of Madhya Pradesh v Nivedita Jain [1982] 1 SCR 759 [LNIND 1981 SC 395]
[LNIND 1981 SC 395] [LNIND 1981 SC 395] (as there was no law or rule covering the field of candidates for admission to
medical colleges, and as the matter fell within its administrative power, the state would be competent to pass executive orders
in this regard. See Aarti Gupta v State of Punjab AIR 1988 SC 481 [LNIND 1987 SC 832] [LNIND 1987 SC 832] [LNIND 1987
SC 832], Aarti Gupta v State of Punjab (1988) 1 SCC 258 [LNIND 1987 SC 832] [LNIND 1987 SC 832] [LNIND 1987 SC 832],
Aarti Gupta v State of Punjab [1988] 2 SCR 244. See also [005.043] text to note 2.
6 Surinder Singh v Central Government AIR 1986 SC 2167, Surinder Singh v Central Government (1986) 4 SCC 667 [LNIND
1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352], Surinder Singh v Central Government [1986] 3 SCR 946 [LNIND
1986 SC 352] [LNIND 1986 SC 352] [LNIND 1986 SC 352] (rejecting the argument that the government could not auction
property till the rules were made under the relevant statute, it was held that the government had ample powers to dispose of
pool property by an auction sale and, for that purpose, had authority to issue administrative directions).
The following inter alia have been held to be directions, and not delegated legislation:
(1) The Madhya Pradesh Pre-Medical Examination Rules 1972 ( SP Minocha v State of Madhya Pradesh AIR
1973 MP 84 [LNIND 1972 MP 47] [LNIND 1972 MP 47] [LNIND 1972 MP 47], SP Minocha v State of Madhya
Pradesh (1973) LLJ 318, SP Minocha v State of Madhya Pradesh (1973) MP LJ 344);
(2) The Karnataka Medical Colleges (Selection for Admission) Rules 1978 (A Prabhakar Reddy v State of
Karnataka AIR 1980 Kant 207, Prabhakar Reddy v State of Karnataka (1980) 1 Kant LJ 450);
(3) Assessment and Collection Manual 1917 of the Calcutta Corporation ( Karnani Properties Ltd v Corporation of
Calcutta AIR 1973 Cal 488 [LNIND 1973 CAL 117] [LNIND 1973 CAL 117] [LNIND 1973 CAL 117], Karnani
Properties Ltd v Corporation of Calcutta (1973) Tax LR 2612);
(4) Orissa Forest Code ( Santosh Kumar Agarwalla v State of Orissa AIR 1973 Ori 217, Santosh Kumar Agarwalla
v State of Orissa (1973) ILR Cut 243);
(5) Store Purchase Manual of the Kerala Government ( General Electrical & Engg Co, Trichur v Chief Engineer
AIR 1974 Ker 23 [LNIND 1972 KER 103] [LNIND 1972 KER 103] [LNIND 1972 KER 103], General Electrical &
Engg Co, Trichur v Chief Engineer (1973) Ker LT 321);
(6) West Bengal Government Estates Manual ( Lalgola Padma Fishermen's Co-op Society v State of West
Bengal AIR 1974 Cal 217 [LNIND 1973 CAL 197] [LNIND 1973 CAL 197] [LNIND 1973 CAL 197], Lalgola
Padma Fishermen's Co-op Society v State of West Bengal 78 Cal WN 386);
(7) Orissa Police Manual ( Ajay Kumar Bhuyan v State of Orissa (2003) 1 SCC 707 [LNIND 2002 SC 764] [LNIND
2002 SC 764] [LNIND 2002 SC 764]).
See VT Khanzode v Reserve Bank of India AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64], VT
Khanzode v Reserve Bank of India (1982) 2 SCC 243, VT Khanzode v Reserve Bank of India [1982] 3 SCR 411 [LNIND 1982 SC 64]
[LNIND 1982 SC 64] [LNIND 1982 SC 64] (one of the reasons to hold the regulations in question as directions was that, while issuing
the regulations, the source of power under which they were made was not mentioned); Accountant General v S Doraiswamy AIR 1981
SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452], Accountant General v S Doraiswamy (1981) 4 SCC 93
[LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452], Accountant General v S Doraiswamy [1981] 2 SCR 155 [LNIND
1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452] (giving weightage to the length of service in fixing seniority which was
contained in the manual of standing orders is an administrative instruction having no statutory force); Regina v St Aloysins Higher
Elementary School AIR 1971 SC 1920 [LNIND 1971 SC 178] [LNIND 1971 SC 178] [LNIND 1971 SC 178], Regina v St Aloysins Higher
Elementary School (1972) 4 SCC 188 [LNIND 1971 SC 178] [LNIND 1971 SC 178] [LNIND 1971 SC 178], Regina v St Aloysins Higher
Elementary School [1971] Supp SCR 6 (the 'rules' were issued under the general administrative powers and so characterised as
directions).
See also State of Maharashtra v Lok Shikstan Sanstha AIR 1973 SC 588 [LNIND 1971 SC 320] [LNIND 1971 SC 320] [LNIND 1971 SC
320], State of Maharashtra v Lok Shikstan Sanstha (1971) 2 SCC 410 [LNIND 1971 SC 320] [LNIND 1971 SC 320] [LNIND 1971 SC
320], State of Maharashtra v Lok Shikstan Sanstha [1971] Supp SCR 879; State of Assam v Ajit Kumar Sarma AIR 1965 SC 1196
[LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit Kumar Sarma [1965] 1 SCR 890 [LNIND 1964
SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit Kumar Sarma (1966) 1 LLJ 451.
See however Virendra Kumar v Union of India AIR 1981 SC 947, Virendra Kumar v Union of India (1981) 1 SCC 485, Virendra Kumar v
Union of India (1981) Lab IC 433 (an army instruction regarding release of commissioned officers has statutory force).
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For instance, the Imports and Exports (Control) Act 1947 s 3(1) prima facie authorises the making of rules as well as issue of
administrative orders. The Imports (Control) Order 1955 issued under the Imports and Exports (Control) Act 1947 has been held
to be legislative in character, ie, amounting to delegated legislation.
The import policy published from time to time is only a guidance given to the concerned administrative officers and the
principles contained therein have no statutory force whatsoever: Union of India v Anglo Afghan Agencies AIR 1968 SC 718
[LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334], Union of India v Anglo Afghan Agencies [1968] 2 SCR 366
[LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC 334], Union of India v Anglo Afghan Agencies (1968) 1 SCWR
553 (merely because the scheme was of a general nature, was published in the gazette, and was issued under the Imports and
Exports (Control) Act 1947 s 3, it could not be assumed that it would be of statutory character. Both 'legislative' and 'executive'
(or administrative) orders could be issued, and the import trade control policy containing the scheme contained only 'executive
or administrative instructions' and was not legislative in character).
East India Commercial Co Ltd, Calcutta v Collector of Customs, Calcutta AIR 1962 SC 1893 [LNIND 1962 SC 228] [LNIND
1962 SC 228] [LNIND 1962 SC 228], East India Commercial Co Ltd, Calcutta v Collector of Customs, Calcutta [1963] 3 SCR
338 [LNIND 1962 SC 228] [LNIND 1962 SC 228] [LNIND 1962 SC 228] (a public notice laying down the principles governing
the issue of import licences which was published in the official gazette was held to be non-statutory in nature for the following
reasons: (1) the public notice showed that it was intended to give information to the public as regards the procedure to be
followed in the matter of filing of applications by different categories of applicants; (2) the public notice in question did not state
that it was issued under the Imports and Exports (Control) Act 1947 s 3; (3) the present communication was described as a
'public notice' and not an order; (4) the public notice in question did not regulate the right of the parties but only gave information
to the public regarding the principles governing the issue of licences.
See also Andhra Industrial Works v Chief Controller of Imports AIR 1974 SC 1539 [LNIND 1974 SC 169] [LNIND 1974 SC 169]
[LNIND 1974 SC 169], Andhra Industrial Works v Chief Controller of Imports (1974) 2 SCC 348 [LNIND 1974 SC 169] [LNIND
1974 SC 169] [LNIND 1974 SC 169], Andhra Industrial Works v Chief Controller of Imports [1975] 1 SCR 321 [LNIND 1974 SC
169] [LNIND 1974 SC 169] [LNIND 1974 SC 169]; Deputy Assistant Iron and Steel Controller, Madras v L Manikchand
Proprietor, Katralla Metal Corporation, Madras AIR 1972 SC 935 [LNIND 1972 SC 624] [LNIND 1972 SC 624] [LNIND 1972 SC
624], Deputy Assistant Iron and Steel Controller, Madras v L Manikchand Proprietor, Katralla Metal Corporation, Madras (1972)
3 SCC, Deputy Assistant Iron and Steel Controller, Madras v L Manikchand Proprietor, Katralla Metal Corporation, Madras
9 For instance, the Central Board of Direct Taxes has power to issue directions under the Income Tax Acts 119(1).
10
Jayantilal Amratlal Shodhan v FN Rana AIR 1964 SC 648 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963 SC 246],
Jayantilal Amratlal Shodhan v FN Rana [1964] 5 SCR 294 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963 SC 246]
(if the order is purely administrative or is not issued in exercise of any statutory authority it may not have force of law. However,
where a general order is issued, even by an executive authority which confers power exercisable under a statute, such
conferment of powers must be regarded as having the force of law).
All Party Hill Leaders' Conference, Shillong v WA Sangama AIR 1977 SC 2155 [LNIND 1977 SC 264] [LNIND 1977 SC 264]
[LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA Sangama (1977) 4 SCC 161 [LNIND 1977 SC 264]
[LNIND 1977 SC 264] [LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA Sangama [1978] 1 SCR 393
[LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264] (The Court did not give a definitive answer to the question
whether the order in question is to be treated as a rule or a direction).
AC Jose v Sivan Pillai AIR 1984 SC 921 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66], AC Jose v Sivan Pillai
(1984) 2 SCC 656 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66], AC Jose v Sivan Pillai [1978] 1 SCR 393
[LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264](the Constitution of India art 324 confers only administrative
power upon the Election Commission as the power of the Commission is meant to supplement, and not to supplant, the law).
Rooplal Sathi v Nachhattar Singh AIR 1982 SC 1559 [LNIND 1982 SC 155] [LNIND 1982 SC 155] [LNIND 1982 SC 155],
Rooplal Sathi v Nachhattar Singh (1982) 3 SCC 487 [LNIND 1982 SC 155] [LNIND 1982 SC 155] [LNIND 1982 SC 155],
Rooplal Sathi v Nachhattar Singh [1983] 1 SCR 702 [LNIND 1982 SC 155] [LNIND 1982 SC 155] [LNIND 1982 SC 155] (the
directions issued by the Election Commission are binding on the electoral officers, but these directions cannot be treated as if
they are law, the violation of which could result in the invalidation of the election).
See Laxmi Charan Sen v A KM Hussain Uzzam AIR 1985 SC 1233 [LNIND 1985 SC 182] [LNIND 1985 SC 182] [LNIND 1985
SC 182], Laxmi Charan Sen v A KM Hussain Uzzam (1985) 4 SCC 689 [LNIND 1985 SC 182] [LNIND 1985 SC 182] [LNIND
1985 SC 182], Laxmi Charan Sen v A KM Hussain Uzzam [1985] Supp 1 SCR 493. Also see N Krishnappa v Chief Election
Commissioner AIR 1995 AP 212 [LNIND 1994 AP 431] [LNIND 1994 AP 431] [LNIND 1994 AP 431]; Kanhaiya Prasad Sinha v
Union of India AIR 1990 Pat 189, Kanhaiya Prasad Sinha v Union of India (1990) Lab IC 1517, Kanhaiya Prasad Sinha v Union
of India (1990) 1 BLJR 718.
11
79 79
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For instance, when an authority could make rules under the statutory power subject to previous publication, but the authority
made 'rules' without following such a procedure, the court can treat these rules as directions. As to previous publication see
[005.039].
Where the statutory provision conferred power to make rules 'to carry out the purposes of the Act', but a 'rule' has been made
which is not relatable to any of the purposes of the Act, the same may be treated as a direction. See [005.009] and following.
12 Co-operative Credit Bank v Additional Industrial Tribunal, Hyderabad AIR 1970 SC 245 [LNIND 1969 SC 152] [LNIND 1969
SC 152] [LNIND 1969 SC 152], Co-operative Credit Bank v Additional Industrial Tribunal, Hyderabad (1969) 2 SCC 43 [LNIND
1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152], Co-operative Credit Bank v Additional Industrial Tribunal,
Hyderabad [1970] 1 SCR 205 [LNIND 1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152]; National Cooperative
Federation Ltd, New Delhi v Delhi Administration, Delhi AIR 1971 Del 141 [LNIND 1970 DEL 44] [LNIND 1970 DEL 44] [LNIND
1970 DEL 44]; Bihar State Co-op Bank Ltd v Registarar, Co-operative Societies AIR 1975 Pat 187.
13
Megna Mills Co Ltd v Ashoka Marketing Ltd AIR 1971 SC 166 [LNIND 1970 SC 451] [LNIND 1970 SC 451] [LNIND 1970 SC
451], Megna Mills Co Ltd v Ashoka Marketing Ltd (1970) 3 SCC 168 [LNIND 1970 SC 451] [LNIND 1970 SC 451] [LNIND 1970
SC 451], Megna Mills Co Ltd v Ashoka Marketing Ltd [1971] 2 SCR 751 [LNIND 1970 SC 451] [LNIND 1970 SC 451] [LNIND
1970 SC 451] (depending on a provision in the relevant statute which stated that any contract in contravention of the bye-laws
would be void and illegal, it was held that the bye-laws made by the recognised association are mandatory and any contract
entered into in contravention of these bye-laws will be invalid.
See also Trustees of the Port of Bombay v Premier Automobiles Ltd AIR 1971 Bom 317 [LNIND 1970 BOM 49] [LNIND 1970
BOM 49] [LNIND 1970 BOM 49], Trustees of the Port of Bombay v Premier Automobiles Ltd 73 Bom LR1; Mafatlal Naraindas
Barot v J D Rathod, Divisional Controller, State Transport, Mehsana AIR 1966 SC 1364 [LNIND 1965 SC 372] [LNIND 1965 SC
372] [LNIND 1965 SC 372], Mafatlal Naraindas Barot v J D Rathod, Divisional Controller, State Transport, Mehsana [1966] 3
SCR 40 [LNIND 1965 SC 372] [LNIND 1965 SC 372] [LNIND 1965 SC 372], Mafatlal Naraindas Barot v J D Rathod, Divisional
Controller, State Transport, Mehsana (1966) 1 LLJ 437 [LNIND 1965 SC 372] [LNIND 1965 SC 372] [LNIND 1965 SC 372];
Sirsi Municipality by its President, Sirsi v Cecelia Kom Francis Tellis AIR 1973 SC 855 [LNIND 1973 SC 16] [LNIND 1973 SC
16] [LNIND 1973 SC 16], Sirsi Municipality by its President, Sirsi v Cecelia Kom Francis Tellis (1973) 1 SCC 409 [LNIND 1973
SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16], Sirsi Municipality by its President, Sirsi v Cecelia Kom Francis Tellis [1973] 3
Indian Airlines Corporation v Sukhdeo Rai AIR 1971 SC 1828 [LNIND 1971 SC 658] [LNIND 1971 SC 658] [LNIND 1971 SC
658], Indian Airlines Corporation v Sukhdeo Rai (1971) 2 SCC 192 [LNIND 1971 SC 658] [LNIND 1971 SC 658] [LNIND 1971
SC 658], Indian Airlines Corporation v Sukhdeo Rai [1971] Supp SCR 510 (service regulations made by a statutory corporation
were not 'rules' but only 'directions' in the real sense of the term) overruled in Sukhdev Singh v Bhagatram Sardar Singh
Raghuvanshi AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh v Bhagatram
Sardar Singh Raghuvanshi (1975) 1 SCC 421 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh v
Bhagatram Sardar Singh Raghuvanshi [1975] 3 SCR 619 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79]
(regulations made by a statutory body under a statutory power constitute delegated legislation, that there is no difference
between rules and regulations, and that regulations, even those applying to employees, are statutory in nature.

ADMINISTRATIVE LAW/6. DIRECTIONS/(2) IDENTIFICATION/[005.046] Interpretative rules
[005.046] Interpretative rules Interpretative rules are rules issued by the administration to clarify statutory
provisions whereby the administration gives its own interpretation of a statutory provision1. These rules may
only be regarded as directions, and not rules, since they are issued not under any statutory provision but
under the general administrative powers2.
Moreover, what is binding on the courts is the law itself and not how the administration interprets the same3.
1 The system of issuing interpretative rules prevails in Britain as well: Megarry, Megarry,'Administrative Quasi-Legislation'
(1944) 60 LQR 125. As to interpretation of statutes see generally [275]STATUTES.
2 As to general administrative powers see [005.045] note 5.

80 80
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3 See Oudh Sugar Mills v State of Madhya Pardesh AIR 1975 MP 125, Oudh Sugar Mills v State of Madhya Pardesh (1974)
MP LJ 877, Oudh Sugar Mills v State of Madhya Pardesh (1975) LLJ 539 (the court rejected the administrative interpretation of
a rule as being an untenable interpretation, which is opposed to common sense interpretation). See also Bengal Iron Corp v
Commercial Tax Officer AIR 1993 SC 2414 [LNIND 1993 SC 401] [LNIND 1993 SC 401] [LNIND 1993 SC 401], Bengal Iron
Corp v Commercial Tax Officer (1993) 3 JT 134, Bengal Iron Corp v Commercial Tax Officer (1993) 66 ELT 13.

ADMINISTRATIVE LAW/6. DIRECTIONS/(3) ENFORCEABILITY/[005.047] Enforceability
[005.047] Enforceability There are several propositions having a bearing on the enforceability of directions.
Some of them are enunciated below.
(1) Directions are subsidiary to rules or statutes. A direction may be amended by another
direction1 or by a rule. However, directions may not amend, supersede, override or circumvent
rules or any provision in the parent statute2.
(2) Directions may supplement rules3 and may be enforced along with the rules to facilitate the
smooth operation of rules4. Moreover, when rules are silent on a point, directions may be
issued to fill in the gaps5. However, such directions may be issued only by the authority having
power to make rules and by no other authority6.
(3) A direction inconsistent with a rule cannot stand7. Directions in conflict with the parent statute
or any other statute will not be operative and have to be ignored even if they have been
followed for long and have been found to be convenient8.
(4) Whether a direction is supplementary to, or infringes upon a rule, will be adjudged by the
courts9.
(5) Directions must not adversely affect the rights of individuals10. As departmental instructions
without statutory foundation do not constitute law, no restraints may validly be put upon the
personal liberty of any person through directions11.
(6) Where there is a conflict between directions issued under administrative powers and those
issued under statutory power, the latter will prevail over the former12.
(7) An administrative direction which is illogical or irrational will be deemed invalid13. Directions
may be held invalid for arbitrariness in administrative action14. On the other hand,
non-observance of the direction may result in the administrative action being held arbitrary15.
(8) No directions may be issued to an authority upon which the law confers certain discretionary
powers16 and there is no provision in the relevant law for issuing of directions to it17. However,
certain guidelines and procedural safeguards may be laid down for regulating the exercise of
discretionary power18.
(9) Directions neither confer any enforceable right on a person nor impose an obligation or duty
upon the administration19. Misconstruction or misapplication of a direction by the administration
does not amount to an error of law20. Even where a direction prima facie seeks to impose an
obligation, either upon an individual or the administration, the non-compliance of the direction
will not lead to an issue of mandamus21 by the court22.
(10) The validity of an administrative action taken in breach of a direction is not challengeable and
the court will not issue a writ even when there is a patent breach of an administrative
direction23.
(11) The judicial approach as to when a direction may be treated as binding is mostly pragmatic
and depends on the facts and circumstances of each case24. Directions will be binding if they
confer a benefit upon an individual, such as, laying down procedural safeguards for search and
seizure25. Directions may be binding upon the administration on the principle of promissory
estoppel26. In matters of government service, directions issued by the government are binding
in the absence of the rules27. Further, where a direction has been followed for long by the
government, it may be considered binding28.
81 81
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1 Sadhu Singh v State of Punjab AIR 1984 SC 739 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24], Sadhu
Singh v State of Punjab (1984) 2 SCC 310 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24], Sadhu Singh v
State of Punjab [1984] 2 SCR 741 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24].
2 Union of India v Daljeet Singh AIR 1999 SC 1052 [LNIND 1999 SC 1355] [LNIND 1999 SC 1355] [LNIND 1999 SC 1355],
Union of India v Daljeet Singh (1999) 2 SCC 672 [LNIND 1999 SC 1355] [LNIND 1999 SC 1355] [LNIND 1999 SC 1355], Union
of India v Daljeet Singh (1999) 1 JT 609 (a non-statutory notification which amounts to a mere executive order, cannot
supersede a statutory notification. Accordingly, a notification issued under the Transaction of Business Rules is a statutory
notification and it prevails over a notification issued under general administrative power).
3 Senior Suptd of Post Office v Izhar Hussain AIR 1989 SC 2262 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND 1989
SC 396], Senior Suptd of Post Office v Izhar Hussain (1989) 4 SCC 318 [LNIND 1989 SC 396] [LNIND 1989 SC 396] [LNIND
1989 SC 396], Senior Suptd of Post Office v Izhar Hussain [1989] 3 SCR 796 [LNIND 1989 SC 396] [LNIND 1989 SC 396]
[LNIND 1989 SC 396] (a direction may supplement some lacuna or gap in a valid rule but a statutory rule which is
constitutionally invalid cannot be validated with the support of executive instructions. The instructions can only supplement and
not supplant the rule).
4 State of Gujarat v Akhilesh C Bhargav AIR 1987 SC 2135 [LNIND 1987 SC 611] [LNIND 1987 SC 611] [LNIND 1987 SC
611], State of Gujarat v Akhilesh C Bhargav (1987) 4 SCC 482 [LNIND 1987 SC 611] [LNIND 1987 SC 611] [LNIND 1987 SC
611], State of Gujarat v Akhilesh C Bhargav [1987] 2 SCR 1091 (the combined effect of the rules and the directions was that if
an officer appointed initially on probation continued in service beyond three years, it would amount to his confirmation);
Virendra Kumar v Union of India AIR 1981 SC 947, Virendra Kumar v Union of India (1981) 1 SCC 485, Virendra Kumar v
Union of India (1981) 2 SCJ 92; State of Uttar Pradesh v Chandra Mohan AIR 1977 SC 2411, State of Uttar Pradesh v
Chandra Mohan (1977) 4 SCC 345, State of Uttar Pradesh v Chandra Mohan [1978] 1 SCR 521 (the directions may become a
part and parcel of, and interwoven with, the rule in question and so enforceable and binding on the government. Therefore, as
the procedure laid down in the directions was not meticulously followed, the order of retirement was void).
P Tulsi Das v Government of Andhra Pradesh (2003) 1 SCC 364 [LNIND 2007 SC 934] [LNIND 2007 SC 934] [LNIND 2007 SC
934] (in the absence of rules in respect of a particular area, aspect or subject, it is permissible for the state to make provisions
in exercise of its executive powers which is coextensive with its legislative powers); Krushna Chandra Sahu v State of Orissa
AIR 1996 SC 352 [LNIND 1995 SC 889] [LNIND 1995 SC 889] [LNIND 1995 SC 889], Krushna Chandra Sahu v State of Orissa
(1995) 6 SCC 1 [LNIND 1995 SC 889] [LNIND 1995 SC 889] [LNIND 1995 SC 889], Krushna Chandra Sahu v State of Orissa
(1996) 1 Lab IC 53 (if the rules have been made but they are silent on any subject or point in issue, the omission can be
supplied and the rules can be supplemented by executive instructions); State of Haryana v Shamsher Jung Shukla AIR 1972
SC 1546 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245], State of Haryana v Shamsher Jung Shukla (1972)
2 SCC 188 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245], State of Haryana v Shamsher Jung Shukla
[1973] 1 SCR 249 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245] following Sant Ram Sharma v State of
Rajasthan AIR 1967 SC 1910 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC 222], Sant Ram Sharma v State of
Rajasthan [1968] 1 SCR 111 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC 222], Sant Ram Sharma v State of
Rajasthan (1967) 2 SCA 574 (if the rules are silent on any particular point, the government can fill up the gaps and supplement
the rules and issue instructions not inconsistent with the rules already framed).
See Paluru Ramkrishnaiah v Union of India AIR 1990 SC 166 [LNIND 1989 SC 747] [LNIND 1989 SC 747] [LNIND 1989 SC
747], Paluru Ramkrishnaiah v Union of India (1989) 2 SCC 541 [LNIND 1989 SC 172] [LNIND 1989 SC 172] [LNIND 1989 SC
172], Paluru Ramkrishnaiah v Union of India [1989] 2 SCR 92 [LNIND 1989 SC 172] [LNIND 1989 SC 172] [LNIND 1989 SC
172] (an executive instruction could make a provision only with regard to a matter which was not covered by the rules and such
executive instructions could not override any provision of the rules). See also Union of India v Rakesh Kumar AIR 2001 SC
1877 [LNIND 2001 SC 860] [LNIND 2001 SC 860] [LNIND 2001 SC 860], Union of India v Rakesh Kumar (2001) 4 SCC 309
[LNIND 2001 SC 860] [LNIND 2001 SC 860] [LNIND 2001 SC 860], Union of India v Rakesh Kumar (2001) 4 JT 306; State of
Orissa v Mantarani Sahoo AIR 1999 SC 3370, State of Orissa v Mantarani Sahoo (1998) 8 SCC 753, State of Orissa v
Mantarani Sahoo (1999) Lab IC 2621; Union of India v Somasundram Viswanath AIR 1988 SC 2255 [LNIND 1988 SC 477]
[LNIND 1988 SC 477] [LNIND 1988 SC 477], Union of India v Somasundram Viswanath (1988) 3 JT 724 [LNIND 1988 SC 477]
[LNIND 1988 SC 477] [LNIND 1988 SC 477]; Ramchandra Shankar Deodhar v State of Maharashtra AIR 1974 SC 259 [LNIND
1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329], Ramchandra Shankar Deodhar v State of Maharashtra (1974) 1
SCC 317 [LNIND 1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329], Ramchandra Shankar Deodhar v State of
Maharashtra [1974] 2 SCR 216 [LNIND 1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329].
6 Parmeshwar Prasad v Union of India (2002) I SCC 145.
Rajinder Singh v State of Punjab AIR 2001 SC 1769 [LNIND 2001 SC 941] [LNIND 2001 SC 941] [LNIND 2001 SC 941],
Rajinder Singh v State of Punjab (2001) 5 SCC 482 [LNIND 2001 SC 941] [LNIND 2001 SC 941] [LNIND 2001 SC 941],
Rajinder Singh v State of Punjab (2001) 3 Scale 289 [LNIND 2001 SC 941] [LNIND 2001 SC 941] [LNIND 2001 SC 941] (a rule
may not be amended or abrogated by a direction) ;Comptroller & Auditor General of India v Mohan Lal Mehrotra AIR 1991 SC
2288 [LNIND 1991 SC 540] [LNIND 1991 SC 540] [LNIND 1991 SC 540], ;Comptroller & Auditor General of India v Mohan Lal
82 82
Page
Mehrotra (1992) 1 SCC 20 [LNIND 1991 SC 540] [LNIND 1991 SC 540] [LNIND 1991 SC 540], ;Comptroller & Auditor General
of India v Mohan Lal Mehrotra [1991] Supp 1 SCR 482 (administrative orders may not be issued in contravention of the
statutory rules but it may be issued to supplement the statutory rules); State of Maharashtra v Jagannath Achyut Karandikar
AIR 1989 SC 1133 [LNIND 1989 SC 139] [LNIND 1989 SC 139] [LNIND 1989 SC 139], State of Maharashtra v Jagannath
Achyut Karandikar (1989) Supp 1 SCC 393, State of Maharashtra v Jagannath Achyut Karandikar [1989] 1 SCR 947 [LNIND
1989 SC 139] [LNIND 1989 SC 139] [LNIND 1989 SC 139] (the government may not restrict the operation of rules by issuing
executive instructions); S L Sachdev v Union of India AIR 1981 SC 411 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND
1980 SC 432], S L Sachdev v Union of India (1980) 4 SCC 562 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC
432], S L Sachdev v Union of India [1981] 1 SCR 971 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432] (any
direction which goes beyond the rules and superimposes a new criterion on the rules will be bad as lacking in jurisdiction);
State of Gujarat v Lal Singh AIR 1981 SC 368 [LNIND 1980 SC 329] [LNIND 1980 SC 329] [LNIND 1980 SC
329](administrative directions cannot abridge or run counter to the statutory provisions); State of Haryana v Shamsher Jang
Shukla AIR 1972 SC 1546 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245], State of Haryana v Shamsher
Jang Shukla (1972) 2 SCC 188 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245], State of Haryana v
Shamsher Jang Shukla [1973] 1 SCR 249 [LNIND 1972 SC 245] [LNIND 1972 SC 245] [LNIND 1972 SC 245] (when service
rules lay down certain conditions and qualifications for promotion, the government is not competent to add to these
qualifications through directions as these will be inconsistent with the rules).
See also V T Khanzode v Reserve Bank of India AIR 1982 SC 917 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC
64], V T Khanzode v Reserve Bank of India (1982) 2 SCC 7 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64], V
T Khanzode v Reserve Bank of India [1982] 3 SCR 411 [LNIND 1982 SC 64] [LNIND 1982 SC 64] [LNIND 1982 SC 64];
Accountant General v S Doraisuwamy AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452],
Accountant General v S Doraisuwamy (1981) 4 SCC 93 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452],
Accountant General v S Doraisuwamy [1981] 2 SCR 155 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452];
State of Maharashtra v Chandrakant Anant Kulkarni AIR 1981 SC 1990 [LNIND 1981 SC 379] [LNIND 1981 SC 379] [LNIND
1981 SC 379], State of Maharashtra v Chandrakant Anant Kulkarni (1981) 4 SCC 130 [LNIND 1981 SC 379] [LNIND 1981 SC
379] [LNIND 1981 SC 379], State of Maharashtra v Chandrakant Anant Kulkarni [1982] 1 SCR 665 [LNIND 1981 SC 379]
[LNIND 1981 SC 379] [LNIND 1981 SC 379]; District Registrar v MB Koyakutty AIR 1979 SC 1060 [LNIND 1979 SC 136]
[LNIND 1979 SC 136], District Registrar v MB Koyakutty (1979) 2 SCC 150 [LNIND 1979 SC 136] [LNIND 1979 SC 136],
District Registrar v MB Koyakutty [1979] 3 SCR 242; Ashok Industries v State AIR 1979 Pat 217, Ashok Industries v State
(1979) BLJ 611.
State of Sikkim v Dorjee Tshering Bhutia AIR 1991 SC 1933 [LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC
392], State of Sikkim v Dorjee Tshering Bhutia (1991) 4 SCC 243 [LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC
392], State of Sikkim v Dorjee Tshering Bhutia [1991] 3 SCR 633 [LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC
392] (any order, instruction, direction or notification issued in exercise of the executive power of the State which is contrary to
any statutory provisions, is without jurisdiction and is a nullity); State of Punjab v Hari Kishan AIR 1966 SC 1081 [LNIND 1965
SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362], State of Punjab v Hari Kishan [1966] 2 SCR 982 [LNIND 1965 SC 362]
[LNIND 1965 SC 362] [LNIND 1965 SC 362] (while the expression 'control of the government' may justify the issue of general
directions to the licensing authority, it cannot justify complete ouster of the licensing authority and usurping its functions for,
otherwise, this would amount to allowing the government to change the statutory provisions in a substantial manner by its
executive powers).
See State of Gujarat v Lal Singh Kinshan Singh AIR 1981 SC 368 [LNIND 1980 SC 329] [LNIND 1980 SC 329] [LNIND 1980
SC 329], State of Gujarat v Lal Singh Kinshan Singh (1981) 2 SCC 75 [LNIND 1980 SC 329] [LNIND 1980 SC 329] [LNIND
1980 SC 329], State of Gujarat v Lal Singh Kinshan Singh [1962] 3 SCR 391 [LNIND 1961 SC 292] [LNIND 1961 SC 292]
[LNIND 1961 SC 292]; Karnari Properties Ltd v Corporation of Calcutta AIR 1973 Cal. 488 [LNIND 1973 CAL 117] [LNIND
1973 CAL 117] [LNIND 1973 CAL 117], Karnari Properties Ltd v Corporation of Calcutta (1973) Tax LR 2612; Mannalal Jain v
State of Assam AIR 1962 SC 386 [LNIND 1961 SC 320] [LNIND 1961 SC 320] [LNIND 1961 SC 320], Mannalal Jain v State of
Assam [1962] 3 SCR 936 [LNIND 1961 SC 320] [LNIND 1961 SC 320] [LNIND 1961 SC 320], Mannalal Jain v State of Assam
(1962) 2 SCJ 93 [LNIND 1961 SC 320] [LNIND 1961 SC 320] [LNIND 1961 SC 320].
9 OP Lather v Satish Kumar Kakkar AIR 2001 SC 821 [LNIND 2001 SC 296] [LNIND 2001 SC 296] [LNIND 2001 SC 296], OP
Lather v Satish Kumar Kakkar (2001) 3 SCC 110 [LNIND 2001 SC 296] [LNIND 2001 SC 296] [LNIND 2001 SC 296], OP
Lather v Satish Kumar Kakkar (2001) 2 JT 280 (the impugned direction was only supplemental to the rule. It did not have the
effect of altering the rule nor was it inconsistent therewith); District Collector, Chittoor v Chittoor District Goundnut Traders
Association AIR 1989 SC 989 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC 690], District Collector, Chittoor v
Chittoor District Goundnut Traders Association (1989) 2 SCC 58 [LNIND 1989 SC 690] [LNIND 1989 SC 690] [LNIND 1989 SC
690], District Collector, Chittoor v Chittoor District Goundnut Traders Association [1989] 1 SCR 243 [LNIND 1989 SC 690]
[LNIND 1989 SC 690] [LNIND 1989 SC 690]; Guman Singh v State of Rajasthan AIR 1970 Raj 173, Guman Singh v State of
Rajasthan (1970) Lab IC 1152 (where a service rule provides merit alone as the basis of promotion to a higher post, a direction
providing for seniority-cum-merit for the purpose, was held bad as being inconsistent with the rule).
10 State of Uttar Pradesh v Kishori Lal AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500],
State of Uttar Pradesh v Kishori Lal (1980) 3 SCC 8 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500], State
of Uttar Pradesh v Kishori Lal [1980] 2 SCR 724.
83 83
Page
11 Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC
436], Kharak Singh v State of Uttar Pradesh [1964] 1 SCR 332 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC
436], Kharak Singh v State of Uttar Pradesh (1964) 2 SCJ 107.
12 For instance, the Government of India promulgated the Imports (Control) Order 1955, in exercise of the powers conferred on
it the Imports and Exports (Control) Act 1947. Imports (Control) Order 1955 r 10C empowers the Chief Controller of Imports and
Exports to issue directions regarding the sale of such imported goods as could not be utilised by the licensee for the purpose for
which they were imported. Apart from the Import Order, the Government of India also issued certain directions under its
administrative powers relating to this aspect of the matter. Since the controller in issuing directions under s 10C of the Import
Order acts under a statutory provision, his order will prevail over the government's directions which are issued only under
administrative powers.
13
Directions which are unreasonable and arbitrary vis-a-vis the Constitution of India are unconstitutional and hence invalid: SL
Sachdev v Union of India AIR 1981 SC 411 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432], SL Sachdev v
Union of India (1980) 4 SCC 562 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432], SL Sachdev v Union of
India [1981] 1 SCR 971 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432]; Ushodaya Publications Pvt Ltd v
State of Andhra Pradesh AIR 1981 AP 109, Ushodaya Publications Pvt Ltd v State of Andhra Pradesh (1981) 1 Andh LT 1,
Ushodaya Publications Pvt Ltd v State of Andhra Pradesh (1981) 1 Andh WR 214.
Constitution of India art 14 strikes at arbitrariness in administrative action: P M Mohammad Ali v Union of India AIR 1974 Ker
157 [LNIND 1973 KER 120] [LNIND 1973 KER 120] [LNIND 1973 KER 120], P M Mohammad Ali v Union of India (1973) Ker LJ
878, P M Mohammad Ali v Union of India (1974) Ker LT 170 [LNIND 1973 KER 120] [LNIND 1973 KER 120] [LNIND 1973 KER
120]; Prem Prakash v Union of India AIR 1984 SC 831, Prem Prakash v Union of India (1984) Supp SCC 687, Prem Prakash v
Union of India [1985] 1 SCR 564 [LNIND 1984 SC 220] [LNIND 1984 SC 220] [LNIND 1984 SC 220]; Union of India v H R
Patankar AIR 1984 SC 1587 [LNIND 1984 SC 211] [LNIND 1984 SC 211] [LNIND 1984 SC 211], Union of India v H R Patankar
(1984) Supp SCC 359, Union of India v H R Patankar [1985] 1 SCR 400 [LNIND 1984 SC 211] [LNIND 1984 SC 211] [LNIND
1984 SC 211]; State of Madhya Pradesh v Nivedita Jain AIR 1982 SC 2045, State of Madhya Pradesh v Nivedita Jain (1981) 4
SCC 296 [LNIND 1981 SC 395] [LNIND 1981 SC 395] [LNIND 1981 SC 395], State of Madhya Pradesh v Nivedita Jain [1982] 1
SCR 759 [LNIND 1981 SC 395] [LNIND 1981 SC 395] [LNIND 1981 SC 395]; R Chitralekha v State of Mysore AIR 1964 SC
1823 [LNIND 1964 SC 20] [LNIND 1964 SC 20] [LNIND 1964 SC 20], R Chitralekha v State of Mysore [1964] 6 SCR 368
See however Akhil Bharatiya Soshit Karamchari Sangh (Railway) v Union of India AIR 1981 SC 298 [LNIND 1980 SC 460]
[LNIND 1980 SC 460] [LNIND 1980 SC 460], Akhil Bharatiya Soshit Karamchari Sangh (Railway) v Union of India [1981] 2 SCR
185 [LNIND 1980 SC 460] [LNIND 1980 SC 460] [LNIND 1980 SC 460], Akhil Bharatiya Soshit Karamchari Sangh (Railway) v
Union of India (1980) Lab IC 1325 (circulars issued by the railway board designed to protect and promote the interests of the
members of the scheduled castes and scheduled tribes by way of prescribing softer criteria for their promotion in service under
the board are constitutional and hence valid).
14
A direction may be quashed as being discriminatory under the Constitution of India art 14 Some instances of the application of
the aforesaid proposition are stated below.
(1) Classification made for the purpose of determining the promotional opportunities was characterised as
unreasonable, arbitrary and resulting in injustice in specific cases): S L Sachdev v Union of India AIR 1981 SC
411 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432], S L Sachdev v Union of India (1980) 4
SCC 562 [LNIND 1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432], S L Sachdev v Union of India
(2) Executive instructions regulating service conditions were held to be unfair and making an irrational
classification: District Registrar, Palghat v MB Koyyakutty AIR 1979 SC 1060 [LNIND 1979 SC 136] [LNIND
1979 SC 136], District Registrar, Palghat v MB Koyyakutty (1979) 2 SCC 150 [LNIND 1979 SC 136] [LNIND
1979 SC 136], District Registrar, Palghat v MB Koyyakutty [1979] 3 SCR 242.
(3) Service rules including directions must be reasonable, fair and not grossly unjust if they are to survive the test
of constitutionality: see ML Jain v Union of India AIR 1989 SC 669 [LNIND 1988 SC 397] [LNIND 1988 SC
397] [LNIND 1988 SC 397], ML Jain v Union of India (1988) 4 SCC 121 [LNIND 1988 SC 397] [LNIND 1988
SC 397] [LNIND 1988 SC 397], ML Jain v Union of India [1988] Supp 2 SCR 496; Baleshwar Dass v State of
Uttar Pradesh AIR 1981 SC 41 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334], Baleshwar
Dass v State of Uttar Pradesh (1980) 4 SCC 226 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980
SC 334], Baleshwar Dass v State of Uttar Pradesh (1981) 1 LLJ 140 [LNIND 1980 SC 334] [LNIND 1980 SC
334] [LNIND 1980 SC 334]. For impact of art 14 of the Constitution on the administrative process see
[005.006].
15
As to the administration acting arbitrarily see [005.161]. Minor A Pariakaruppan v State of Tamil Nadu AIR 1971 SC 2303
84 84
Page
[LNIND 1970 SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC 386], Minor A Pariakaruppan v State of Tamil Nadu (1971) 1
SCC 38 [LNIND 1970 SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC 386], Minor A Pariakaruppan v State of Tamil Nadu
[1971] 2 SCR 430 [LNIND 1970 SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC 386] (by not adhering to the criterion laid down
in a direction by the government, the committee acted arbitrarily resulting in discrimination amongst the candidates and this was
violative of art 14).
See Sadhu Singh v State of Punjab AIR 1984 SC 739 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24], Sadhu
Singh v State of Punjab (1984) 2 SCC 310 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24], Sadhu Singh v
State of Punjab [1984] 2 SCR 741 [LNIND 1984 SC 24] [LNIND 1984 SC 24] [LNIND 1984 SC 24] (direction must be applied
'uniformly and invariably' by the concerned authority to all cases so as to avoid a charge of discrimination under art 14).
16 National Plastic and Allied Industries, Lucknow v Union of India AIR 1973 All 102. See, infra, under Discretionary Powers
17
Sri Ram Vilas Service Ltd v Road Traffic Board, Madras AIR 1948 Mad 400 [LNIND 1947 MAD 216] [LNIND 1947 MAD 216]
[LNIND 1947 MAD 216], Sri Ram Vilas Service Ltd v Road Traffic Board, Madras (1948) Mad WN 67, Sri Ram Vilas Service Ltd
v Road Traffic Board, Madras (1948) 1 Mad LJ 85 (by entrusting power to a specified authority, the legislature places its trust
and confidence in the judgement of that authority, and therefore, that authority should be left free to function without any
dictation from any one, including his senior authority).
See also State of Punjab v Hari Kishan Sharma AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965
SC 362], State of Punjab v Hari Kishan Sharma [1966] 2 SCR 982 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965
SC 362], State of Punjab v Hari Kishan Sharma (1966) 1 SCA 859; Ushodaya Publications Pvt Ltd v State of Andhra Pradesh
AIR 1981 AP 109, Ushodaya Publications Pvt Ltd v State of Andhra Pradesh (1981) 1 Andh LT 1, Ushodaya Publications Pvt
Ltd v State of Andhra Pradesh (1981) 1 Andh WR 214.
18 As to discretionary powers see generally [005.182] and following.
19
JR Raghupathy v State of Andhra Pradesh AIR 1988 SC 1681 [LNIND 1988 SC 692] [LNIND 1988 SC 692] [LNIND 1988 SC
692], JR Raghupathy v State of Andhra Pradesh (1988) 4 SCC 364 [LNIND 1988 SC 692] [LNIND 1988 SC 692] [LNIND 1988
SC 692], JR Raghupathy v State of Andhra Pradesh [1988] Supp 1 SCR 694; GJ Fernandez v State of Mysore AIR 1967 SC
1753 [LNIND 1967 SC 139] [LNIND 1967 SC 139] [LNIND 1967 SC 139], GJ Fernandez v State of Mysore [1967] 3 SCR 636
[LNIND 1967 SC 139] [LNIND 1967 SC 139] [LNIND 1967 SC 139]; Karnani Properties Ltd v Corporation of Calcutta AIR 1973
Cal 488 [LNIND 1973 CAL 117] [LNIND 1973 CAL 117] [LNIND 1973 CAL 117], Karnani Properties Ltd v Corporation of
Calcutta (1973) Tax LR 2612; TM Peermohamed v DFO AIR 1974 Ker 192.
See also Narendra Kumar Maheshwari v Union of India AIR 1989 SC 2138 [LNIND 1989 SC 301] [LNIND 1989 SC 301]
[LNIND 1989 SC 301], Narendra Kumar Maheshwari v Union of India (1990) Supp SCC 440, Narendra Kumar Maheshwari v
Union of India [1989] 3 SCR 43 [LNIND 1989 SC 301] [LNIND 1989 SC 301] [LNIND 1989 SC 301]; Andhra Industrial Works v
Chief Controller of Imports AIR 1974 SC 1539 [LNIND 1974 SC 169] [LNIND 1974 SC 169] [LNIND 1974 SC 169], Andhra
Industrial Works v Chief Controller of Imports (1974) 2 SCC 348 [LNIND 1974 SC 169] [LNIND 1974 SC 169] [LNIND 1974 SC
169], Andhra Industrial Works v Chief Controller of Imports [1975] 1 SCR 321 [LNIND 1974 SC 169] [LNIND 1974 SC 169]
[LNIND 1974 SC 169]; Deputy Assistant Iron & Steel Controller, Madras v L Manekchand Proprietor, Katralla Metal
Corporation, Madras AIR 1972 SC 935 [LNIND 1972 SC 624] [LNIND 1972 SC 624] [LNIND 1972 SC 624], Deputy Assistant
Iron & Steel Controller, Madras v L Manekchand Proprietor, Katralla Metal Corporation, Madras (1972) 3 SCC 324 [LNIND 1972
SC 624] [LNIND 1972 SC 624] [LNIND 1972 SC 624], Deputy Assistant Iron & Steel Controller, Madras v L Manekchand
Proprietor, Katralla Metal Corporation, Madras [1972] 3 SCR 1 [LNIND 1972 SC 624] [LNIND 1972 SC 624] [LNIND 1972 SC
624]; R Abdulla Rowther v State Transport Appellate Tribunal,Madras AIR 1959 SC 396.
20 As to errors of law see [005.292]-[005.294].
21 As to the writ of mandamus see [005.283]-[005.288].
22 See A Prabhakar Reddy v State of Karnataka AIR 1980 Kant 207, A Prabhakar Reddy v State of Karnataka (1980) 1 Kant
LJ 450.
23
R Abdulla Rowther v State Transport Appellate Tribunal,Madras AIR 1959 SC 396; General Electrical & Engineering Co,
Trichur v Chief Engineer (Project) AIR 1974 Ker 23 [LNIND 1972 KER 103] [LNIND 1972 KER 103] [LNIND 1972 KER 103],
General Electrical & Engineering Co, Trichur v Chief Engineer (Project) (1973) Ker LT 321; SP Manocha v State of Madhya
Pradesh AIR 1973 MP 84 [LNIND 1972 MP 47] [LNIND 1972 MP 47] [LNIND 1972 MP 47], SP Manocha v State of Madhya
Pradesh (1973) LLJ 318, SP Manocha v State of Madhya Pradesh (1973) MP LJ 344.
See Iranikkulam Co-op Society v Kuttikkad Service Co-op Bank Ltd AIR 1975 Ker 4, Iranikkulam Co-op Society v Kuttikkad
85 85
Page
Service Co-op Bank Ltd (1975) Ker LT 329, Iranikkulam Co-op Society v Kuttikkad Service Co-op Bank Ltd (1974) 2 ILR Ker
208 (breach of an executive instruction laying down the procedure to be followed by government officers in the matter of
granting leases of forest lands for cultivation confers no right on a person seeking to quash the administrative action); Andhra
Industrial Works v Chief Controller of Imports AIR 1974 SC 1539 [LNIND 1974 SC 169] [LNIND 1974 SC 169] [LNIND 1974 SC
169], Andhra Industrial Works v Chief Controller of Imports (1974) 2 SCC 348 [LNIND 1974 SC 169] [LNIND 1974 SC 169]
[LNIND 1974 SC 169], Andhra Industrial Works v Chief Controller of Imports [1975] 1 SCR 321 [LNIND 1974 SC 169] [LNIND
1974 SC 169] [LNIND 1974 SC 169] (no person may claim an enforceable right to the grant of an import licence merely on the
basis of an import policy); Co-operative Central Bank Ltd v Additional Industrial Tribunal, Hyderabad AIR 1970 SC 245 [LNIND
1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152], Co-operative Central Bank Ltd v Additional Industrial Tribunal,
Hyderabad (1969) 2 SCC 43 [LNIND 1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152], Co-operative Central Bank Ltd
v Additional Industrial Tribunal, Hyderabad [1970] 1 SCR 205 [LNIND 1969 SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC
152] (when conditions of service of the employees are prescribed by a co-operative society in its bye-laws, an industrial tribunal
can vary the same as the bye-laws are directions and, as such do not have the force of law); State of Assam v Ajit Kumar
Sarma AIR 1965 SC 1196 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit Kumar
Sarma [1965] 1 SCR 890 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit Kumar
Sarma (1966) 1 LLJ 451 (a person may not ask the administration to refrain from enforcing the directions unless his
constitutional or statutory rights are affected).
See also Regina v St Aloysing Higher Elementary School AIR 1971 SC 1920 [LNIND 1971 SC 178] [LNIND 1971 SC 178]
[LNIND 1971 SC 178], Regina v St Aloysing Higher Elementary School (1972) 4 SCC 188 [LNIND 1971 SC 178] [LNIND 1971
SC 178] [LNIND 1971 SC 178], Regina v St Aloysing Higher Elementary School [1971] Supp SCR 6; State of Assam v Ajit
Kumar Sarma AIR 1965 SC 1196 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit
Kumar Sarma [1965] 1 SCR 890 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit
Kumar Sarma (1966) 1 LLJ 451; Vidadala Harinadhababu v NT Ramarao, Chief Minister, State of Andhra Pradesh, Hyderabad
AIR 1990 AP 20 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333], Vidadala Harinadhababu v NT Ramarao,
Chief Minister, State of Andhra Pradesh, Hyderabad (1989) 3 Andh LT 66 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND
1989 AP 333]; Shankuntala Sahawala v Director of Public Instructions-II, Hyderabad AIR 1977 AP 381 [LNIND 1977 AP 178]
[LNIND 1977 AP 178] [LNIND 1977 AP 178], Shankuntala Sahawala v Director of Public Instructions-II, Hyderabad (1977) Lab
IC 1730 [LNIND 1977 AP 178] [LNIND 1977 AP 178] [LNIND 1977 AP 178], Shankuntala Sahawala v Director of Public
Instructions-II, Hyderabad (1977) Andh LT 492 [LNIND 1977 AP 178] [LNIND 1977 AP 178] [LNIND 1977 AP 178]; Santosh
Kumar Agarwalla v State of Orissa AIR 1973 Ori 217, Santosh Kumar Agarwalla v State of Orissa (1973) ILR Cut 243.
24
Union of India v KP Joseph AIR 1973 SC 303 [LNIND 1972 SC 507] [LNIND 1972 SC 507] [LNIND 1972 SC 507], Union of
India v KP Joseph (1973) 1 SCC 194 [LNIND 1972 SC 507] [LNIND 1972 SC 507] [LNIND 1972 SC 507], Union of India v KP
Joseph [1973] 2 SCR 752 [LNIND 1972 SC 507] [LNIND 1972 SC 507] [LNIND 1972 SC 507] (to say that an administrative
order can never confer any right would be too wide a proposition. There are administrative orders which confer rights and
impose duties); Anil Kumar Bhattacharya v Union of India AIR 2001 Gau 108, Anil Kumar Bhattacharya v Union of India (2001)
2 Gau LR 346 (the instruction by the telephone department that if the telephone service of a subscriber remains interrupted
continuously for 15 days or more due to departmental reasons, rebate in rent should be granted for the period was binding on
the department); Home Secretary UT of Chandigarh v Darshjit Singh Grewal (1993) 4 SCC 25 (policy guidelines or executive
instructions are binding until altered); Union of India v Somasundram Viswanath AIR 1988 SC 2255 [LNIND 1988 SC 477]
[LNIND 1988 SC 477] [LNIND 1988 SC 477], Union of India v Somasundram Viswanath (1988) 3 JT 724 [LNIND 1988 SC 477]
[LNIND 1988 SC 477] [LNIND 1988 SC 477] (The office memorandum issued by the Central Government was a complete code
on the matters dealt with by it and there was nothing in the memorandum in conflict with any rule and, therefore, the
memorandum 'is entitled to be treated as valid and binding on all concerned'); Juthika Bhattacharya v State of Madhya Pradesh
AIR 1976 SC 2534 [LNIND 1976 SC 306] [LNIND 1976 SC 306] [LNIND 1976 SC 306], Juthika Bhattacharya v State of Madhya
Pradesh (1976) 4 SCC 96 [LNIND 1976 SC 306] [LNIND 1976 SC 306] [LNIND 1976 SC 306], Juthika Bhattacharya v State of
Madhya Pradesh (1977) 1 SCR 477 [LNIND 1976 SC 306] [LNIND 1976 SC 306] [LNIND 1976 SC 306] (a provision in the
memorandum issued by the government as regards the qualifications of the staff of higher secondary schools run by the
government was held binding); KM Shanmugam, Proprietor, K M S Transport Tanjore, Madras State v SRVS Pvt Ltd AIR 1963
SC 1626 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25], KM Shanmugam, Proprietor, K M S Transport
Tanjore, Madras State v SRVS Pvt Ltd [1964] 1 SCR 809 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25], KM
Shanmugam, Proprietor, K M S Transport Tanjore, Madras State v SRVS Pvt Ltd (1964) 2 SCJ 120 [LNIND 1963 SC 25]
[LNIND 1963 SC 25] [LNIND 1963 SC 25] following Raman & Raman v State of Madras AIR 1959 SC 694 [LNIND 1959 SC 20]
[LNIND 1959 SC 20] [LNIND 1959 SC 20], Raman & Raman v State of Madras [1959] Supp 2 SCR 227 (directions could not
add to, or subtract from, the considerations prescribed under Motor Vehicles Act 1939 s 47 but could only afford a reasonable
guidance for exercising the jurisdiction by the authority).
A beneficial direction issued under the Income Tax Act 1961 cannot be ignored: see Commissioner of Income Tax, Mumbai v
Anjum M H Ghaswala (2002) 1 SCC 633 [LNIND 2001 SC 2389] [LNIND 2001 SC 2389] [LNIND 2001 SC 2389]; UCO Bank,
Calcutta v Commissioner of Income Tax, West Bengal AIR 1999 SC 2082 [LNIND 1999 SC 548] [LNIND 1999 SC 548] [LNIND
1999 SC 548]; Keshavji Ravji & Co v Income-Tax Comr AIR 1991 SC 1806 [LNIND 1990 SC 60] [LNIND 1990 SC 60] [LNIND
1990 SC 60], Keshavji Ravji & Co v Income-Tax Comr (1990) 2 SCC 231 [LNIND 1990 SC 60] [LNIND 1990 SC 60] [LNIND
1990 SC 60], Keshavji Ravji & Co v Income-Tax Comr [1990] 1 SCR 243; KP Varghese v Income Tax Officer, Ernakulam AIR
1981 SC 1922 [LNIND 1981 SC 373] [LNIND 1981 SC 373] [LNIND 1981 SC 373], KP Varghese v Income Tax Officer,
Ernakulam (1981) 4 SCC 173 [LNIND 1981 SC 373] [LNIND 1981 SC 373] [LNIND 1981 SC 373], KP Varghese v Income Tax
Officer, Ernakulam [1982] 1 SCR 629 [LNIND 1981 SC 373] [LNIND 1981 SC 373] [LNIND 1981 SC 373]; Ellerman Lines v
86 86
Page
Commissioner of Income Tax AIR 1972 SC 524 [LNIND 1971 SC 548] [LNIND 1971 SC 548] [LNIND 1971 SC 548], Ellerman
Lines v Commissioner of Income Tax (1972) 4 SCC 474 [LNIND 1971 SC 548] [LNIND 1971 SC 548] [LNIND 1971 SC 548],
Ellerman Lines v Commissioner of Income Tax [1972] 2 SCR 168 [LNIND 1971 SC 548] [LNIND 1971 SC 548] [LNIND 1971 SC
548]; Navnit C Javeri v A K Sen, Appellate Assistant Comr of Income Tax, Bombay AIR 1965 SC 1375 [LNIND 1964 SC 287]
[LNIND 1964 SC 287] [LNIND 1964 SC 287], Navnit C Javeri v A K Sen, Appellate Assistant Comr of Income Tax, Bombay
[1965] 1 SCR 909 [LNIND 1964 SC 287] [LNIND 1964 SC 287] [LNIND 1964 SC 287], Navnit C Javeri v A K Sen, Appellate
Assistant Comr of Income Tax, Bombay (1965) 56 ITR 198 [LNIND 1964 SC 287] [LNIND 1964 SC 287] [LNIND 1964 SC 287].
See Paper Products v Collector of Central Excise (1999) 7 SCC 84 [LNIND 1999 SC 736] [LNIND 1999 SC 736] [LNIND 1999
SC 736]; Collector of Central Excise, Bombay v Jayant Dalal Pvt Ltd (1997) 10 SCC 402; Collector of Central Excise, Bombay
v Kores (India) Ltd, Thane (1997) 10 SCC 338; Collector of Central Excise, Patna v Usha Martin Industries (1997) 7 SCC 47
[LNIND 1997 SC 1882] [LNIND 1997 SC 1882] [LNIND 1997 SC 1882]; Ranbaxy Micronutrients v Collector of Central Excise
(1996) 10 SCC 387 [LNIND 1996 SC 1432] [LNIND 1996 SC 1432] [LNIND 1996 SC 1432].
See also Indra Sawhney v Union of India AIR 1993 SC 477, Indra Sawhney v Union of India (1992) 3 Supp SCC 210;
Comptroller & Auditor-General of India, Gian Prakash, New Delhi v KS Jagannathan AIR 1989 SC 537, Comptroller &
Auditor-General of India, Gian Prakash, New Delhi v KS Jagannathan (1986) 2 SCC 679 [LNIND 1986 SC 96] [LNIND 1986 SC
96] [LNIND 1986 SC 96], Comptroller & Auditor-General of India, Gian Prakash, New Delhi v KS Jagannathan [1986] 2 SCR 17
[LNIND 1986 SC 96] [LNIND 1986 SC 96] [LNIND 1986 SC 96]; V Balasubramanian v Tamil Nadu Housing Board AIR 1988
SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661], V Balasubramanian v Tamil Nadu Housing Board
(1987) 4 SCC 738 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC 661], V Balasubramanian v Tamil Nadu
Housing Board (1987) 4 JT 617; General Manager, Southern Railway v Rangachari AIR 1962 SC 36 [LNIND 1961 SC 220]
[LNIND 1961 SC 220] [LNIND 1961 SC 220], General Manager, Southern Railway v Rangachari [1962] 2 SCR 586 [LNIND
1961 SC 220] [LNIND 1961 SC 220] [LNIND 1961 SC 220], General Manager, Southern Railway v Rangachari (1961) 2 SCJ
424.
25 Oswal Woollen Mills Ltd v Union of India AIR 1983 SC 969 [LNIND 1983 SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC
167], Oswal Woollen Mills Ltd v Union of India (1983) 4 SCC 345 [LNIND 1983 SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC
167], Oswal Woollen Mills Ltd v Union of India [1983] 3 SCR 362 [LNIND 1983 SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC
167]; Joint Chief Controller of Imports and Exports v Aminchand Mutha AIR 1966 SC 478 [LNIND 1965 SC 176] [LNIND 1965
SC 176] [LNIND 1965 SC 176], Joint Chief Controller of Imports and Exports v Aminchand Mutha [1966] 1 SCR 262 [LNIND
1965 SC 176] [LNIND 1965 SC 176] [LNIND 1965 SC 176]. See J Fernandez & Co v Deputy Chief Controller of Imports &
Exports AIR 1975 SC 1208 [LNIND 1975 SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104], J Fernandez & Co v Deputy
Chief Controller of Imports & Exports (1975) 1 SCC 716 [LNIND 1975 SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104], J
Fernandez & Co v Deputy Chief Controller of Imports & Exports [1975] 3 SCR 867 [LNIND 1975 SC 104] [LNIND 1975 SC 104]
[LNIND 1975 SC 104]. See however Andhra Industrial Works v Chief Controller of Imports AIR 1974 SC 1539 [LNIND 1974 SC
169] [LNIND 1974 SC 169] [LNIND 1974 SC 169], Andhra Industrial Works v Chief Controller of Imports (1974) 2 SCC 348
[LNIND 1974 SC 169] [LNIND 1974 SC 169] [LNIND 1974 SC 169], Andhra Industrial Works v Chief Controller of Imports
26 Khet Singh v Union of India (2002) 4 SCC 380 [LNIND 2002 SC 227] [LNIND 2002 SC 227]. As to the principle of
promissory estoppel see [005.297]-[005.300]; also see ESTOPPEL[140.098].
27 State of Andhra Pradesh v Lavu Narendra Nath AIR 1971 SC 2560 [LNIND 1971 SC 120] [LNIND 1971 SC 120] [LNIND
1971 SC 120], State of Andhra Pradesh v Lavu Narendra Nath (1971) 1 SCC 607 [LNIND 1971 SC 120] [LNIND 1971 SC 120]
[LNIND 1971 SC 120], State of Andhra Pradesh v Lavu Narendra Nath [1971] 3 SCR 699 [LNIND 1971 SC 120] [LNIND 1971
SC 120] [LNIND 1971 SC 120] (where there was no legislation covering the relevant field, the government will undoubtedly be
competent to prescribe a test to screen the best candidates); State of Sikkim v Dorjee Tshering Bhutia AIR 1991 SC 1933
[LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC 392], State of Sikkim v Dorjee Tshering Bhutia (1991) 4 SCC 243
[LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC 392], State of Sikkim v Dorjee Tshering Bhutia [1991] 3 SCR 633
[LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC 392] (when no service rules exist or the existing rules are
inoperable for some reason, the government may act in the exercise of its executive power and make appointments). See
Union of India v Anglo-Afghan Agencies Ltd AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC
334]; Amrat Lal Ramanlal v State of Gujarat AIR 1972 Guj 260.
28 P Tulsi Das v Government of Andhra Pradesh (2003) 1 SCC 364 [LNIND 2007 SC 934] [LNIND 2007 SC 934] [LNIND 2007
SC 934] (rights acquired by the employees over a period of twenty years even though under directions could not be brushed
aside at the sweet-will and pleasure of the government); Baleshwar Dass v State of Uttar Pradesh AIR 1981 SC 41 [LNIND
1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334], Baleshwar Dass v State of Uttar Pradesh (1980) 4 SCC 226
[LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334], Baleshwar Dass v State of Uttar Pradesh (1981) 1 LLJ 140
[LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334] (an office memorandum regulating seniority in certain
government posts was held binding as the government had been following the same for nearly two decades).

ADMINISTRATIVE LAW/6. DIRECTIONS/(3) ENFORCEABILITY/[005.048] Directions to quasi-judicial and
87 87
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statutory bodies
[005.048] Directions to quasi-judicial and statutory bodies In order to safeguard and protect the
impartiality, independence and objectivity of quasi-judicial bodies1, directions may not be issued to such
bodies, as these directions would interfere with the independent exercise of judgement in discharging the
functions entrusted to them under the statute2. The exercise of judicial power or discretion3 must be
regulated only by law and rules and not by administrative directions4.
A circular issued by the government clarifying a statutory provision or a taxing provision5 has no binding
force on quasi-judicial authorities6.
1 As to the meaning of 'quasi-judicial' see [005.053].
B Rajgopala Naidu v State Transport Appellate Tribunal, Madras AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC 29]
[LNIND 1964 SC 29], B Rajgopala Naidu v State Transport Appellate Tribunal, Madras [1964] 7 SCR 1 [LNIND 1964 SC 29]
[LNIND 1964 SC 29] [LNIND 1964 SC 29], B Rajgopala Naidu v State Transport Appellate Tribunal, Madras (1964) 2 SCJ 570
[LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29] (quasi-judicial bodies must be left unfettered by any extraneous
guidance by the executive. This is essential to fundamentals of fair play in the administration of law); Sirpur Paper Mills Ltd v
Commissioner of Wealth Tax, Hyderabad AIR 1970 SC 1520 [LNIND 1970 SC 216] [LNIND 1970 SC 216] [LNIND 1970 SC
216], Sirpur Paper Mills Ltd v Commissioner of Wealth Tax, Hyderabad (1970) 1 SCC 795 [LNIND 1970 SC 216] [LNIND 1970
SC 216] [LNIND 1970 SC 216], Sirpur Paper Mills Ltd v Commissioner of Wealth Tax, Hyderabad [1971] 1 SCR 304 [LNIND
See also Ravi Roadways v Asia Bi AIR 1970 SC 1241; Inter State Transport Commission, New Delhi v P Manjunath Kamath
AIR 1972 SC 2250 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972 SC 341], Inter State Transport Commission, New
Delhi v P Manjunath Kamath (1973) 3 SCC 733 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972 SC 341], Inter State
Transport Commission, New Delhi v P Manjunath Kamath [1973] 1 SCR 765 [LNIND 1972 SC 341] [LNIND 1972 SC 341]
[LNIND 1972 SC 341]; Chamkaur Singh v State of Punjab AIR 1991 P & H 26, Chamkaur Singh v State of Punjab (1991) Punj
LJ 249; Co-operative Central Bank Ltd v Industrial Tribunal, Hyderabad AIR 1970 SC 245 [LNIND 1969 SC 152] [LNIND 1969
SC 152] [LNIND 1969 SC 152], Co-operative Central Bank Ltd v Industrial Tribunal, Hyderabad (1969) 2 SCC 43 [LNIND 1969
SC 152] [LNIND 1969 SC 152] [LNIND 1969 SC 152], Co-operative Central Bank Ltd v Industrial Tribunal, Hyderabad [1970] 1
3 As to discretionary powers see [005.182] and following. See also [005.092].
4 Income Tax Act 1961 s 119 provides that no instructions may be given by the Central Board of Direct Taxes to the appellate
commissioner in the exercise of his appellate functions. The Income Tax Appellate Tribunal is also exempt from the instructions
issued by the board.
5 As to taxing provisions see generally [280]TAXATION AND REVENUE.
6 Bengal Iron Corporation v Commercial Tax Officer AIR 1993 SC 2414 [LNIND 1993 SC 401] [LNIND 1993 SC 401] [LNIND
1993 SC 401](a quasi-judicial authority is only bound by law and not by administrative directions or clarifications of the law. So
far as clarifications or circulars issued by the government are concerned, they represent the government's understanding of
statutory provisions).

ADMINISTRATIVE LAW/6. DIRECTIONS/(4) PUBLICATION/[005.049] Publication of directions
[005.049] Publication of directions There exists no legal provision requiring publication of directions.
Directions may, therefore, be issued confidentially or in the form of secret communications to the concerned
authorities, and individuals may thereby be affected without their knowledge1. Further, when rules are not
published2 in the gazette, they may be treated as directions3.
Income tax circulars are now published in the Direct Taxes Bulletin which has significantly benefited
88 88
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tax-payers4.
1 Balbir Sing v State of Punjab AIR 1975 P & H 83, Balbir Sing v State of Punjab (1975) 1 Serv LR 241 (it is not necessary that
instructions be published in the gazette. The instructions constitute 'rule of guidance' and remain in force so long as the policy is
not changed) see contra K S Nair v Oil and Natural Gas Commission (1974) 15 Guj LR 7(executive instructions providing for
reservations of posts under the Constitution of India art 16(1) have to be published).
2 As to publication of rules see [005.037].
3 V Balasubramanian v Tamil Nadu Housing Board AIR 1988 SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987
SC 661]; State of Uttar Pradesh v Kishori Lal AIR 1980 SC 680 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC
500], State of Uttar Pradesh v Kishori Lal (1980) 3 SCC 8 [LNIND 1979 SC 500] [LNIND 1979 SC 500] [LNIND 1979 SC 500],
State of Uttar Pradesh v Kishori Lal [1980] 2 SCR 724. As to 'open government' see [005.357].
4 The Direct Taxes Bulletin is a quarterly publication issued by the Directorate of Inspection, Government of India, New Delhi
which publishes income tax circulars.

ADMINISTRATIVE LAW/6. DIRECTIONS/(5) LIMITATIONS/[005.050] Shortcomings
[005.050] Shortcomings The following are the weaknesses of the system of directions from the
administration's perspective:
(1) any constitutional, fundamental or legal right of an individual may not be curtailed through
directions. A benefit conferred upon an individual by a statutory provision cannot be diluted by
a direction;
(2) directions may be used to control the discretion of quasi-judicial bodies1;
(3) directions may interfere with the exercise of discretion conferred upon an authority through law
only to a limited extent;
(4) the validity of a law conferring wide discretion upon administrative authorities may be
considered only by taking into account, provisions having statutory force, and not directions2.
The following are the weaknesses of the system of directions from the individual's perspective:
(a) it is difficult for an individual to perceive whether a provision constitutes a rule or a direction;
(b) as directions are by and large unenforceable, the affected individuals may not be able to
demand the enforcement of any benefits, privileges and concessions conferred upon them or
any obligations imposed upon the administration;
(c) whether a particular direction will be held enforceable by the court or not is indefinite3.
1 As to discretion of adjudicators see [005.160].
2 For a discussion on art 19 of the Constitution see [005.006].
3 As to enforceability of directions see [005.047].

ADMINISTRATIVE LAW/7. NATURAL JUSTICE/[005.051] Introduction
89 89
Page
[005.051] Introduction Before 1963, in Britain, the judicial attitude was very restrictive as regards the
applicability of natural justice to administrative proceedings1. The need to make the administration follow
some procedural due process in its functioning manifested into a liberal judicial trend which completely
transformed the judicial thinking and widened the area within which the principles of natural justice2 were
applicable3.
The advantage of the new judicial approach was that procedural fairness could be imposed on a large
number of decision-making bodies without having to characterise their functions as quasi-judicial4. The
courts now take the position that whether a body discharges a 'quasi-judicial'5 or 'administrative' function, in
every situation it must act with fairness6.
The next development has been to apply natural justice to administrative orders7. As a result, hearing8 is
now made applicable in a variety of administrative proceedings without charactering the function being
discharged as administrative or quasi-judicial9.
1 R v Metropolitan Police Commissioner (1953) 1 WLR 1150 (natural justice was denied to a cab driver whose licence was
cancelled on grounds of misconduct); Nakkuda Ali v MF De S Jayaratne [1951] AC 66, Nakkuda Ali v MF De S Jayaratne 94
Sol Jo 516, Nakkuda Ali v MF De S Jayaratne 66 (pt 2) TLR 214, PC (cancellation of a cloth dealer's licence without giving him
a hearing was upheld by the Privy Council saying that a licence was a privilege and not a right and no hearing need be given
when a privilege, and not a right, was withdrawn). As to evolution of administrative law see [005.002] and following.
2 As to the principles of natural justice see [005.054] and following.
3 Ridge v Baldwin [1964] AC 40, Ridge v Baldwin [1963] 2 All ER 66, Ridge v Baldwin [1963] 2 WLR 935 (the duty to act
judicially merely flowed from the nature of the rights of the individual. Whether in a particular case, audi alteram partem rule was
to be applied or not depended upon the nature of the duty, or the power conferred). Maradana Mosque Board of Trustees v
Mahmud [1967] 1 AC 13, Maradana Mosque Board of Trustees v Mahmud [1966] 1 All ER 545, Maradana Mosque Board of
Trustees v Mahmud [1966] 2 WLR 921, PC; Malloch v Aberdeen Corpn [1971] 2 All ER 1278, Malloch v Aberdeen Corpn
[1971] 1 WLR 1578, Malloch v Aberdeen Corpn 115 Sol Jo 756, HL (natural justice was held applicable to dismissal of an
employee by a public authority even though the concerned authority was not bound to give any reason for its action).
4 HK (infant) In Re [1967] 2 QB 617, HK (infant) In Re [1967] 2 WLR 962, HK (infant) In Re 111 Sol Jo 296, sub nom K (H)
(infant) In Re [1967] 1 All ER 226 (whether the function was regarded as 'quasi-judicial' or 'administrative', it must, nevertheless,
be discharged with fairness-fairness being used as a euphemism for natural justice).
6 Pergamon Press Ltd, In Re [1971] Ch 388, Pergamon Press Ltd, In Re [1970] 3 All ER 535, Pergamon Press Ltd, In Re
[1970] 3 WLR 792 CA,; R v Hull Prison Board of Visitors, exp St Germain (No 2) [1979] 3 All ER 545, R v Hull Prison Board of
Visitors, exp St Germain (No 2) [1979] 1 WLR 1401, R v Hull Prison Board of Visitors, exp St Germain (No 2) [1979] Crim LR
726. See also R v Liverpool Corpn, exp Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299, R v Liverpool Corpn, exp
Liverpool Taxi Fleet Operators' Association [1972] 2 WLR 1262, R v Liverpool Corpn, exp Liverpool Taxi Fleet Operators'
Association 71 LGR 387, sub nom Liverpool Taxi Owners' Association In Re [1972] 2 All ER 589 CA,; Maxwell v Department
of Trade and Industry [1974] QB 523, Maxwell v Department of Trade and Industry [1974] 2 All ER 122, Maxwell v Department
of Trade and Industry [1974] 2 WLR 338 CA,.
The courts in India have also felt the need to give a hearing to the affected persons in as many situations as possible:
Mohinder Singh Gill v Chief Election Comr, New Delhi AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND
1977 SC 332], Mohinder Singh Gill v Chief Election Comr, New Delhi (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC
332] [LNIND 1977 SC 332], Mohinder Singh Gill v Chief Election Comr, New Delhi [1978] 2 SCR 272 [LNIND 1977 SC 332]
[LNIND 1977 SC 332] [LNIND 1977 SC 332]; Swadeshi Cotton Mills v Union of India AIR 1981 SC 818 [LNIND 1981 SC 28]
[LNIND 1981 SC 28] [LNIND 1981 SC 28]at 832, Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664 [LNIND 1981 SC
28] [LNIND 1981 SC 28] [LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India [1981] 2 SCR 533 [LNIND 1981 SC 28]
[LNIND 1981 SC 28] [LNIND 1981 SC 28].
7 As to hearings see [005.058] and [005.059].
8 State of Orissa v Binapani Dei AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37], State of
Orissa v Binapani Dei [1967] 2 SCR 625 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37], State of Orissa v
Binapani Dei (1967) 2 LLJ 266 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37] (even an administrative order
which involves civil consequences must be made consistently with the rules of natural justice).
9 A K Kraipak v Union of India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]at 154, A
K Kraipak v Union of India (1969) 2 SCC 262 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], A K Kraipak v
Union of India [1970] 1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197] (a candidate himself sat on
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the selection committee to select suitable persons to fill several government posts. The committee selected him along with
several others for these posts. The Supreme Court quashed the selections by applying the doctrine of bias which is an
important component of natural justice).
The distinction between quasi-judicial and administrative function must be discarded for the purposes of giving a hearing to the
affected party: see Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978
SC 25], Maneka Gandhi v Union of India (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25],
Maneka Gandhi v Union of India [1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]; Mohinder
Singh Gill v Chief Election Comr, New Delhi AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC
332], Mohinder Singh Gill v Chief Election Comr, New Delhi (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC 332]
[LNIND 1977 SC 332], Mohinder Singh Gill v Chief Election Comr, New Delhi [1978] 2 SCR 272 [LNIND 1977 SC 332] [LNIND
1977 SC 332] [LNIND 1977 SC 332]; SL Kapoor v Jagmohan AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391]
[LNIND 1980 SC 391], SL Kapoor v Jagmohan [1980] 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC
391], SL Kapoor v Jagmohan [1981] 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391].
See also State of Assam v Bharat Kala Bhandar Ltd AIR 1967 SC 1766 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND
1967 SC 123], State of Assam v Bharat Kala Bhandar Ltd [1967] 3 SCR 490 [LNIND 1967 SC 123] [LNIND 1967 SC 123]
[LNIND 1967 SC 123], State of Assam v Bharat Kala Bhandar Ltd (1968) 1 LLJ 25 [LNIND 1967 SC 124] [LNIND 1967 SC 124]
[LNIND 1967 SC 124]; Chandra Bhawan Boarding and Lodging, Bangalore v State of Mysore AIR 1970 SC 2042 [LNIND 1969
SC 368] [LNIND 1969 SC 368] [LNIND 1969 SC 368], Chandra Bhawan Boarding and Lodging, Bangalore v State of Mysore
[1970] 2 SCR 600 [LNIND 1969 SC 368] [LNIND 1969 SC 368] [LNIND 1969 SC 368]; Saraswati Industrial Syndicate Ltd v
Union of India AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], Saraswati Industrial
Syndicate Ltd v Union of India (1974) 2 SCC 630 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], Saraswati
Industrial Syndicate Ltd v Union of India [1975] 1 SCR 956 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257].

ADMINISTRATIVE LAW/7. NATURAL JUSTICE/[005.052] Important concepts
[005.052] Important concepts The principles of natural justice1 are a part of the legal and judicial
procedures2.
Natural justice comprises two concepts:
(1) right to fair hearing, that is, audi alteram partem3, and
(2) the rule against bias, that is, nemo debit esse judex in propriacausa4.
Natural justice is an important procedural safeguard against any discrimination, or arbitrary5, wrong or undue
use of administrative powers6. Every case has to be considered on its own merits in order to decide whether
in taking a particular action, the administration should give a hearing7 to the affected party.
2 Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant [2001] 3 LRI 406, Kumaon Mandal Vikas Nigam Ltd v Girja Shankar
Pant AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], Kumaon Mandal Vikas Nigam Ltd
v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] (it is a
fundamental requirement of law that the doctrine of natural justice be complied with); Rattan Lal Sharma v Managing
Committee, Dr Hari Ram (Co-education) Higher Secondary School AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC
471] [LNIND 1993 SC 471], Rattan Lal Sharma v Managing Committee, Dr Hari Ram (Co-education) Higher Secondary School
(1993) 4 SCC 10 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471], Rattan Lal Sharma v Managing
Committee, Dr Hari Ram (Co-education) Higher Secondary School (1993) 3 SCJ 148. See Union of India v Tulsiram Patel AIR
1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], Union of India v Tulsiram Patel (1985) 3
SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], Union of India v Tulsiram Patel [1985] Supp 2
SCR 131; Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25],
Maneka Gandhi v Union of India (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Maneka
Gandhi v Union of India [1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25].
5 As to the administrative discrimination and arbitrariness see [005.178]-[005.181].

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6 As to the meaning and nature of administrative powers see [005.172].
7 As to hearings see [005.058].

ADMINISTRATIVE LAW/7. NATURAL JUSTICE/[005.053] Meaning of 'quasi-judicial'
[005.053] Meaning of 'quasi-judicial' The term 'quasi-judicial' denotes that the proceeding in question is
similar to a judicial proceeding and the person whose interests may be prejudicially affected by the said
proceeding must have natural justice1. Generally, any person or body having legal authority to determine
questions affecting the rights of subjects and having the duty to act judicially acts in a quasi-judicial manner2.
In the absence of any explicit indication in a statute to act judicially, the courts make the necessary inference
from the cumulative effect of the nature of the right affected, the manner of the disposal provided, the
objective criterion to be adopted, the phraseology used, the nature of the power conferred, of the duty
imposed on the authority and the other indicia afforded by the statute3.
2 Province of Bombay v Khushaldas S Advani (decd) by LRS Govindram Khushaldas and Ramchand Khushaldas AIR 1950
SC 222 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32], Province of Bombay v Khushaldas S Advani (decd) by
LRS Govindram Khushaldas and Ramchand Khushaldas [1950] SCR 621 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND
1950 SC 32], Province of Bombay v Khushaldas S Advani (decd) by LRS Govindram Khushaldas and Ramchand Khushaldas
(1950) SCJ 451 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32] (when the law under which the authority is
making a decision, itself requires a judicial approach, the decision will be quasi-judicial); Radheshyam Khare v State of Madhya
Pradesh AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113], Radheshyam Khare v State of
Madhya Pradesh [1959] SCR 1440 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113], Radheshyam Khare v
State of Madhya Pradesh (1959) SCJ 6 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]. See also R v
Electricity Comrs, exp London Electricity Joint Committee Co (1920) Ltd [1924] 1 KB 171 at 205, R v Electricity Comrs, exp
London Electricity Joint Committee Co [1923] All ER Rep 150, R v Electricity Comrs, exp London Electricity Joint Committee Co
68 Sol Jo 188, CA.
3 Dwarka Nath v Income-Tax Officer, Special Circle, D Ward, Kanpur AIR 1966 SC 81 [LNIND 1965 SC 107] [LNIND 1965 SC
107] [LNIND 1965 SC 107]at 86, Dwarka Nath v Income-Tax Officer, Special Circle, D Ward, Kanpur [1965] 3 SCR 536 [LNIND
1965 SC 107] [LNIND 1965 SC 107] [LNIND 1965 SC 107], Dwarka Nath v Income-Tax Officer, Special Circle, D Ward, Kanpur
(1966) 1 SCJ 119.

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/A.
INTRODUCTION/[005.054] Audi alteram partem
[005.054] Audi alteram partem The audi alteram partem rule ensures that no one is condemned unheard. It
is the first principle of civilised jurisprudence that a person against whom any action is sought to be taken or
whose right or interest is being affected, be given a reasonable opportunity to defend himself.
Hearing means a fair hearing. This involves components, such as: (1) notice; (2) an opportunity to the
concerned party to present his case; and (3) legal representation. Not only do the norms of a fair hearing
vary from body to body but may also vary from case to case in relation to the same body.
The components of fair hearing are not fixed but are flexible and variable1 and their scope and applicability
differs from case to case, contracting into a brief, even post decisional opportunity or expanding into trial type
trappings2. However, natural justice is not an unruly horse3. The concept of natural justice is of variable
content and imposes variable procedural norms from case to case. Natural justice depends on the
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circumstances of the case, the nature of the inquiry, the rules under which the tribunal is acting, the subject
matter that is being dealt with and so forth4.
Whether the requirements of natural justice have been complied with or not is for the courts to decide, in the
context of the facts and circumstances of a particular case. The objective is to ensure a fair hearing to the
person whose rights are going to be affected. The courts are to be satisfied that the person against whom an
action has been taken has had a fair chance of presenting his side of the case before the concerned
authority and of persuading it that the grounds on which the action was proposed to be taken against him
were either non existent or, if they ever existed, they did not justify the action proposed.
A flexible formulation of fair hearing enables the courts to modulate the hearing procedure to suit the
practical needs of the specific body in question. Thus, procedure does not become a straight jacket and
administrative process is not unduly hampered5.
Adjudicatory bodies enjoy substantial freedom in ordering their hearing procedures subject, however, to the
over all condition that the party affected gets a reasonable opportunity of presenting his case. Thus, the
hearing procedure varies from tribunal to tribunal and from body to body. In some cases, more formal
procedures may be insisted upon than in other cases, as for example, in disciplinary proceedings6.
The statute, under which an adjudicatory body function, may itself lay down the procedure that such body is
required to follow. However, usually, statutes are either completely silent as to the procedure or may merely
ordain that the parties must be heard before an action is taken or may lay down some skeletal procedural
norms7. In such situations, courts imply norms of natural justice or fairness in the interstices of the statutory
provisions8. If the statutory provisions have gaps as regards the procedure to be followed, the same may
have to be supplemented by bringing in relevant norms of natural justice9.
1 Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]at 625.
See also Union of India v Tulsiram Patel AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC
219]at 1456.
2 R S Dass v Union of India AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694]; Russell v
Duke of Norfolk [1949] 1 All ER 109 at 118 CA, (the principles of natural justice cannot be put in a straight jacket; their
applicability depends upon the context and the facts and circumstances of each case).
3 Mohinder Singh Gill v The Chief Election Comr, New Delhi AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332]
[LNIND 1977 SC 332], Mohinder Singh Gill v The Chief Election Comr, New Delhi (1978) 1 SCC 405 [LNIND 1977 SC 332]
[LNIND 1977 SC 332] [LNIND 1977 SC 332], Mohinder Singh Gill v The Chief Election Comr, New Delhi [1978] 2 SCR 272
4 The Chairman, Board of Mining Examination and Chief Inspector of Mines v Ramjee AIR 1977 SC 965 [LNIND 1977 SC 67]
[LNIND 1977 SC 67] [LNIND 1977 SC 67], The Chairman, Board of Mining Examination and Chief Inspector of Mines v Ramjee
(1977) 2 SCC 256 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67], The Chairman, Board of Mining Examination
and Chief Inspector of Mines v Ramjee [1977] 2 SCR 904 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67]; Shiv
Sagar Tiwari v Union of India AIR 1997 SC 2725 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873], 2736,
Shiv Sagar Tiwari v Union of India (1997) 2 Scale (SP) 2; Sunil Kumar Banerjee v State of West Bengal AIR 1980 SC 1170
[LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136], Sunil Kumar Banerjee v State of West Bengal (1980) 3
SCC 304 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136], Sunil Kumar Banerjee v State of West Bengal
(1980) 2 SCJ 332 [LNIND 1980 SC 96] [LNIND 1980 SC 96] [LNIND 1980 SC 96].
5 Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]
[LNIND 2000 SC 1362], Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362]
[LNIND 2000 SC 1362] [LNIND 2000 SC 1362], Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant (2000) 4 SCJ 529; K L
Tripathi v State Bank of India AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], K L Tripathi
v State Bank of India (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], K L Tripathi v State
Bank of India (1984) 1 SCWR 150 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]; AK Kraipak v Union of
India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], AK Kraipak v Union of India (1970)
1 SCJ 381, AK Kraipak v Union of India [1970] 1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197]:
The aim of the rules of natural justice is to secure justice or to put it negatively to prevent miscarriage of justice. These rules can
operate only in areas not covered by any law validly made. In other words they do not supplant the law of the land but
supplement it. Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC
25]at 625: The rules of natural justice are not embodied rules. What particular rule of natural justice must apply to a given case
must depend to a great extent on the facts and circumstances of that case, the framework of the law under which the inquiry is
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held and the constitution of the tribunal or body of persons appointed for that purpose. Mineral Development Ltd v State of
Bihar AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224], Mineral Development Ltd v State of
Bihar (1960) SCJ 643, Mineral Development Ltd v State of Bihar [1960] 2 SCR 627 [LNIND 1959 SC 228] [LNIND 1959 SC 228]
[LNIND 1959 SC 228] (the concept of fair hearing is an elastic one and is not susceptible to easy and precise definition).
See also State Bank of Patiala v S K Sharma AIR 1996 SC 1669 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996
SC 2680]at 1681, State Bank of Patiala v S K Sharma (1996) 3 SCC 364 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680]
[LNIND 1996 SC 2680], State Bank of Patiala v S K Sharma (1996) 3 JT 722; Ravi S Naik v Union of India AIR 1994 SC 1558,
1568, Ravi S Naik v Union of India (1994) Supp 2 SCC 641 Ravi S Naik v Union of India (1994) 2 SCJ 21; Fedco (Pvt) Ltd v
SN Bilgrami AIR 1960 SC 415 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219], Fedco (Pvt) Ltd v SN
Bilgrami (1960) SCJ 235 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219], Fedco (Pvt) Ltd v SN Bilgrami
[1960] 2 SCR 408 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219]; Payne v Lord Harris of Greenwich
[1981] 2 All ER 842 at 844-845, Payne v Lord Harris of Greenwich [1981] 1 WLR 754 at 757, CA; Lloyd v Mcmahon [1987] AC
625 at 703, Lloyd v Mcmahon [1987] 1 All ER 1118 at 1161 HL,.
6 See the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW). See The Chairman, Board of Mining
Examination and Chief Inspector of Mines v Ramjee AIR 1977 SC 965 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977
SC 67], The Chairman, Board of Mining Examination and Chief Inspector of Mines v Ramjee (1977) 2 SCC 256 [LNIND 1977
SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67], The Chairman, Board of Mining Examination and Chief Inspector of Mines v
Ramjee [1977] 2 SCR 904 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67]; Union of India v TR Varma AIR
1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of India v TR Varma (1958) SCJ 142,
Union of India v TR Varma (1958) All LJ 126: In case of a domestic inquiry by the employer against his employees in labour
matters, the Supreme Court has imposed strict standards of hearing to eliminate the risk of victimisation, eg, the right of cross
examination of witnesses has been regarded as an essential ingredient of such inquiries; however, the same is not regarded as
essential in other situations.
7 A civil servant cannot be dismissed or removed or reduced in rank, except after an inquiry in which he has been informed of
the charges against him and given a reasonable opportunity of being heard in respect of those charges: Constitution Of Indiaart
311(2) (see generally CONSTITUTIONAL LAW[80]). The expression 'a reasonable opportunity of being heard' means
'according to the principles of natural justice'. This means that any inquiry against a civil servant is to be conducted according to
the principles of natural justice: see Laxmi Shankar Pandey v Union of India AIR 1991 SC 1070 [LNIND 1991 SC 163] [LNIND
1991 SC 163] [LNIND 1991 SC 163], Laxmi Shankar Pandey v Union of India (1991) 2 SCC 488 [LNIND 1991 SC 163] [LNIND
1991 SC 163] [LNIND 1991 SC 163], Laxmi Shankar Pandey v Union of India (1991) 2 JT 43. See also disciplinary proceedings
and natural justice [005.117].
8 Laxmi Shankar Pandey v Union of India AIR 1991 SC 1070 [LNIND 1991 SC 163] [LNIND 1991 SC 163] [LNIND 1991 SC
163], Laxmi Shankar Pandey v Union of India (1991) 2 SCC 488 [LNIND 1991 SC 163] [LNIND 1991 SC 163] [LNIND 1991 SC
163], Laxmi Shankar Pandey v Union of India (1991) 2 JT 43.
9 The principles of natural justice must be read into the unoccupied interstices of the statute, unless there is a clear mandate to
the contrary: Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC
394] [LNIND 1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1987) 4 SCC 537 [LNIND 1987 SC 680]
[LNIND 1987 SC 680] [LNIND 1987 SC 680], Institute of Chartered Accountants of India v L K Ratna (1986) JT 671 (the reason
for such a judicial stand is that a statute cannot provide for all minor details as to how a hearing is to be conducted under it and,
hence the decision maker needs to fall back upon the concept of natural justice to fill in the gaps in the statutory procedure).
See also Syndicate Bank v General Secretary, Syndicate Bank Staff Association (2000) 5 SCC 65 [LNIND 2000 SC 715]
[LNIND 2000 SC 715] [LNIND 2000 SC 715] (certified standing orders made by a company to regulate labour relations have
statutory force; principles of natural justice and duty to act in a just, fair and reasonable manner must hence be read in the
standing orders); Uptron India Ltd v Shammi Bhan (1998) 6 SCC 38; Hindustan Paper Corporation v Purnendu Chakrabarty
(1996) 11 SCC 404 [LNIND 1996 SC 2879] [LNIND 1996 SC 2879] [LNIND 1996 SC 2879]; Dewan Singh v State of Haryana
AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227], Dewan Singh v State of Haryana (1977)
1 SCC 46 [LNIND 1976 SC 512] [LNIND 1976 SC 512] [LNIND 1976 SC 512], Dewan Singh v State of Haryana (1976) 2
SCWR 89 (a statutory provision authorised a tribunal to inquire into the conduct of any servant of a Panchayat and after making
such inquiry as it may deem fit, pass orders imposing a punishment; the principles of natural justice were found to be ingrained
in the statutory provisions in question and, therefore, it was presumed that the employee must have been given a full, fair and
reasonable opportunity to meet the charges against him).

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/B.
NOTICE/[005.055] Generally
[005.055] Generally A notice is the first and an extremely important step in the hearing procedure. Any
proceeding taken without notice violates natural justice and is thus, invalid. The right to a hearing becomes
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illusory if the party has no knowledge of the allegations that he has to meet. Thus, notice is regarded as the
minimum obligatory condition. It is the sine quo non of a fair hearing1.
For a notice to be valid and effective, it must be properly served on the concerned person. It must give
sufficient time to enable the individual to prepare his case2. Thus, to give one days time to show cause
against the proposed action to a person who is out of station3 or to call upon a delinquent employee to show
cause immediately and to permit him no time to consider the report against him, amounts to a denial of
notice4. It will depend upon the facts of each case whether the individual was allowed sufficient time to make
representation against the notice issued to him5.
To be effective the notice must be adequate as regards the details of the case so that the concerned person
gets an adequate opportunity to represent against the proposed action.
To be valid, a notice has to fulfil the following two attributes:
(1) it must be adequate; and

(2) it must fully mention all the grounds on which the action is proposed to be taken against the
concerned person6.
It is for the courts to decide whether the notice can be regarded as adequate or not7. There is no invariable
standard as to the adequacy of notice and it may vary from case to case depending upon the factual
situation of each case. The test is whether the individual has been prejudiced in presenting his case. The
court's conscience must be satisfied that the individual had a fair chance to know the details of the action
proposed to be taken against him. Court may quash an inadequate notice or quash the decision that is
arrived at on the basis of an inadequate notice8.
A notice, in bare bone language of the statute that is, which merely repeats the statutory language without
giving any facts and other particulars, is insufficient and inadequate9. If these conditions are not satisfied, the
person cannot be said to have a reasonable opportunity of being heard. This amounts to a violation of
natural justice. Such a notice is no notice and any consequential proceedings based on a notice of this sort
would be vitiated10.
A notice would be vague if:
(a) the charge sheet served on an employee against whom disciplinary action is proposed to be
taken contains allegations of fraud without mentioning the particulars of fraud11; or
(b) the notice does not mention the date, time and location of the incident12; or
(c) the notice mentions the charges without mentioning the action proposed to be taken13; or
(d) the notice does not mention the grounds on which action is proposed to be taken14; or
(e) the notice mentions one ground but the action is taken on some other ground15; or
(f) the action is taken on additional grounds, not mentioned in the notice16; or
(g) if the notice mentions several grounds without specifying the particular ground for the
proposed adverse action against an indvidual17.
Service of notice is mandatory. The court may quash proceedings if no notice or inadequate notice is
served18. Denial of such notice cannot be justified on the ground that the knowledge of the matter in dispute
was imputable to the concerned person19 or that he filed a representation suo motu and therefore, he was
not prejudiced by the absence of notice to him20.
It is necessary that all the grounds on which action is proposed to be taken must be communicated to the
person concerned. If it transpires that action was actually taken on a ground that had not been
communicated to him earlier, then the action will be invalid21.
1 East India Commercial Co Ltd, Calcutta v Collector of Customs, Calcutta AIR 1962 SC 1893 [LNIND 1962 SC 228] [LNIND
1962 SC 228] [LNIND 1962 SC 228]; State of Andhra Pradesh v Nagam Chaandrasekhara Lingam AIR 1988 SC 1309; Olga
Tellis v Bombay Municipal Corp AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215], Olga
95 95
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Tellis v Bombay Municipal Corp (1985) 3 SCC 545 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215], Olga
Tellis v Bombay Municipal Corp (1986) Cr LR (SC) 23; Chintapalli Agency Taluk, Arrack Sales Co op Society Ltd v Secretary
(Food and Agriculture) Govt of Andhra Pradesh AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977
SC 275], Chintapalli Agency Taluk, Arrack Sales Co op Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh
(1977) 4 SCC 337 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275], Chintapalli Agency Taluk, Arrack Sales
Co op Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh (1977) UJ 651; Prem Bus Service Pvt Ltd,
Barnala v Regional Transport Authority, Patiala AIR 1968 Punj 344, Prem Bus Service Pvt Ltd, Barnala v Regional Transport
Authority, Patiala (1968) 70 Punj LR 613; M Chockalingam v Comr of Income Tax, Madras AIR 1963 SC 1456 [LNIND 1962 SC
334] [LNIND 1962 SC 334] [LNIND 1962 SC 334]; Inayat Ullah v Custodian Evacuee Property AIR 1958 SC 160 [LNIND 1957
SC 147] [LNIND 1957 SC 147] [LNIND 1957 SC 147], Inayat Ullah v Custodian Evacuee Property (1958) SCJ 427, Inayat Ullah
v Custodian Evacuee Property [1958] SCR 816.
2 Sudhir Rajan, Halder v State of West Bengal AIR 1961 Cal 626 [LNIND 1961 CAL 46] [LNIND 1961 CAL 46] [LNIND 1961
CAL 46], Sudhir Rajan, Halder v State of West Bengal (1961) 65 Cal WN 607, Sudhir Rajan, Halder v State of West Bengal
(1961) 2 Lab LJ 283 [LNIND 1961 CAL 46] [LNIND 1961 CAL 46] [LNIND 1961 CAL 46]; K Sathyashankara Shetty v
Mangalore University, Mangalore AIR 1992 Kant 79 [LNIND 1990 KANT 125] [LNIND 1990 KANT 125] [LNIND 1990 KANT
125], K Sathyashankara Shetty v Mangalore University, Mangalore (1990) ILR Kant 1064, K Sathyashankara Shetty v
Mangalore University, Mangalore (1990) 1 Kant LJ 317.
3 Public Prosecutor v K P Chandrasekharan (1957) 8 STC 6 (Mad).
4 Bua Das Koushal v State of Punjab AIR 1965 Punj 341, Bua Das Koushal v State of Punjab (1965) Cur LJ 104.
5 Satish Chandra Khandelwal v Union of India AIR 1983 Del 1, Satish Chandra Khandelwal v Union of India (1981) ILR 1 Del
917 (the Government of India gave a seven days' notice to the Delhi Municipal Corporation for superseding the corporation on a
number of grounds; the government turned down the request of the corporation for extension of time by ten days to reply to the
charges).
6 Nasir Ahmed v Assistant Custodian General, Evacuee Property, Uttar Pradesh, Lucknow AIR 1980 SC 1157 [LNIND 1980
SC 149] [LNIND 1980 SC 149] [LNIND 1980 SC 149], Nasir Ahmed v Assistant Custodian General, Evacuee Property, Uttar
Pradesh, Lucknow (1980) 1 SCJ 546, Nasir Ahmed v Assistant Custodian General, Evacuee Property, Uttar Pradesh, Lucknow
(1980) All LJ 546 (the notice mentioned only one ground for declaring the appellant as an evacuee whereas he was declared an
evacuee not only on that ground but on two more grounds, of which no mention was made in the notice; this was held to be a
bad notice; such a notice could not provide a foundation for the proceedings which followed). See also North Bihar Agency v
State of Bihar AIR 1981 SC 1758, North Bihar Agency v State of Bihar (1981) 3 SCC 131, North Bihar Agency v State of Bihar
(1981) SCC (Cr) 651.
7 Joseph Vilangan v Executive Engineer AIR 1978 SC 930 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108],
Joseph Vilangan v Executive Engineer (1978) 3 SCC 56, Joseph Vilangan v Executive Engineer [1978] 3 SCR 514 [LNIND
1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108] (the Supreme Court found the notice to be inadequate as it did not
contain words to indicate clearly to the contractor that it was proposed to debar him from taking any contract in future under the
department).
8 Fedco (Pvt) Ltd v SN Bilgrami AIR 1960 SC 415 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219], Fedco
(Pvt) Ltd v SN Bilgrami [1960] 2 SCR 408 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219], Fedco (Pvt) Ltd v
SN Bilgrami (1960) SCJ 235 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219]; Ambika Devi v State of Bihar
AIR 1988 Pat 258, Ambika Devi v State of Bihar (1987) BLT (Rep)334.
(1980) All LJ 546.
10 Charandas Malhotra v Asst Collector of Customs AIR 1968 Cal 28 [LNIND 1967 CAL 66] [LNIND 1967 CAL 66] [LNIND
1967 CAL 66], Charandas Malhotra v Asst Collector of Customs (1968) Cr LJ 33; Board of Technical Education, Uttar Pradesh
v Dhanwantri Kumar AIR 1991 SC 271 [LNIND 1990 SC 626] [LNIND 1990 SC 626] [LNIND 1990 SC 626], Board of Technical
Education, Uttar Pradesh v Dhanwantri Kumar (1990) All LJ 874; B D Gupta v State of Haryana AIR 1972 SC 2472 [LNIND
1972 SC 441] [LNIND 1972 SC 441] [LNIND 1972 SC 441], B D Gupta v State of Haryana (1972) Lab IC 1613, B D Gupta v
State of Haryana (1972) Serv LR 845.
11 State of Uttar Pradesh v Salig Ram Sharma AIR 1960 All 543 [LNIND 1960 ALL 46] [LNIND 1960 ALL 46] [LNIND 1960 ALL
46]; MA Kamath v Karnataka State Financial Corpn AIR 1981 Kant 193, MA Kamath v Karnataka State Financial Corpn (1981)
2 Kant LJ 129; Lakshmi Narain Gupta v A N Puri AIR 1954 Cal 335 [LNIND 1953 CAL 29] [LNIND 1953 CAL 29] [LNIND 1953
CAL 29].
12 State of Uttar Pradesh v Mohd Sharif AIR 1982 SC 937 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13],
State of Uttar Pradesh v Mohd Sharif (1982) 2 SCC 376 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13], State
of Uttar Pradesh v Mohd Sharif (1982) Lab IC 1234 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13].
13 Abdul Latif Nomani v Comr, Gorakhpur AIR 1968 All 44 [LNIND 1966 ALL 85] [LNIND 1966 ALL 85] [LNIND 1966 ALL 85],
Abdul Latif Nomani v Comr, Gorakhpur (1967) ILR 1 All 568, Abdul Latif Nomani v Comr, Gorakhpur (1967) All LJ 431.
96 96
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14 North Bihar Agency v State of Bihar AIR 1981 SC 1758, North Bihar Agency v State of Bihar (1981) 3 SCC 131, North Bihar
Agency v State of Bihar (1981) SCC (Cr) 651; S Subba Rao v Puti Veeraraghavaaiah AIR 1976) AP 309 [LNIND 1975 AP 217]
[LNIND 1975 AP 217] [LNIND 1975 AP 217], S Subba Rao v Puti Veeraraghavaaiah (1975) 2 Andh WR 41, S Subba Rao v Puti
Veeraraghavaaiah (1976) Andh LT 110.
15 Joseph Vilangan v Executive Engineer AIR 1978 SC 930 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC
108], Joseph Vilangan v Executive Engineer (1978) 3 SCC 56, Joseph Vilangan v Executive Engineer [1978] 3 SCR 514
(1980) All LJ 546.
17 Sinha Govindji v Deputy Chief Controller of Exports and Imports (1962) I SCJ 93, Sinha Govindji v Deputy Chief Controller
of Exports and Imports [1962] 1 SCR 540 [LNIND 1961 SC 542] [LNIND 1961 SC 542] [LNIND 1961 SC 542].
18 Joseph Vilangan v Executive Engineer AIR 1978 SC 930 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC
108], Joseph Vilangan v Executive Engineer (1978) 3 SCC 56, Joseph Vilangan v Executive Engineer [1978] 3 SCR 514
[LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108] (when the executive engineer proposed to blacklist a
contractor, he gave a notice to him; however, the Supreme Court found the notice to be inadequate as it did not contain words
to indicate clearly to the contractor that it was proposed to debar him from taking any contract in future under the department).
See also New Sumandri Transport Co Ltd v State of Punjab AIR 1976 SC 57 [LNIND 1975 SC 401] [LNIND 1975 SC 401]
[LNIND 1975 SC 401], New Sumandri Transport Co Ltd v State of Punjab (1976) 1 SCC 757 [LNIND 1975 SC 401] [LNIND
1975 SC 401] [LNIND 1975 SC 401], New Sumandri Transport Co Ltd v State of Punjab (1976) 2 SCR 218 [LNIND 1975 SC
401] [LNIND 1975 SC 401] [LNIND 1975 SC 401]; An Advocate In Re AIR 1989 SC 245; Liberty Oil Mills v Union of India AIR
1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381].
19 The normal rule is that notice is a must to hold a fair hearing. However, there are cases where the Supreme Court has
upheld the proceedings even without a notice on the ground that no prejudice was caused to the person concerned or that the
notice could not be served on him because of his fault: Fazal Bhai v Custodian General AIR 1961 SC 284 [LNIND 1960 SC
210] [LNIND 1960 SC 210] [LNIND 1960 SC 210]. There may be an exceptional situation when the court may give countenance
to the authority proceeding with the matter though the notice was not served on the person concerned through his own fault:
UP Singh v Board of Governors, Maulana Azad College of Technology, Bhopal AIR 1982 MP 59 [LNIND 1981 MP 81] [LNIND
1981 MP 81] [LNIND 1981 MP 81], UP Singh v Board of Governors, Maulana Azad College of Technology, Bhopal (1982) MP
LJ 75, UP Singh v Board of Governors, Maulana Azad College of Technology, Bhopal (1982) Jab LJ 653 (some students were
guilty of gross violence against other students which called for immediate action as it created tension in the area; in spite of the
authority trying to serve notice on the students in question, it could not be served on them because they had absconded; the
action of the authority against the students was upheld as the students were themselves at fault). Also see Commissioner of
Sales Tax v Subhash & Co (2003) 3 SCC 454 [LNIND 2003 SC 209] [LNIND 2003 SC 209] [LNIND 2003 SC 209].
20 The Chairman, Board of Mining Examinationand Chief Inspector of Mines v Ramjee AIR 1977 SC 965 [LNIND 1977 SC 67]
[LNIND 1977 SC 67] [LNIND 1977 SC 67], The Chairman, Board of Mining Examinationand Chief Inspector of Mines v Ramjee
(1977) 2 SCC 256 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977 SC 67], The Chairman, Board of Mining
Examinationand Chief Inspector of Mines v Ramjee [1977] 2 SCR 904 [LNIND 1977 SC 67] [LNIND 1977 SC 67] [LNIND 1977
SC 67].
21 Mardana Mosque Trustee v Badi ud din Mahmud [1967] 1 AC 13; Fairmount Investments v Secretary of State for the
Environment [1976] 2 All ER 865. In a disciplinary proceeding against an advocate, he was not apprised of the exact content of
the professional misconduct attributed to him and he was not made aware of the precise charge he was required to rebut. The
Supreme Court ruled that he was not afforded a reasonable and fair opportunity of being heard: An Advocate In Re AIR 1989
SC 245. See also Nasir Ahmed v Assistant Custodian General, Evacuee Property, Uttar Pradesh, Lucknow AIR 1980 SC 1157
[LNIND 1980 SC 149] [LNIND 1980 SC 149] [LNIND 1980 SC 149], Nasir Ahmed v Assistant Custodian General, Evacuee
Property, Uttar Pradesh, Lucknow (1980) 1 SCJ 546, Nasir Ahmed v Assistant Custodian General, Evacuee Property, Uttar
Pradesh, Lucknow (1980) All LJ 546.

NOTICE/[005.056] Statutory notice
[005.056] Statutory notice A statute may specifically prescribe a notice as a pre condition to any action
being taken under it. Where a statutory provision expressly imposes the requirement of notice, the issue of
notice is regarded as mandatory1. Principles of natural justice2 may apply to such a notice as well, for
example, a statutory notice has to be adequate and not vague or ambiguous3.
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Statutory provisions may prescribe the form in which the notice is to be issued to the affected party.
Ordinarily, this form has to be complied with by the authority concerned4. However, as the purpose of giving
a notice is to furnish an opportunity to the individual to present his case adequately, there may be factual
situations where some minor deficiencies or technical irregularity in the notice may be condoned by the
courts, for instance: (1) not scoring out unnecessary words from the printed notice5; or (2) when there was
no essential difference in the particulars mentioned in the notice issued from those prescribed by the rules
and no prejudice was caused to the party and the like6. Though a minor irregularity in the issue of notice
which does not prejudice an individual's case may not be violative of the statutory provision in question, a
substantial irregularity will7. Similarly, when a statute requires the issue of notice mentioning the date, time
and place of hearing and the notice does not mention the place of hearing, the proceedings may not be
invalidated, provided the party concerned is not a stranger to the place of office of the tribunal in question8.
When a statute prescribes a particular mode to serve a notice, the prescribed mode has to be followed. A
statutory rule prescribed the following modes of serving a notice:
(a) by delivering to him; or

(b) by sending it to him through registered post; or
(c) by affixing it on the outer door of the residence, if both the abovementioned modes fail. In the
absence of a notice, proceedings cannot be initiated against a person9.
In relation to statutory provisions requiring notice, courts make a distinction between a case where the
provisions is intended for individual benefit and where the provisions is intended to protect public interest. In
the former case, it may be waived while in the latter case, it must not be waived10.
1 Chintapalli Agency Taluk, Arrack Sales Co op Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh AIR
1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275], Chintapalli Agency Taluk, Arrack Sales Co
op Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh (1977) 4 SCC 337 [LNIND 1977 SC 275] [LNIND
1977 SC 275] [LNIND 1977 SC 275].
See also Jaswant Singh Mathurasingh v Ahmedabad Municipal Corpn AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991
SC 506] [LNIND 1991 SC 506](under the Uttar Pradesh Sales Tax Act, it is necessary for the assessing authority to issue a
notice to the dealer if it has reasons to believe that any turnover has escaped assessment and it wishes to reassess the dealer);
Gokak Patel Volkart Ltd v Collector, Central Excise, Belgaum AIR 1987 SC 1161 [LNIND 1987 SC 187] [LNIND 1987 SC 187]
[LNIND 1987 SC 187], Gokak Patel Volkart Ltd v Collector, Central Excise, Belgaum (1987) 2 SCC 93 [LNIND 1987 SC 187]
[LNIND 1987 SC 187] [LNIND 1987 SC 187], Gokak Patel Volkart Ltd v Collector, Central Excise, Belgaum (1987) 1 SCJ 521
[LNIND 1987 SC 187] [LNIND 1987 SC 187] [LNIND 1987 SC 187] (the Supreme Court quashed a demand for excise duty as
the same had been assessed without giving a notice to the assessee); M Chockalingam v Comr of Income Tax, Madras AIR
1963 SC 1456 [LNIND 1962 SC 334] [LNIND 1962 SC 334] [LNIND 1962 SC 334](under Central Excise and Salt Act 1944 s
11A, a notice needs to be given to the assessee before raising a demand of excise duty; the case shown by the assessee
against the demand must be considered by the authority concerned before assessing the amount); Laxmi Narain Anand
Parkash v Commissioner of Sales Tax (1980) 46 STC 71 (All) (the authority issued the notice, however, it was served on a
wrong person; the assessee, however, appeared before the authority on the date of hearing. it was held that the requirement of
notice must be strictly complied with; it is the notice which gave jurisdiction to the authority to reassess and if this notice was not
properly served on the assessee, the authority could not proceed to reassess him; the high court did not accept the contention
that the assessee was estopped from questioning the non issue of notice in view of his appearance before the authority; the
issue of notice is essential for the authority to assume jurisdiction and this requirement cannot be circumvented by invoking
equitable principles of estoppel and participation of the assessee).
2 As to principles of natural justice see [005.054].
(1980) All LJ 546.
A notice that neither states the reasons for/or the ground on which the amendment is proposed to be made nor does it indicate
any material on the basis of which the revision as stated in the notice is proposed to be made, is vague and lacks particulars.
Such a notice not only does not comply with the statutory requirements, it also defeats the very purpose of the statutory
provisions: Food Corpn of India v State of Punjab AIR 2001 SC 250 [LNIND 2000 SC 1719] [LNIND 2000 SC 1719] [LNIND
2000 SC 1719], at 254, Food Corpn of India v State of Punjab (2001) 1 SCC 291 [LNIND 2000 SC 1719] [LNIND 2000 SC
1719] [LNIND 2000 SC 1719], Food Corpn of India v State of Punjab (2001) 3 JT Supp 376; JMA Industries v Union of India
AIR 1980 Del 200 [LNIND 1980 DEL 24] [LNIND 1980 DEL 24] [LNIND 1980 DEL 24], JMA Industries v Union of India (1980)
98 98
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ILR 1 Del 339.
4 New Sumandri Transport Co Ltd v State of Punjab AIR 1976 SC 57 [LNIND 1975 SC 401] [LNIND 1975 SC 401] [LNIND
1975 SC 401], New Sumandri Transport Co Ltd v State of Punjab (1976) 1 SCC 757 [LNIND 1975 SC 401] [LNIND 1975 SC
401] [LNIND 1975 SC 401], New Sumandri Transport Co Ltd v State of Punjab [1976] 2 SCR 218 [LNIND 1975 SC 401] [LNIND
1975 SC 401] [LNIND 1975 SC 401] (charges must be made with reference to each permit in clear terms so as to enable the
permit holder to furnish his explanation).
5 State of Orissa v Chakobhai AIR 1961 SC 284 [LNIND 1960 SC 210] [LNIND 1960 SC 210] [LNIND 1960 SC 210].
6 Inayat Ullah v Custodian Evacuee Property AIR 1958 SC 160 [LNIND 1957 SC 147] [LNIND 1957 SC 147] [LNIND 1957 SC
147], Inayat Ullah v Custodian Evacuee Property (1958) SCJ 427, Inayat Ullah v Custodian Evacuee Property [1958] SCR 816.
7 Rajmani Devi v Comr of Income Tax AIR 1957 All 771 [LNIND 1957 ALL 137] [LNIND 1957 ALL 137] [LNIND 1957 ALL 137].
8 Ikram Khan v STA Tribunal AIR 1976 SC 2333 [LNIND 1976 SC 303] [LNIND 1976 SC 303] [LNIND 1976 SC 303], Ikram
Khan v STA Tribunal (1976) 4 SCC 1 [LNIND 1976 SC 303] [LNIND 1976 SC 303] [LNIND 1976 SC 303], Ikram Khan v STA
Tribunal (1976) 2 All LR 606 [LNIND 1976 SC 303] [LNIND 1976 SC 303] [LNIND 1976 SC 303].
9 KA Abdul Khader v Deputy Director of Enforcement, Information Directorate, Madras AIR 1976 Mad 233 [LNIND 1975 MAD
145] [LNIND 1975 MAD 145] [LNIND 1975 MAD 145], KA Abdul Khader v Deputy Director of Enforcement, Information
Directorate, Madras (1976) 2 Mad LJ 78, KA Abdul Khader v Deputy Director of Enforcement, Information Directorate, Madras
89 Mad LW 738 (a notice sent by registered post was returned undelivered and was not served again and in the absence of its
service, no proceedings could be initiated against him).
10 M C Mehta v Union of India (1999) 6 SCC 237 [LNIND 1999 SC 617] [LNIND 1999 SC 617] [LNIND 1999 SC 617]. See also
Rajendra Singh v State of Madhya Pradesh AIR 1996 SC 2736, Rajendra Singh v State of Madhya Pradesh (1996) 5 SCC 460,
Rajendra Singh v State of Madhya Pradesh (1996) 7 JT 216.

NOTICE/[005.057] Ex parte proceedings
[005.057] Ex parte proceedings If a show cause notice has been issued and the person concerned does
not respond to it, the adjudicatory proceedings against him may proceed ex parte, without causing any
violation of natural justice1. It would, however, be a violation of natural justice if the adjudicator refuses to
hear a person who does not appear at the first hearing and appears subsequently during the course of the
hearing2 or who does not appear in response to the first notice and appears when a second notice is given3.
When adequate and reasonable grounds for failure to appear at the hearing are made out, the authority must
restore the matter and hear the party even though it had decided the case ex parte. However, if no
reasonable or adequate grounds for failure to appear are mentioned, the authority is not bound to rehear4.
1 Roshan Lal Mehra v Ishwar Dass AIR 1962 SC 646 [LNIND 1961 SC 258] [LNIND 1961 SC 258] [LNIND 1961 SC 258],
Roshan Lal Mehra v Ishwar Dass [1962] 2 SCR 947 [LNIND 1961 SC 258] [LNIND 1961 SC 258] [LNIND 1961 SC 258];
Rajendra Singh v State of Madhya Pradesh AIR 1996 SC 2736, Rajendra Singh v State of Madhya Pradesh (1996) 5 SCC 460,
Rajendra Singh v State of Madhya Pradesh (1996) 7 JT 216; Accounting & Secretarial Services Pvt Ltd v Union of India AIR
1993 Cal 102 [LNIND 1993 CAL 66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66]; Jaswant Singh Mathurasingh v Ahmedabad
Municipal Corporations AIR 1991 SC 2130 [LNIND 1991 SC 506] [LNIND 1991 SC 506] [LNIND 1991 SC 506], Jaswant Singh
Mathurasingh v Ahmedabad Municipal Corporations (1992) Supp 1 SCC 5, Jaswant Singh Mathurasingh v Ahmedabad
Municipal Corporations [1991] Supp 1 SCR 226; Ram Chander v Union of India AIR 1986 SC 1175, Ram Chander v Union of
India (1986) 3 SCC 103 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169], Ram Chander v Union of India
[1986] 2 SCR 980 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169]; Shahoodul Haque v The Registrar, Co
op Societies, Bihar AIR 1974 SC 1896, Shahoodul Haque v The Registrar, Co op Societies, Bihar (1974) Lab IC 1276,
Shahoodul Haque v The Registrar, Co op Societies, Bihar (1974) 2 Serv LR 547; Jethmal v Union of India AIR 1970 SC 1310
(proceedings were initiated against the appellant under Sea Customs Act 1962 s 167(8) and Foreign Exchange Regulation Act
1973 s 19 (now FEMA 1999) of smuggling gold into India; a notice was given to him to show cause as to why the gold must not
be confiscated; the appellant sent no reply to the notice and after some time, the customs authorities adjudicated on the matter
on the basis of the materials before them, confiscated the gold and levied a penalty; the Supreme Court ruled that there was no
violation of natural justice and that if no reply was sent to the show cause notice, the authorities could proceed ex parte). As to
the meaning of ex parte decree see CIVIL PROCEDURE [65.334].
2 Sangram Singh v Election Tribunal, Kotah AIR 1955 SC 425 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2]: our
99 99
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laws of procedure are gounded on the principle of natural justice which requires that men must not be condemned unheard, that
decisions must not be reached behind their backs, that proceedings that affect their lives and property must not continue in their
absence and that they must not be precluded from participating in them and they must be construed, wherever that is
reasonably possible, in the light of that principle.
3 Abdul Rahiman Haji v Sales Tax Officer (1963) 14 STC 155 (Ker).
4 Jagdamba Prasad Shukla v State of Uttar Pradesh (2000) 7 SCC 90; Income Tax Officer, 'F' Ward v Murlidhar Sarda AIR
1974 Cal 272 [LNIND 1973 CAL 170] [LNIND 1973 CAL 170] [LNIND 1973 CAL 170](when a government servant was
suspended and he was not paid any subsistence allowance and consequently, he could not participate in disciplinary
proceedings against him, the Supreme Court quashed the proceedings, for denial of a reasonable opportunity to the appellant
to defend himself was considered a breach of natural justice).

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/C.
HEARING/[005.058] Generally
[005.058] Generally A decision must not be taken without first giving an affected party, a hearing according
to the principles of natural justice. This is to prevent the civil rights of a person from being affected1.
Hearings are of two main kinds, namely, judicial and administrative. Judicial hearings require the observance
of the principles of natural justice or fair hearing by the authorities and impose certain strict standards of
fairness, in the nature of court procedure. Hearings in the administrative process are less formal, which is
illustrated by the requirement of consultation of the affected interests while making rules.
The right of hearing may be claimed by individuals, affected by any administrative action, from:
(1) certain fundamental rights granted by the Constitution of India2; or

(2) the statute under which an administrative action is being taken, as it may itself expressly
impose the requirement of hearing3; or
(3) the requirement of procedural fairness imposed by courts upon the administration.
2 See generally [80]CONSTITUTIONAL LAW.
3 Chintapalli Agency Taluk Arrack Sales Cooperative Society Ltd v Secretary (Food and Agriculture), Government of Andhra
Pradesh AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275], Chintapalli Agency Taluk
Arrack Sales Cooperative Society Ltd v Secretary (Food and Agriculture), Government of Andhra Pradesh (1977) 4 SCC 337
[LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275], Chintapalli Agency Taluk Arrack Sales Cooperative Society
Ltd v Secretary (Food and Agriculture), Government of Andhra Pradesh [1978] 1 SCR 563 [LNIND 1977 SC 275] [LNIND 1977
SC 275] [LNIND 1977 SC 275] (generally, where a statute speaks of giving an opportunity of being heard or making a
representation to the affected party, it indicates that the authority is to observe the principles of natural justice); Dewan Singh v
State of Haryana AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227], Dewan Singh v State
of Haryana (1976) 3 SCC 638 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227], Dewan Singh v State of
Haryana [1976] Supp SCR 630; Keshav Mills Co Ltd v Union of India AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC
570] [LNIND 1972 SC 570], Keshav Mills Co Ltd v Union of India (1973) 1 SCC 380 [LNIND 1972 SC 570] [LNIND 1972 SC
570] [LNIND 1972 SC 570], Keshav Mills Co Ltd v Union of India [1973] 3 SCR 22 [LNIND 1972 SC 570] [LNIND 1972 SC 570]
[LNIND 1972 SC 570]; Sinha Govindji v Deputy Chief Controller of Imports and Exports [1962] 1 SCR 540 [LNIND 1961 SC
542] [LNIND 1961 SC 542] [LNIND 1961 SC 542], Sinha Govindji v Deputy Chief Controller of Imports and Exports (1962) 1
SCJ 93; Khem Chand v Union of India AIR 1958 SC 300 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138],
Khem Chand v Union of India [1958] SCR 1080 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138], Khem
Chand v Union of India (1958) SCJ 497 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138](for example, the
Constitution of India art 311 lays down that no civil servant will be dismissed or removed or reduced in rank, until he has been
given a reasonable opportunity of being heard in respect of those charges; proceedings under art 311 are thus, to be held
according to the principles of natural justice). See Union of India v HC Goel AIR 1964 SC 364 [LNIND 1963 SC 208] [LNIND
1963 SC 208] [LNIND 1963 SC 208], Union of India v HC Goel [1964] 4 SCR 718 [LNIND 1963 SC 208] [LNIND 1963 SC 208]
[LNIND 1963 SC 208], Union of India v HC Goel (1964) 1 LLJ 38 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC
100 100
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208].

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/C.
HEARING/[005.059] Modes of hearing
[005.059] Modes of hearing The normal rule is that before making a decision, the concerned authority must
give a hearing to the concerned parties, even if the parties have no effective response1. To give a hearing to
the affected person is a necessary part of the audi alteram partem rule2. There are two principal modes of
hearing before an adjudicatory body:
(1) oral or personal hearing; and

(2) hearing through written representations.
The hearing procedure that is to be followed in various situations is not fixed and may vary from case to
case. It is ultimately for the court to decide whether the hearing procedure followed in a specific case accords
with natural justice or not3.
As the concept of natural justice is flexible, it is not definite as to when an oral hearing may be claimed by the
affected person4. The courts may insist that that an oral hearing is not necessary and that a written
representation by the interested person would suffice to meet the requirements of natural justice5. Thus,
natural justice does not necessarily insist on an oral hearing, unless the context requires otherwise6.
Submission of written representation by the concerned person may be regarded as adequate compliance
with natural justice7. However, there may be circumstances where fairness may demand an oral hearing.
Where complex and technical questions or complicated questions of fact are involved and evidence needs to
be taken from witnesses, an oral hearing may be necessary8. For example, while determining the question of
Indian citizenship and passing an order of deportation against a person on account of her not being an Indian
citizen, personal hearing is necessary9. Where the question is that of cancellation of a liquor licence involving
heavy financial loss to the licensee and the licensee raises controversial issues of fact and asks for an oral
hearing, it must be granted to him because to effectively resolve questions of fact, oral evidence from
witnesses would be necessary10. Likewise, the courts in the matter of dismissal of a civil servant11 invariably
insist upon an oral hearing before the inquiry officer.
Personal hearing is also necessary when disciplinary action in envisaged against a professional person by
the concerned professional body, such as, a chartered accountant12. In cases of dismissal of workers by the
management, an oral hearing is normally insisted upon by the courts13.
It is not clear whether an oral hearing is necessary when action is taken against a student for using unfair
means in the examination. While in some cases, it has been held as necessary14, in other cases, the judicial
approach has been to the contrary15.
Where the statute requires that an opportunity of making representations and not personal hearing be given,
it will be wrong on part of the concerned authority to issue a notice for hearing to some of the parties and not
to others on the ground that the law does not insist on hearing the parties16.
In cases where an oral hearing is being held, refusal to give due adjournments to enable the party to appear
personally or for his witnesses to appear, may amount to a denial of reasonable opportunity of being
heard17. The need to provide an opportunity to present an effective answer or defence may make it
necessary to adjourn the proceedings as sometimes, if justice is to be done, adjournments are essential18.
However, if the person had full knowledge of the case and he had ample time to prepare his case, a refusal
to grant adjournment will not be violative of natural justice19.
101 101
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An objective consideration is possible only if the party affected is heard and is given a chance to satisfy the
authority regarding final orders that may be passed against him20.
1 Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215],
Olga Tellis v Bombay Municipal Corp (1985) 3 SCC 545 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215],
Olga Tellis v Bombay Municipal Corp (1986) Cr LR (SC) 23; Ridge v Baldwin [1964] AC 40 at 64-65, 85-86, 132, Ridge v
Baldwin [1963] 2 All ER 66 at 71, 84-85, 114, HL,: The essential requirements of natural justice at least include that before
some one is condemned he is to have an opportunity of defending himself.
2 As to the rule of audi alteram partem see [005.054].
3 SL Kapoor v Jagmohan AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v
Jagmohan (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v Jagmohan
4 See note 3 above.
5 AK Gopalan v State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22], AK Gopalan
v State of Madras (1950) SCJ 174 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22], AK Gopalan v State of
Madras [1950] SCR 88 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22]; Union of India v Jesus Sales Corpn
AIR 1996 SC 1509 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608], 1512, Union of India v Jesus Sales
Corpn (1996) 4 SCC 69 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608], Union of India v Jesus Sales
Corpn (1996) 3 JT 597 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608]; Gouranga Chakraborty v State
of Tripura AIR 1989 SC 1321 [LNIND 1989 SC 203] [LNIND 1989 SC 203] [LNIND 1989 SC 203], Gouranga Chakraborty v
State of Tripura (1989) 3 SCC 314 [LNIND 1989 SC 203] [LNIND 1989 SC 203] [LNIND 1989 SC 203], Gouranga Chakraborty
v State of Tripura [1989] 2 SCR 271 [LNIND 1989 SC 203] [LNIND 1989 SC 203] [LNIND 1989 SC 203]; Narendra Narain
Misra v The Vice Chanceller, Gorakhpur University AIR 1975 All 290; Lloyd v Mcmahon [1987] AC 625 at 703, Lloyd v
Mcmahon [1987] 1 All ER 1118 at 1161 HL,.
Oral hearing has been held as not necessary:
(1) by the President of India, in determining the dispute about the age of a judge: Union of India v Jyoti Prakash
Mitter AIR 1971 SC 1093 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], Union of India v
Jyoti Prakash Mitter (1971) 1 SCC 396 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], Union
of India v Jyoti Prakash Mitter [1971] 3 SCR 483 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC
54];
(2) by the Government of India, in appeal against the order of confiscation of goods said to have been illegally
imported: FN Roy v Collector of Customs, Calcutta AIR 1957 SC 648 [LNIND 1957 SC 57] [LNIND 1957 SC
57] [LNIND 1957 SC 57], FN Roy v Collector of Customs, Calcutta (1957) SCJ 734 [LNIND 1957 SC 57]
[LNIND 1957 SC 57] [LNIND 1957 SC 57], FN Roy v Collector of Customs, Calcutta (1957) Cr LJ 1028.
(3) by a disciplinary authority, at the final stage of deciding after hearing by the inquiry officer: S Kapur Singh v
Union of India AIR 1960 SC 493 [LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227], S Kapur
Singh v Union of India (1960) SCJ 487 [LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227], S
Kapur Singh v Union of India (1960) 2 SCR 569 [LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC
227];
(4) by the Central Government, in revision proceedings against refusal to give mining lease under the Mineral
Concession Rules 1960: MP Industries v Union of India AIR 1966 SC 471;
(5) by the state government, in appeal under the Hyderabad Abolition of Inams and Cash Grant Act 1954:
Rangnath v Daulatrao AIR 1975 SC 2146 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440],
Rangnath v Daulatrao (1975) 1 SCC 686 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440],
Rangnath v Daulatrao [1975] 3 SCR 99 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440];
(6) by the Coal Board, while considering an application for opening or reopening a mine under the Coal Mines
(Conservation and Safety) Act 1952 and the rules made under it: Ondal Coal Co v Sonepur Coalfields AIR
1970 Cal 391 [LNIND 1970 CAL 36] [LNIND 1970 CAL 36] [LNIND 1970 CAL 36];
(7) by the government, in superseding a municipality: Satish Chandra Khandelwal v Union of India AIR 1983 Del
1, Satish Chandra Khandelwal v Union of India (1981) ILR 1 Del 917;
(8) by the deputy registrar, in superseding a co-operative society: Durga Shankar v State AIR 1980 Ori 20
[LNIND 1979 ORI 42] [LNIND 1979 ORI 42] [LNIND 1979 ORI 42];
(9) by the government, in exercising the power of revision over the order of the registrar of co operative societies:
Chintapalli Agency Taluk Arrack Sales Co op Society v Secretary, (Food and Agriculture), Government of
Andhra Pradesh AIR 1977 SC 2317, Chintapalli Agency Taluk Arrack Sales Co op Society v Secretary, (Food
and Agriculture), Government of Andhra Pradesh (1977) 4 SCC 337 [LNIND 1977 SC 275] [LNIND 1977 SC
275] [LNIND 1977 SC 275], Chintapalli Agency Taluk Arrack Sales Co op Society v Secretary, (Food and
Agriculture), Government of Andhra Pradesh (1977) UJ 651.
(10) by the Supreme Court: Kehar Singh v Union of India AIR 1989 SC 653 [LNIND 1988 SC 586] [LNIND 1988
SC 586] [LNIND 1988 SC 586], Kehar Singh v Union of India (1989) 1 SCC 204 [LNIND 1988 SC 586] [LNIND
102 102
Page
1988 SC 586] [LNIND 1988 SC 586], Kehar Singh v Union of India [1988] Supp 3 SCR 1102 (the Supreme
Court ruled that the President in exercising his power under the Constitution of India art 72, to pardon a person
sentenced to death, the condemned person cannot insist on a personal hearing for presenting oral argument
before the President; that the manner of consideration of the petition lies within the discretion of the President).
(11) by the authority conducting a court martial: Ranjit Thakur v Union of India AIR 1987 SC 2386 [LNIND 1987
SC 964] [LNIND 1987 SC 964] [LNIND 1987 SC 964], Ranjit Thakur v Union of India (1987) 5 JT 93, Ranjit
Thakur v Union of India (1987) 3 IJ Rep 658; GS Sodhi v Union of India; AIR 1991 SC 1617, GS Sodhi v
Union of India; (1991) 2 SCC 567, GS Sodhi v Union of India; [1991] 2 SCR 812 [LNIND 1991 SC 280] [LNIND
1991 SC 280] [LNIND 1991 SC 280]; Union of India v Amrik Singh AIR 1991 SC 565; SN Mukherjee v Union
of India AIR 1990 SC 1985, SN Mukherjee v Union of India (1990) 4 SCC 594 [LNIND 1990 SC 986] [LNIND
1990 SC 986] [LNIND 1990 SC 986], SN Mukherjee v Union of India [1990] Supp 1 SCR 44. See Harish
Uppal v Union of India AIR 1973 SC 258 [LNIND 1972 SC 556] [LNIND 1972 SC 556] [LNIND 1972 SC 556],
Harish Uppal v Union of India (1973) 3 SCC 319 [LNIND 1972 SC 556] [LNIND 1972 SC 556] [LNIND 1972 SC
556], Harish Uppal v Union of India [1973] 2 SCR 1035 [LNIND 1972 SC 557] [LNIND 1972 SC 557] [LNIND
1972 SC 557](to insist that the confirming authority must give a hearing to the petitioner before it confirmed the
sentence passed by the court martial is a contention which cannot be accepted; to accept the contention would
mean that all the procedure laid down by the Code of Criminal Procedure 1973 must be adopted in respect of
the court martial, a contention which cannot be accepted in the face of the very clear indications in the
constitution that the provisions which are applicable to all the civil cases are not applicable to cases of Armed
Personnel; it is not a requirement of the principles of natural justice).
(12) by a cantonment board: Cantonment Board v Mohanlal AIR 1996 SC 1586 [LNIND 1996 SC 10] [LNIND
1996 SC 10] [LNIND 1996 SC 10], Cantonment Board v Mohanlal (1996) 1 SCJ 353, Cantonment Board v
Mohanlal (1996) 3 JT 597 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] (the
cantonment board served a show cause notice to the owner of a building against an illegal construction; he
filed a written representation and after considering the same, issued a demolition order; the order of the board
was held to be not in violation of natural justice).
Union of India v Jesus Sales Corpn AIR 1996 SC 1509 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC 2608],
1512, Union of India v Jesus Sales Corpn (1996) 4 SCC 69 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC
2608], Union of India v Jesus Sales Corpn (1996) 3 JT 597 [LNIND 1996 SC 2608] [LNIND 1996 SC 2608] [LNIND 1996 SC
2608]: when principles of natural justice require an opportunity to be heard before an adverse order is passed on any appeal or
application, it does not in all circumstances mean a personal hearing. The requirement is complied with by affording an
opportunity to the person concerned to present his case before such quasi-judicial authority who is expected to apply his judicial
mind to the issues involved.
The Chairman, Board of Mining Examinationand Chief Inspector of Mines v Ramjee AIR 1977 SC 965 [LNIND 1977 SC 67]
SC 67] (the inspector enquired into the cause of a mine accident, suspended the certificate of the concerned short firer and sent
all the papers to the Board which cancelled the short firer's certificate; the Board's order was challenged as it had not given an
opportunity to the short firer to explain his conduct; however, the Supreme Court found no flaw in the procedure as the short
firer had, in the form of an appeal against the inspector's report, sent his explanation which amounted to hearing).
8 Travancore Rayons Ltd v Union of India AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC
439], Travancore Rayons Ltd v Union of India (1969) 3 SCC 868 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC
439], Travancore Rayons Ltd v Union of India [1970] 3 SCR 257 (where complex and difficult questions requiring familiarity with
technical problems are raised, if personal hearing is given, it would conduce to better administration and more satisfactory
disposal of the grievances of the citizen).
9 Union of India v Chand Putli AIR 1973 All 362, Union of India v Chand Putli (1973) All LJ 150, Union of India v Chand Putli
(1972) All WR (HC) 898.
10 Bhagat Singh v State of Punjab AIR 1975 P & H 236, Bhagat Singh v State of Punjab (1975) ILR 2 Punj 346, Bhagat Singh
v State of Punjab (1975) Punj LJ (Cr) 227; State of Uttar Pradesh v Maharaja Dharmander Prasad Singh AIR 1989 SC 997
[LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680], State of Uttar Pradesh v Maharaja Dharmander Prasad
Singh (1989) 2 SCC 505 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680], State of Uttar Pradesh v Maharaja
Dharmander Prasad Singh [1989] 1 SCR 138 [LNIND 1989 SC 31] [LNIND 1989 SC 31] [LNIND 1989 SC 31] (in a case of
cancellation of permission to construct a building, the Supreme Court insisted on a personal hearing being given to the lessees
by the concerned authority for two main reasons: (1) involvement of heavy financial stakes as the concerned person had
already made large investments on the project; and (2) the need to determine factual matters of some complexity;quashing the
order of the concerned authority, the Court suggested that the authority must afford a reasonable opportunity including an
opportunity of personal hearing and of adducing evidence wherever necessary to the respondent lessees).
11 Dewan Singh v State of Haryana AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227],
103 103
Page
Dewan Singh v State of Haryana (1977) 1 SCC 46 [LNIND 1976 SC 512] [LNIND 1976 SC 512] [LNIND 1976 SC 512], Dewan
Singh v State of Haryana (1976) 2 SCWR 89; Ram Chander v Union of India AIR 1986 SC 1175, Ram Chander v Union of
India (1986) 3 SCC 103 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169], Ram Chander v Union of India
[1986] 2 SCR 980 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169] (the appellant was removed from service
by the General Manager, Northern Rly, after an ex parte inquiry as he did not appear at the inquiry after he was given notice of
the date of the inquiry; he appealed to the Railway Board which dismissed that appeal without giving him a hearing; the court
stated that considerations of fair play and justice require that a personal hearing be given).
12 Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394]
[LNIND 1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1987) 4 SCC 537 [LNIND 1987 SC 680] [LNIND
1987 SC 680] [LNIND 1987 SC 680], Institute of Chartered Accountants of India v L K Ratna (1986) JT 671; Vasant Bhavsar v
Bar Council of India (1999) SCC 45, 47.
13 Central Bank of India v Karunamoy Banerjee AIR 1968 SC 266 [LNIND 1967 SC 234] [LNIND 1967 SC 234] [LNIND 1967
SC 234], Central Bank of India v Karunamoy Banerjee [1968] 1 SCR 251 [LNIND 1967 SC 234] [LNIND 1967 SC 234] [LNIND
1967 SC 234], Central Bank of India v Karunamoy Banerjee (1968) Lab IC 219 [LNIND 1967 SC 234] [LNIND 1967 SC 234]
[LNIND 1967 SC 234].
14 Board of High School and Intermediate Education, Uttar Pradesh, Allahabad v Bagleshwar Prasad AIR 1966 SC 875
[LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277], Board of High School and Intermediate Education, Uttar
Pradesh, Allahabad v Bagleshwar Prasad [1963] 3 SCR 767 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC
277], Board of High School and Intermediate Education, Uttar Pradesh, Allahabad v Bagleshwar Prasad (1963) 7 FLR 415;
Ram Narayan Kishori v University of Calcutta AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981 CAL
284], Ram Narayan Kishori v University of Calcutta (1982) 86 Cal WN 146; Kamalendu Prasad Pudhi v Sambalpur University
AIR 1976 Ori 134 [LNIND 1975 ORI 79] [LNIND 1975 ORI 79] [LNIND 1975 ORI 79], Kamalendu Prasad Pudhi v Sambalpur
University (1976) ILR Cut 109; Pramila v Secy Board of Secondary Education AIR 1972 Ori 224.
15 Narendra Narain Misra v The Vice Chanceller, Gorakhpur University AIR 1975 All 290.
16 NP Purushothaman v State of Kerela AIR 1983 Ker 31, NP Purushothaman v State of Kerela (1983) ILR Ker 187, NP
Purushothaman v State of Kerela (1983) Ker LT 527. As to the requirement of notice as an essential part of fair hearing see
[005.055]-[005.059].
17 Rose v Humbles [1970] 2 All ER 519, Rose v Humbles [1970] 1 WLR 1061; on appeal on appeal [1972] 1 All ER 314, on
appeal [1972] 1 WLR 33, CA.
18 UP Singh v Board of Governors, Maulana Azad College of Technology, Bhopal AIR 1982 MP 59 [LNIND 1981 MP 81]
[LNIND 1981 MP 81] [LNIND 1981 MP 81], UP Singh v Board of Governors, Maulana Azad College of Technology, Bhopal
(1982) MP LJ 75, UP Singh v Board of Governors, Maulana Azad College of Technology, Bhopal (1982) Jab LJ 653.
19 Hanson v Church Comrs for England [1978] QB 823, Hanson v Church Comrs for England [1977] 3 All ER 404 CA,.
20 Ram Chander v Union of India AIR 1986 SC 1175, Ram Chander v Union of India (1986) 3 SCC 103 [LNIND 1986 SC 169]
[LNIND 1986 SC 169] [LNIND 1986 SC 169], Ram Chander v Union of India [1986] 2 SCR 980 [LNIND 1986 SC 169] [LNIND
1986 SC 169] [LNIND 1986 SC 169].

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/D.
DISCLOSURE OF MATERIALS/[005.060] Generally
[005.060] Generally A cardinal principle of natural justice is that an adjudicatory body must decide a matter
on the basis of materials placed before it in the course of proceedings. The decision maker must not take
extraneous matters into consideration and must not base its decision on any material, unless the person
against whom it is sought to be utilised has been apprised of it and given an opportunity to rebut, comment
or explain the same1. If without disclosing any material to the party, the adjudicator takes the same into
consideration and decides the matter against him, then the decision would be vitiated for it amounts to a
denial of real and effective opportunity to the party to meet the case against him. No materials must be relied
on against him without his being given an opportunity of explaining them2.
The copies of relevant documents must be supplied to the affected person. If the copies are not supplied, he
must at least be given an opportunity to inspect the documents and take notes3. An order of dismissal of a
government servant may be quashed if the disciplinary authority refuses to furnish to him copies of the
104 104
Page
documents and statements of witnesses recorded ex parte4 at the pre inquiry stage. Non observance of this
norm may vitiate the decision of the adjudicating authority5. However, the Supreme Court may limit the
operation of this principle to relevant and material documents only. A copy of a document need not be
supplied if it has no bearing on the charges or if it is not relied upon by the inquiry officer to support the
charges or if such a document or material was not necessary for the cross-examination6 of the witnesses
during the inquiry. The decision of the question depends upon the facts and circumstances of each case7.
Natural justice is infringed if an adjudicatory body decides a matter on the basis of confidential material
unknown to the party concerned8. Receipt of evidence by the adjudicator from one party to the dispute
behind the back of the other party and non-disclosure of the same to it, will vitiate the hearing9.
The extent and content of the material to be disclosed depends upon the facts of each case10. For instance,
it is not necessary to disclose such materials to the party concerned, as the adjudicating authority is not
relying upon as evidence against him11. If a gist of the documents against the concerned party has been
brought to the notice of the adjudicating authority, then the non-supply of copies of the same may not violate
natural justice12. The assessing authority is not required to supply copies of the records of third persons if it
wants to use them against the assessee and it would be adequate if the information contained therein is
supplied to him13. Reading of the report may be considered as sufficient compliance with the principles of
natural justice14. An opportunity to be heard may be regarded as reasonable notwithstanding the omission to
give particulars of any fraud or inspection of papers15.
Where disclosure of a preliminary inquiry report is concerned, it may not be necessary to show the reports if
the gist thereof is communicated to the affected person16. The court normally finds it unnecessary to give a
copy of the preliminary report to the concerned person, unless the inquiry officer seeks to rely on the same in
support of his findings and conclusions17.
In an oral hearing, the ideal procedure is to take evidence against the party concerned in his presence18. It
may amount to violation of natural justice to take evidence behind the back of the concerned party19. In a
case where evidence is taken in the absence of the affected party, the party concerned must either be
apprised of the statements made by the witnesses or a copy of the statements be supplied to him. If a
witness who has already testified behind the back of the party concerned is re-called in the presence of the
party, his evidence recorded earlier must be read out, a copy of the same must be given to the affected party
and the party must be given an opportunity to cross examine the witness to avoid a breach of natural justice.
However, in such a situation, it is not necessary to make the witnesses repeat what he had already said
verbatim20. Besides, there may be circumstances when it may not be regarded as expedient to examine the
witnesses in person in the presence of the affected party or disclose their identity or the source of information
and evidence may have to be collected behind his back. The reason to do so may be that it may be
embarrassing for the witnesses to confront the party and testify in his presence or there may be danger to
the life and property of witnesses if they are identified. Even in such a case, the fundamental point that the
gist of the evidence collected against the party concerned must be brought to his notice and he be given an
opportunity to rebut the same, applies21.
1 H Sabey & Co Ltd v Secretary of State for the Environment [1978] 1 All ER 586.
2 Union of India v TR Varma AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of India
v TR Varma (1958) SCJ 142, Union of India v TR Varma (1958) All LJ 126.
3 City Corner v Personal Assistant to Collector and Additional District Magistrate, Nellore AIR 1976 SC 143 [LNIND 1975 SC
369] [LNIND 1975 SC 369] [LNIND 1975 SC 369], City Corner v Personal Assistant to Collector and Additional District
Magistrate, Nellore (1976) 1 SCC 124 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC 369], City Corner v
Personal Assistant to Collector and Additional District Magistrate, Nellore [1976] 2 SCR 38 [LNIND 1975 SC 369] [LNIND 1975
SC 369] [LNIND 1975 SC 369].
4 As to the meaning of ex parte decree see CIVIL PROCEDURE[65.334].
Kashinath Dikshita v Union of India AIR 1986 SC 2118 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199],
105 105
Page
2120, Kashinath Dikshita v Union of India (1986) 3 SCC 229 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC
199], Kashinath Dikshita v Union of India (1986) 2 SLR 620.
Judicial pronouncements where non disclosure of the evidence to the affected party has been held to be fatal to the hearing
proceedings are as follows: Sahi Ram v Avtar Singh AIR 1999 SC 2169 [LNIND 1999 SC 562] [LNIND 1999 SC 562] [LNIND
1999 SC 562], Sahi Ram v Avtar Singh (1999) 4 SCC 511 [LNIND 1999 SC 562] [LNIND 1999 SC 562] [LNIND 1999 SC 562];
Chairman, Prathama Bank, Moradabad v Vijay Kumar Goel AIR 1989 SC 1977 [LNIND 1989 SC 407] [LNIND 1989 SC 407]
[LNIND 1989 SC 407], Chairman, Prathama Bank, Moradabad v Vijay Kumar Goel (1989) 4 SCC 441 [LNIND 1989 SC 407]
[LNIND 1989 SC 407] [LNIND 1989 SC 407], Chairman, Prathama Bank, Moradabad v Vijay Kumar Goel (1989) SCC (L & S)
664 (Supreme Court quashed an order of dismissal of the respondent by the appellant bank because he was not given
adequate opportunity to examine the documents mentioned in the charge sheet served on him and thus, was handicapped in
defending himself effectively); Kan Singh v STA Tribunal AIR 1988 SC 18 [LNIND 1987 SC 708] [LNIND 1987 SC 708] [LNIND
1987 SC 708], Kan Singh v STA Tribunal (1987) Supp SCC 671; North Bihar Agency v State of Bihar AIR 1981 SC 1758, North
Bihar Agency v State of Bihar (1981) 3 SCC 131, North Bihar Agency v State of Bihar (1981) SCC (Cr) 651 (drug licence of the
appellants was cancelled on certain charges without giving them a proper opportunity of hearing; also certain charges not
mentioned initially in the show cause notice were also taken into consideration by the appellate authority and the order of
cancellation of the licence was confirmed; the Supreme Court quashed the order as the authority had relied upon certain
additional material without furnishing an opportunity to the licensee to meet the same); Dewan Singh v State of Haryana AIR
1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC 227] [LNIND 1976 SC 227], Dewan Singh v State of Haryana (1977) 1
SCC 46 [LNIND 1976 SC 512] [LNIND 1976 SC 512] [LNIND 1976 SC 512], Dewan Singh v State of Haryana (1976) 2 SCWR
89; State of Orissa v Binapani Dei AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37], State of
Binapani Dei (1967) 2 LLJ 266 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]; Bishamabhar Nath Kohli v
State of Uttar Pradesh AIR 1966 SC 573 [LNIND 1965 SC 256] [LNIND 1965 SC 256] [LNIND 1965 SC 256], Bishamabhar
Nath Kohli v State of Uttar Pradesh [1966] 2 SCR 158 [LNIND 1965 SC 256] [LNIND 1965 SC 256] [LNIND 1965 SC 256];
Sinha Govindji v Deputy Chief Controller of Exports and Imports (1962) I SCJ 93, Sinha Govindji v Deputy Chief Controller of
Exports and Imports [1962] 1 SCR 540 [LNIND 1961 SC 542] [LNIND 1961 SC 542] [LNIND 1961 SC 542]; State of Madhya
Pradesh v Chintaman Sadashiva Vaishampayam AIR 1961 SC 1623, State of Madhya Pradesh v Chintaman Sadashiva
Vaishampayam (1961) Jab LJ 702; Dev Pal Singh v Vice Chancellor, GB Pant University of Agriculture and Technology,
Nainital AIR 1992 All 163 [LNIND 1991 ALL 377] [LNIND 1991 ALL 377] [LNIND 1991 ALL 377], Dev Pal Singh v Vice
Chancellor, GB Pant University of Agriculture and Technology, Nainital (1992) Lab IC 996 [LNIND 1991 ALL 520] [LNIND 1991
ALL 520] [LNIND 1991 ALL 520]; Shri Bhairav Nath v Central Board of Education AIR 1991 Del 232; Sovachand Mulchand v
Collector, Central Excise AIR 1968 Cal 174 [LNIND 1966 CAL 202] [LNIND 1966 CAL 202] [LNIND 1966 CAL 202].
6 As to cross-examination as an essential part of the rule of audi alteram partem see [005.062].
7 Chandrama Tewari v Union of India AIR 1988 SC 117 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC 772],
Chandrama Tewari v Union of India (1987) Supp SCC 229, Chandrama Tewari v Union of India (1988) SCC (L & S) 226.
Dhakeshwari Cotton Mills Ltd v Comr of Income Tax, West Bengal AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC
149] [LNIND 1954 SC 149](the Supreme Court regarded it as a violation of natural justice when the Income Tax Appellate
Tribunal did not disclose to the assessee the information which had been supplied against him by the departmental
representative); Brajlal Manilal and Co v Union of India AIR 1964 SC 1643 [LNIND 1964 SC 388] [LNIND 1964 SC 388] [LNIND
1964 SC 388], Brajlal Manilal and Co v Union of India [1964] 7 SCR 97 [LNIND 1964 SC 388] [LNIND 1964 SC 388] [LNIND
1964 SC 388] (the Court quashed the order of the Government of India holding that the government could not act on the basis
of materials against which the appellant had no opportunity to make his representation; if the Central Government was
considering the report of the state government which made any point against the appellant's representations, then in fairness,
the appellant was entitled to be informed as to what these were and be given an opportunity to point out as to how far they
militated against the contention raised by him); Mahadayal Premchandra v Commercial Tax Officer, Calcutta AIR 1958 SC 667
[LNIND 1958 SC 53] [LNIND 1958 SC 53] [LNIND 1958 SC 53], Mahadayal Premchandra v Commercial Tax Officer, Calcutta
(1958) SCJ 728, Mahadayal Premchandra v Commercial Tax Officer, Calcutta (1958) 2 Mad LJ (SC) (where the sales tax
officer depended entirely on the advice of his senior and assessed the appellant to sales tax without showing him the senior's
opinion and giving him an opportunity to state his point of view against the same, the Supreme Court quashed the assessment
proceedings on the ground that the opinion of the senior officer must have been brought to the assessee's notice and an
opportunity given to him to state his point of view against the same; thus, non disclosure of the senior officer's opinion to the
assessee was held to be fatal to the assessment proceedings).
See also Vijay Kumar v State of Maharashtra AIR 1988 SC 2060, Vijay Kumar v State of Maharashtra (1988) Supp SCC 674,
Vijay Kumar v State of Maharashtra (1988) SCC (L & S) 42 (the appellant was denied senior time scale on the basis of a
confidential report which was not supplied to him while his juniors had been given that scale; the Court quashed the government
order saying that rules of natural justice had been violated); Kan Singh v STA Tribunal AIR 1988 SC 18 [LNIND 1987 SC 708]
[LNIND 1987 SC 708] [LNIND 1987 SC 708], Kan Singh v STA Tribunal (1987) Supp SCC 671; Sovachand Mulchand v
Collector, Central Excise AIR 1968 Cal 174 [LNIND 1966 CAL 202] [LNIND 1966 CAL 202] [LNIND 1966 CAL 202](an order of
the collector imposing penalty was quashed as the person affected was only informed of the collector's conclusion of facts but
not the facts on which it was based); R v Birmingham City Justice, ex p Chris Foreign Foods (Wholesalers) Ltd [1970] 3 All ER
945, R v Birmingham City Justice, ex p Chris Foreign Foods (Wholesalers) Ltd [1970] 1 WLR 1428, DC.
106 106
Page
See contra Chingleput Bottlers v Majestic Bottling Co AIR 1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND
1984 SC 79], Chingleput Bottlers v Majestic Bottling Co (1984) 3 SCC 258 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND
1984 SC 79] (an order refusing to grant a licence for manufacture and supply of bottled liquor was challenged by Chingleput
Bottlers on the ground inter alia of denial of natural justice; the main ground of challenge was that the collector had conducted a
secret inquiry against Chingleput and on the basis of the collector's report, the commissioner refused to give them the licence,
however, a copy of the collector's report was not given to them; rejecting the contention, the Supreme Court pointed out that it
was quite proper for the commissioner to make secret and discreet inquiries from confidential sources and there was no duty
cast on the commissioner to disclose to Chingleput the sources of adverse information or to give them the opportunity to
confront the informants).
Kashinath Dikshita v Union of India (1986) 3 SCC 229 [LNIND 1986 SC 199] [LNIND 1986 SC 199] [LNIND 1986 SC 199],
Kashinath Dikshita v Union of India (1986) 2 SLR 620; Krishna Chandra Tandon v Union of India AIR 1974 SC 1589, Krishna
Chandra Tandon v Union of India (1974) 4 SCC 374, Krishna Chandra Tandon v Union of India (1974) 1 SLR 178 (in a
disciplinary proceeding against an income tax officer, the inquiry officer made some private enquiries about the income tax
officer's (ITO's) property; the Court regarded the procedure to be bad as the ITO had not been associated with the inquiry; the
order of dismissal of the petitioner was quashed because of: (1) failure to supply copies of the statements of witnesses recorded
ex parte at the pre inquiry stages; and (2) failure to supply copies of the documents on which reliance was placed by the
department to establish the charges before the inquiry commenced; the petitioner had been denied reasonable opportunity of
defending himself) Bishamabhar Nath Kohli v State of Uttar Pradesh AIR 1966 SC 573 [LNIND 1965 SC 256] [LNIND 1965 SC
256] [LNIND 1965 SC 256], Bishamabhar Nath Kohli v State of Uttar Pradesh [1966] 2 SCR 158 [LNIND 1965 SC 256] [LNIND
1965 SC 256] [LNIND 1965 SC 256] (in revision proceedings under Administration of Evacuee Property Act 1950 s 27, the
Custodian General accepted evidence by one party but failed to give an opportunity to the other party to meet the evidence
tendered against him; the procedure was held to be wholly inconsistent with the principles of natural justice).
See also Chandrama Tewari v Union of India AIR 1988 SC 117 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC
772], Chandrama Tewari v Union of India (1987) Supp SCC 229, Chandrama Tewari v Union of India (1988) SCC (L & S) 226.
As to hearing as an essential part of the rule of audi alteram partem see [005.058].
10 Prem Prakash Kalkunia v Punjab University AIR 1972 SC 1408, Prem Prakash Kalkunia v Punjab University (1973) 3 SCC
424.
11 Krishna Chandra Tandon v Union of India AIR 1974 SC 1589, Krishna Chandra Tandon v Union of India (1974) 4 SCC 374,
Krishna Chandra Tandon v Union of India (1974) 1 SLR 178.
12 City Corner v Personal Assistant to Collector and Additional District Magistrate, Nellore AIR 1976 SC 143 [LNIND 1975 SC
369] [LNIND 1975 SC 369] [LNIND 1975 SC 369], City Corner v Personal Assistant to Collector and Additional District
Magistrate, Nellore (1976) 1 SCC 124 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC 369], City Corner v
Personal Assistant to Collector and Additional District Magistrate, Nellore [1976] 2 SCR 38 [LNIND 1975 SC 369] [LNIND 1975
SC 369] [LNIND 1975 SC 369]; Dewan Singh v State of Haryana AIR 1976 SC 1921 [LNIND 1976 SC 227] [LNIND 1976 SC
227] [LNIND 1976 SC 227], Dewan Singh v State of Haryana (1977) 1 SCC 46 [LNIND 1976 SC 512] [LNIND 1976 SC 512]
[LNIND 1976 SC 512], Dewan Singh v State of Haryana (1976) 2 SCWR 89.
13 Dhakeshwari Cotton Mills Ltd v Comr of Income Tax, West Bengal AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC
149] [LNIND 1954 SC 149]; Madugula Papayya v Province of Madras (1956) 7 STC 180 (Mad); See contra M Appukuty v
State of Kerala (1963) 14 STC 489 (Ker).
14 New Prakash Transport Co Ltd v New Suwarna Transport Co Ltd AIR 1957 SC 232 [LNIND 1956 SC 132] [LNIND 1956 SC
132] [LNIND 1956 SC 132], New Prakash Transport Co Ltd v New Suwarna Transport Co Ltd (1957) SCJ 236 [LNIND 1956 SC
132] [LNIND 1956 SC 132] [LNIND 1956 SC 132], New Prakash Transport Co Ltd v New Suwarna Transport Co Ltd [1957]
SCR 98 (in a proceeding under the Motor vehicles Act 1988 when the tribunal hearing rival appellants for bus permits did not
supply a copy of the police report to the complaining party and the party had not asked for its copy at that time, the Supreme
Court rejected the contention that the non supply of a copy of the report was a breach of natural justice as the report had been
read to the concerned parties).
15 Fedco (Pvt) Ltd v SN Bilgrami AIR 1960 SC 415 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219], Fedco
(Pvt) Ltd v SN Bilgrami (1960) SCJ 235 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219], Fedco (Pvt) Ltd v
SN Bilgrami [1960] 2 SCR 408 [LNIND 1959 SC 219] [LNIND 1959 SC 219] [LNIND 1959 SC 219] (an import license of the
petitioner was cancelled on the ground of fraud; he was not supplied the particulars of fraud, nor was he allowed to inspect the
concerned documents; the administration claimed that the concerned import licensee was apprised of the details of the fraud
committed by him; the Supreme Court accepted the version of the administration of what happened rather than that of the
affected licensee and took the view that there was no denial of natural justice).
16 T VR Radhakrishna Chettiar v State of Tamil Nadu AIR 1974 SC 1862, T VR Radhakrishna Chettiar v State of Tamil Nadu
(1974) 2 SCC 496 (the collector and the director of rural development submitted reports to the government about the working of
a panchayat; the government then gave notice under the statute concerned calling upon the panchayat to show cause why it
must not be dissolved; the panchayat was eventually dissolved; the order was challenged on the ground that the copies of the
107 107
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reports of the collector and the director had not been given to the petitioners; the Supreme Court held that natural justice was
not violated in the instant case as the substance of the reports had been given in the form of grounds in the show cause notice
issued to the panchayat; however, the court did rule that when the summary of the documents on which the show cause notice
was based, is mentioned in the form of the grounds therein, it is the duty of the adjudicating authority to mention this fact if the
individual asks for the documents and that failure to do so results in violation of natural justice).
Krishna Chandra Tandon v Union of India (1974) 1 SLR 178 (the primary purpose of the preliminary report is to find out if there
are any prima facie grounds for initiating formal proceedings against the petitioner; if the inquiry officer wants to rely on the
report for his conclusions, only then a copy of the same must be given to the person concerned). See contra State of Uttar
Pradesh v Mohd Sharif AIR 1982 SC 937 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13], State of Uttar
Pradesh v Mohd Sharif (1982) 2 SCC 376 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13], State of Uttar
Pradesh v Mohd Sharif (1982) Lab IC 1234 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13] (before initiating
formal disciplinary proceedings against a police constable, a preliminary inquiry was held in which witnesses were examined;
copies of their statements were not furnished to the delinquent employee, nor was the report of the preliminary inquiry shown to
him; the proceedings were quashed by the Supreme Court); Sohan Lal v State of Punjab AIR 1983 P & H 62; B Surinder
Singh Kanda v Govt of Malaysia (1962) Mad LJ 169 (even if the preliminary report is given to the inquiry officer and not to the
party concerned, it may amount to denial of fair hearing to him); Suresh v State AIR 1970 MP 154 [LNIND 1969 MP 9] [LNIND
1969 MP 9] [LNIND 1969 MP 9](charges were framed against a municipal corporation after a preliminary inquiry by the
commissioner; after receiving an explanation of the corporation, the corporation was superseded without any further inquiry; a
copy of the preliminary report was not shown to the corporation; the court held that the report constituted an important material
which was taken into account by the government in taking action against the corporation; had there been a second inquiry after
receiving the explanation of the corporation and the preliminary report not considered therein or in taking the final action,
withholding of the preliminary inquiry report might not result in infraction of the rules of natural justice; however, when no fresh
inquiry was held after the show cause notice and the explanation was bound to be judged in the light of the preliminary inquiry
report on which the charges were based, this report would be an important material to be taken into account in making the final
order and its non disclosure would necessarily result in denial of an adequate opportunity to defend oneself).
18 State of Andhra Pradesh v Nagam Chaandrasekhara Lingam AIR 1988 SC 1309; The Managing Director, Uttar Pradesh
Warehousing Corpn v Vijay Narain Vajpayee AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13],
The Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narain Vajpayee (1980) 3 SCC 459 [LNIND 1980 SC 13]
[LNIND 1980 SC 13] [LNIND 1980 SC 13], The Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narain Vajpayee
(1980) 1 SCWR 381 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13]; Kesoram Cotton Mills v Gangadhar AIR
1964 SC 708 [LNIND 1963 SC 95] [LNIND 1963 SC 95] [LNIND 1963 SC 95], Kesoram Cotton Mills v Gangadhar [1964] 2 SCR
809 [LNIND 1963 SC 95] [LNIND 1963 SC 95] [LNIND 1963 SC 95]; Roshan Lal Mehra v Ishwar Dass AIR 1962 SC 646
[LNIND 1961 SC 258] [LNIND 1961 SC 258] [LNIND 1961 SC 258], Roshan Lal Mehra v Ishwar Dass [1962] 2 SCR 947
[LNIND 1961 SC 258] [LNIND 1961 SC 258] [LNIND 1961 SC 258]; Union of India v TR Varma AIR 1957 SC 882 [LNIND 1957
SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of India v TR Varma (1958) SCJ 142, Union of India v TR Varma
(1958) All LJ 126.
19 Ram Narayan Kishori v University of Calcutta AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981
CAL 284], Ram Narayan Kishori v University of Calcutta (1982) 86 Cal WN 146 (a case involving disciplinary proceedings by a
university for using unfair means at an examination, the court insisted that the inquiry fell short of natural Justice because the
witness on whose report the proceedings were initiated was not examined in the presence of the concerned students); S P
Paul v University of Calcutta AIR 1970 Cal 282 [LNIND 1969 CAL 217] [LNIND 1969 CAL 217] [LNIND 1969 CAL 217](a
candidate was debarred from appearing in the BA examination for two years because he had used unfair means at the
examination; there was a violation of natural justice insofar as evidence of witnesses had been heard behind the candidate's
back).
20 State of Mysore v Shivabasappa Shivappa Makapur AIR 1963 SC 375 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND
1962 SC 214], State of Mysore v Shivabasappa Shivappa Makapur [1963] 2 SCR 943 [LNIND 1962 SC 214] [LNIND 1962 SC
214] [LNIND 1962 SC 214], State of Mysore v Shivabasappa Shivappa Makapur (1964) 1 LLJ 24; KL Tripathi v State Bank of
India AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL Tripathi v State Bank of India
(1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL Tripathi v State Bank of India (1984) 1
SCWR 150 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]; Blaze and Central (P) Ltd v Union of India AIR
1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73](an order was quashed because the
witnesses produced against the petitioner were not examined in his presence nor a copy of their testimony supplied to him in
spite of his specific request to this effect; that evidence was relied upon by the adjudicatory body concerned and in fact it
formed the sole basis for making the order against the petitioner; this was held to be against natural justice); Board of
Education v Rice [1911] AC 179 HL,.
21 Kishinchand Chellaram v The Comr of Income Tax, Bombay City II, Bombay AIR 1980 SC 2117 [LNIND 1980 SC 385]
[LNIND 1980 SC 385] [LNIND 1980 SC 385]; Hira Nath Misra v Principal, Rajendra Medical College AIR 1973 SC 1260 [LNIND
1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113], Hira Nath Misra v Principal, Rajendra Medical College (1973) 1
SCC 805 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113] (an inquiry was held against some male students
on a charge of their entering the girls hostel and indulging in indecent behaviour towards them; the complainant girls testified
before the inquiry committee in the absence of the male students concerned; the Supreme Court ruled that there was no denial
of natural justice as the gist of the evidence against them was explained to the male students; the girls could not testify in the
presence of the miscreants for, if they had done so, they would have exposed themselves to retaliation and harassment; the
inquiry had to be conducted in a way that while reasonable opportunity was given to the male students to defend themselves,
108 108
Page
harassment to the girls was also avoided); Board of High School and Intermediate Education, Uttar Pradesh, Allahabad v
Bagleshwar Prasad AIR 1966 SC 875 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277], Board of High
School and Intermediate Education, Uttar Pradesh, Allahabad v Bagleshwar Prasad [1963] 3 SCR 767 [LNIND 1962 SC 277]
[LNIND 1962 SC 277] [LNIND 1962 SC 277], Board of High School and Intermediate Education, Uttar Pradesh, Allahabad v
Bagleshwar Prasad (1963) 7 FLR 415; Ceylon University v Fernando [1960] 1 All ER 631 at 637-638, Ceylon University v
Fernando [1960] 1 WLR 223 at 231-232 PC, (the university took evidence from a witness in the absence of the student charged
with misconduct, however, he was informed of the statement of the witness; no violation of natural justice was found to
haveoccurred in the case; Local Government Board v Arlidge [1915] AC 120 HL,.
See also Hari Khemu Gawali v Dy Comr of Police, Bombay AIR 1956 SC 559 [LNIND 1956 SC 42] [LNIND 1956 SC 42]
[LNIND 1956 SC 42](under the Goonda Acts, evidence is collected behind the back of the goonda (bad character); the identity
of the witnesses is not disclosed to him, nor he is given an opportunity to cross examine witnesses as no witness would dare to
give evidence against a goonda in his presence); R v Gaming Board for Great Britain, ex p Benaim and Khaida [1970] 2 QB
417, R v Gaming Board for Great Britain, ex p Benaim and Khaida [1970] 2 All ER 528 CA, (supports the proposition that there
may be circumstances when the inquiry officer may not be required to disclose the sources of information against the
concerned person. Due to certain exigencies, it may be necessary to keep the identity of the witnesses confidential. In such a
situation, non-disclosure of the identity of the witnesses may not infringe natural justice provided that the information against the
person concerned is disclosed to him by the inquiry officer so that he may rebut or contradict the same.

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/E.
RECEIVING EVIDENCE/[005.061] Generally
[005.061] Generally In an oral hearing1, an adjudicating authority is obligated to give an opportunity to

produce evidence, to the person affected, in support of his case and rebut the evidence against him2.
Breach of natural justice arises when the adjudicatory authority denies reasonable opportunity to the
concerned party to produce necessary and relevant evidence. If the adjudicatory authority wrongly refuses to
receive evidence produced by the concerned party, it may amount to a denial of natural justice and,
consequently, the adjudicatory proceedings will be bad3.
The requirement to give an opportunity of producing evidence does not mean that the parties can produce
any amount of evidence they like and thus, prolong the proceedings unduly. If any party desires to lead
evidence, it is for the hearing officer to decide whether the evidence is necessary and relevant to the inquiry
before it. He must give a reasonable opportunity to the party desiring to produce evidence that is relevant to
the inquiry and within reason4.
It is not in every case that failure to record all evidence sought to be tendered by the party would vitiate the
proceedings and thus, if some evidence unnecessary, immaterial or irrelevant to the inquiry is disallowed by
the authority, the principles of natural justice are not violated. However, such discretion must be exercised
reasonably, in good faith and on proper grounds5.
A decision making authority may help the concerned party before it to secure attendance of witnesses by
issuing letters of request to them to attend and give evidence. However, an authority has no coercive power
to compel the attendance of witnesses and production of documents in the absence of a statutory provision
to that effect. It is up to the witnesses summoned to attend or not attend and produce documents6. When an
adjudicatory body has a statutory power to hold such summary inquiry as it thinks fit or has power to afford to
the objectors a reasonable opportunity of being heard, it has inherent power to request witnesses to appear
to give evidence or to produce documents; however, it does not have power to enforce their attendance or
compel production of documents7.
While the power to issue summons to witnesses may be inherent in an adjudicatory body, the power to
enforce their attendance is not so inherent. For this purpose, a statutory provision is necessary clothing the
authority with such a power. In the absence of a coercive power to compel witnesses to appear, if the
authority decides not to issue any summons or letters of request to the witnesses and leaves it to the party to
bring his own witnesses along with him, no breach of natural justice can be said to have occurred8. Where
109 109
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however, the authority has the power to summon witnesses and documents but declines the request of the
affected party to exercise that power, it will be a failure of natural justice9.
1 As to oral hearing see [005.059].
2 In Dhakeshwari Cotton Mills Ltd v Comr of Income Tax, West Bengal AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954
SC 149] [LNIND 1954 SC 149], the Supreme Court held that the principles of natural justice were violated by the refusal of the
Income Tax Appellate Tribunal to look into the account books produced by the taxpayer which he did not have the opportunity
to produce earlier owing to reasons beyond his control.
3 Malik Ram v State of Rajasthan AIR 1961 SC 1575 [LNIND 1961 SC 174] [LNIND 1961 SC 174] [LNIND 1961 SC 174], Malik
Ram v State of Rajasthan [1962] 1 SCR 978 [LNIND 1961 SC 174] [LNIND 1961 SC 174] [LNIND 1961 SC 174] (the question
related to the scope of the inquiry under Motor Vehicles Act 1939 s 68D; the inquiry officer ruled that the scope of the inquiry
was confined only to hearing of arguments and no more and consequently, he rejected the appellant's request for leading
evidence; the Supreme Court held that the purpose of the inquiry was to enable the state government to satisfy that the scheme
framed under the concerned section was for the purpose of providing an efficient, adequate, economical and properly
co-ordinated road transport service; for this purpose, materials were needed to reach the conclusion and so the hearing
envisaged not merely an argument but also evidence which either party might desire to produce and which might be necessary
for the state government to reach the conclusion regarding the objection to the draft scheme). See also Murari Mohan Deb v
Secretary, Govt of India AIR 1985 SC 931 [LNIND 1985 SC 119] [LNIND 1985 SC 119] [LNIND 1985 SC 119]; Dhakeshwari
Cotton Mills Ltd v Comr of Income Tax, West Bengal AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND
1954 SC 149].
4 See note 3 above.
5 Capital Multipurpose Co operative Societies v State of Madhya Pradesh AIR 1967 SC 1815 [LNIND 1967 SC 399] [LNIND
1967 SC 399] [LNIND 1967 SC 399], Capital Multipurpose Co operative Societies v State of Madhya Pradesh [1967] 3 SCR
6 Nehru Motor Transport Co op Society Ltd v State of Rajasthan AIR 1963 SC 1098 [LNIND 1962 SC 432] [LNIND 1962 SC
432] [LNIND 1962 SC 432], Nehru Motor Transport Co op Society Ltd v State of Rajasthan [1964] 1 SCR 220 [LNIND 1962 SC
432] [LNIND 1962 SC 432] [LNIND 1962 SC 432].
7 Saraswati Devi v State of Uttar Pradesh AIR 1981 SC 660 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC
435], Saraswati Devi v State of Uttar Pradesh (1980) 4 SCC 738 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC
435].
8 Saraswati Devi v State of Uttar Pradesh AIR 1981 SC 660 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC
435], Saraswati Devi v State of Uttar Pradesh (1980) 4 SCC 738 [LNIND 1980 SC 435] [LNIND 1980 SC 435] [LNIND 1980 SC
435]; Capital Multipurpose Co operative Societies v State of Madhya Pradesh AIR 1967 SC 1815 [LNIND 1967 SC 399]
[LNIND 1967 SC 399] [LNIND 1967 SC 399], Capital Multipurpose Co operative Societies v State of Madhya Pradesh [1967] 3
9 Navtej Singh v Satish Kumar Khurana AIR 1989 SC 1758, Navtej Singh v Satish Kumar Khurana (1989) 3 SCC 418.

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/F. CROSS
EXAMINATION/[005.062] Opportunity to cross examine
[005.062] Opportunity to cross examine Whether an opportunity of cross-examination is to be given or not

depends upon the circumstances of each case and the statute under which the hearing is being held. The
concept of natural justice being flexible, in some situations, denial of cross examination may, in itself
constitute denial of natural justice while it may not be so in other situations1.
The right of cross-examination has come to be regarded as an essential content of natural justice in:
(1) an inquiry by the employer for taking disciplinary action against the employees in the area of
labour management relations2;
(2) disciplinary proceedings initiated by the government against civil servants3;
(3) a statutory corporation against its employees4; and
110 110
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(4) certain tax cases5.
Generally, when there is an oral hearing6 and witnesses are examined against a person, he has a right to
cross-examine the witnesses. If he demands such a right and the same is refused, it may amount to
miscarriage of natural justice7. However, courts have recognised certain exceptions where right to
cross-examine may be refused without resulting in denial of natural justice8.
There may be special circumstances when it may not be expedient to confront the witnesses with the person
against whom they are testifying. The identity of the witnesses may have to be kept confidential because
there may be a danger to their person or property9. In preventive detention cases, cross-examination of
witnesses testifying against the detenu may be denied. The reason is that the advisory board does not have
to decide whether the detenu is guilty of any offence or not; it only considers the question whether there is a
sufficient cause for detaining him. The detention is based on the subjective satisfaction of the detaining
authority. Further, in such cases, witnesses are unwilling to testify and the sources of information cannot be
disclosed without injury to public interest10. There may be situations where cross-examination may be
embarrassing and delicate for the witnesses and the court may wish to avoid such a situation11. It may be
necessary to keep the identity of the witnesses confidential in the interest of their safety12.
In cases where cross-examination of witness is permitted, it is not necessary to follow the procedure laid
down in the Indian Evidence Act 1872 for the purpose. It is sufficient if the party is given an adequate
opportunity of cross-examination.
If the party concerned does not demand a cross-examination of witnesses testifying against him, he cannot
later say that he was not given an opportunity to do so13.
1 Rohtas Industries Ltd v Workmen represented by Rohtas Industries Mazdoor Sangh AIR 1977 SC 1867, Rohtas Industries
Ltd v Workmen represented by Rohtas Industries Mazdoor Sangh (1977) 2 SCC 153, Rohtas Industries Ltd v Workmen
represented by Rohtas Industries Mazdoor Sangh (1977) Lab IC 1190 (refusal of opportunity to opposite party to examine
witnesses was found to be against the principles of natural justice).
2 Phulbari Tea Estate v Its Workmen AIR 1959 SC 1111 [LNIND 1959 SC 102] [LNIND 1959 SC 102] [LNIND 1959 SC 102];
Central Bank of India Ltd v Karunamoy Banerjee AIR 1968 SC 266 [LNIND 1967 SC 234] [LNIND 1967 SC 234] [LNIND 1967
SC 234], Central Bank of India Ltd v Karunamoy Banerjee [1968] 1 SCR 251 [LNIND 1967 SC 234] [LNIND 1967 SC 234]
[LNIND 1967 SC 234], Central Bank of India Ltd v Karunamoy Banerjee (1968) Lab IC 219 [LNIND 1967 SC 234] [LNIND 1967
SC 234] [LNIND 1967 SC 234]; Meenglas Tea Estate v Their Workmen AIR 1963 SC 1719 [LNIND 1963 SC 50] [LNIND 1963
SC 50] [LNIND 1963 SC 50].
3 Khem Chand v Union of India AIR 1958 SC 300 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138], Khem
Chand v Union of India [1958] SCR 1080 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138], Khem Chand v
Union of India (1958) SCJ 497 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138]; State of Madhya Pradesh v
Chintaman Sadashiva Vaishampayam AIR 1961 SC 1623, State of Madhya Pradesh v Chintaman Sadashiva Vaishampayam
(1961) Jab LJ 702; Union of India v TR Varma AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC
91], Union of India v TR Varma (1958) SCJ 142, Union of India v TR Varma (1958) All LJ 126; State of Mysore v Shivabasappa
Shivappa Makapur AIR 1963 SC 375 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214], State of Mysore v
Shivabasappa Shivappa Makapur [1963] 2 SCR 943 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214], State
of Mysore v Shivabasappa Shivappa Makapur (1964) 1 LLJ 24.
4 The Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narain Vajpayee AIR 1980 SC 840 [LNIND 1980 SC 13]
(1980) 3 SCC 459 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13], The Managing Director, Uttar Pradesh
Warehousing Corpn v Vijay Narain Vajpayee (1980) 1 SCWR 381 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC
13] (a dismissed employee of a statutory corporation was denied an opportunity to lead evidence in his defence and he was not
allowed to cross examine certain witnesses whose statements were not recorded by the inquiry officer in his presence; this
amounted to a denial of natural justice to him and so the order of dismissal was set aside).
5 Kishinchand Chellaram v The Comr of Income Tax, Bombay City II, Bombay AIR 1980 SC 2117 [LNIND 1980 SC 385]
[LNIND 1980 SC 385] [LNIND 1980 SC 385](when the income tax officer was relying on a letter said to have been written by the
manager of the bank to the ITO, it was necessary to produce the letter before the assessee and provide an opportunity to the
assessee to cross examine the manager with reference to his statement in the said letter); State of Kerala v K T Shaduli,
Grocery Dealer AIR 1977 SC 1627 [LNIND 1977 SC 133] [LNIND 1977 SC 133] [LNIND 1977 SC 133], State of Kerala v K T
Shaduli, Grocery Dealer (1977) 2 SCC 777 [LNIND 1977 SC 133] [LNIND 1977 SC 133] [LNIND 1977 SC 133], State of Kerala
v K T Shaduli, Grocery Dealer (1977) 2 SCJ 233 (the cross examination by the assessee of the witnesses on whose evidence
111 111
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the tax assessing officer was depending to hold the assessee's return to be inaccurate was compulsory; that denial by tax
assessment officer to the tax payer an opportunity to cross examine witnesses testifying against him, amounted to an infraction
of the taxpayer's rights).
6 As to hearing as an essential part of the rule of audi alteram partem see [005.058].
7 Kamalendu Prasad Pudhi v Sambalpur University AIR 1976 Ori 134 [LNIND 1975 ORI 79] [LNIND 1975 ORI 79] [LNIND
1975 ORI 79], Kamalendu Prasad Pudhi v Sambalpur University (1976) ILR Cut 109 (there is a denial of natural justice if the
right of cross-examining witnesses is refused when demanded).
See also KL Tripathi v State Bank of India AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC
283], KL Tripathi v State Bank of India (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL
Tripathi v State Bank of India (1984) 1 SCWR 150 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283] (if the
credibility of a person who has testified or given some information is in doubt or if the version or the statement of the person
who has testified is in dispute, right of cross examination must inevitably form part of fair play in action but where there is no lis
regarding the facts, there is no requirements of cross examination to be fulfilled to justify fair play in action); Ram Narayan
Kishori v University of Calcutta AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND 1981 CAL 284], Ram
Narayan Kishori v University of Calcutta (1982) 86 Cal WN 146.
8 Cross examination of witnesses has been held to be not necessary in the following cases: KL Tripathi v State Bank of India
AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL Tripathi v State Bank of India (1984) 1
SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL Tripathi v State Bank of India (1984) 1 SCWR
150 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]; State of Jammu and Kashmir v Bakshi Gulam Mohd
AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND 1966 SC 139], State of Jammu and Kashmir v Bakshi
Gulam Mohd [1966] Supp SCR 403 (the Government of Jammu and Kashmir appointed a commission of inquiry to enquire into
certain charges of corruption and maladministration against the ex Chief Minister of the state; a number of persons swore
affidavits before the commission supporting the allegations against him; he claimed a right to cross examine the persons on the
basis of natural justice; a case where no oral hearing is held and only written statements are called for from the affected party,
there is no right of cross examination of witnesses; where there is no dispute as to facts, denial of cross examination of
witnesses does not infringe natural justice); Kanungo & Co v Collector of Customs AIR 1972 SC 2136, Kanungo & Co v
Collector of Customs (1973) 2 SCC 438; Dev Pal Singh v Vice Chancellor, GB Pant University of Agriculture and Technology,
Nainital AIR 1992 All 163 [LNIND 1991 ALL 377] [LNIND 1991 ALL 377] [LNIND 1991 ALL 377], Dev Pal Singh v Vice
Chancellor, GB Pant University of Agriculture and Technology, Nainital (1992) Lab IC 996 [LNIND 1991 ALL 520] [LNIND 1991
ALL 520] [LNIND 1991 ALL 520]; Narendra Narain Misra v The Vice Chanceller, Gorakhpur University AIR 1975 All 290.
9 Gurbachan Singh v State of Bombay AIR 1952 SC 221 [LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31],
Gurbachan Singh v State of Bombay [1952] SCR 737 [LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31] (denial of
cross examination of witnesses does not make the procedure unreasonable as the witnesses may not like to come in the open
to depose against bad characters due to fear of violation of their person or property, if they are confronted with the person
against whom proceedings are sought to be taken).
See also Hari Khemu Gawali v Dy Comr of Police, Bombay AIR 1956 SC 559 [LNIND 1956 SC 42] [LNIND 1956 SC 42]
[LNIND 1956 SC 42]; Bhagubai Dullabhbhai Bhandari v District Magistrate, Thana AIR 1956 SC 585 [LNIND 1956 SC 43]
[LNIND 1956 SC 43] [LNIND 1956 SC 43]; R v Gaming Board for Great Britain, exp Benaim and Khaida [1970] 2 QB 417, R v
Gaming Board for Great Britain, exp Benaim and Khaida [1970] 2 All ER 528 CA,.
10 AK Roy v Union of India (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469].
11 Hira Nath Mishra v Principal, Rajendra Medical College, Ranchi AIR 1973 SC 1260 [LNIND 1973 SC 113] [LNIND 1973 SC
113] [LNIND 1973 SC 113], Hira Nath Mishra v Principal, Rajendra Medical College, Ranchi (1973) 1 SCC 805 [LNIND 1973
SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113] (some male students of a medical college entered the girls hostel and
indulged in indecent behaviour towards some girl students; an inquiry committee was appointed to enquire into the incident; the
committee examined the complainants and those students against whom complaints were made; the statements of the girl
students were not recorded in the presence of the boys; on the report of the committee, four students were expelled from the
college; they challenged the expulsion order on the ground of failure of natural justice that they were not given an opportunity to
cross examine the girl students testifying against them; the Supreme Court rejected this contention saying that the girl students
could not make their statements in the presence of the miscreants because if they did so, they would have exposed themselves
to retaliation and harassment by the expelled male students thereafter; it was necessary to hold the inquiry in such manner that
while the girl students were not exposed to harassment by the male students, they would secure a reasonable opportunity to
state their case; the inquiry fulfilled the requirements of natural justice); Sudhir Kumar Suri v Principal, Mahakoshal Arts
Mahavidyalaya, Jabalpur AIR 1973 MP 278 [LNIND 1973 MP 43] [LNIND 1973 MP 43] [LNIND 1973 MP 43](a lady lecturer in a
college complained against the behaviour of a male student; an inquiry committee consisting of three professors was appointed;
the committee read over the complaint to the student and gave opportunity to produce his defence; on the committee's report,
the student was rusticated from the college; he challenged the order on the ground that the complainant was not examined in
his presence and that he was not given an opportunity to cross examine her; the court held that there was no violation of natural
justice in the facts and circumstances of the case).
v TR Varma (1958) SCJ 142, Union of India v TR Varma (1958) All LJ 126; Gurbachan Singh v State of Bombay AIR 1952 SC
221 [LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31], Gurbachan Singh v State of Bombay [1952] SCR 737
112 112
Page
[LNIND 1952 SC 31] [LNIND 1952 SC 31] [LNIND 1952 SC 31] (in a situation when a bad character is being externed,
witnesses may not be brought face to face with him with a view to protect their person or property, so denial of cross
examination may be justified).
13 KL Tripathi v State Bank of India AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL
Tripathi v State Bank of India (1984) 1 SCC 43 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL Tripathi
v State Bank of India (1984) 1 SCWR 150 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283] (the party who
does not want to controvert the veracity of the evidence gathered behind his back cannot expect to succeed in any subsequent
demand that there was no opportunity of cross examination specially when it was not asked for and there was no dispute about
the veracity of the statement; where there is no dispute as to the facts or the weight to be attached on disputed facts but only an
explanation of the facts, absence of opportunity to cross examination does not create any prejudice in such cases). See also
Ceylon University v Fernando [1960] 1 All ER 631 at 637-638, Ceylon University v Fernando [1960] 1 WLR 223 at 231-232 PC,.

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(1) AUDI ALTERAM PARTEM/G. RIGHT
TO COUNSEL/[005.063] Generally
[005.063] Generally The right to be heard would cease to have meaning if counsel were not allowed to
appear on behalf of a party for not everyone is articulate enough to present his own case before an
adjudicator. An unaided individual may be at a disadvantage as he may not be able to stand against an
expert and aided administrator; he may not be able to properly expound the law or may be illiterate or
nervous1.
When a matter involves complicated questions of law and fact or involves presentation of elaborate
evidence, the non-appearance of a lawyer may result in injustice. A lawyer can help delineate the issues,
present the factual contentions in an ordinary manner, cross-examine witnesses and otherwise safeguard
the interests of the party concerned2.
Earlier, the judicial approach was hesitant in the matter of granting representation through a counsel if the
relevant statute was silent on the point. The view taken was that representation through a counsel was not
an inevitable part of natural justice and was not claimable as a matter of right. It was regarded more of an
exception rather than the general rule3. Presently, the situation is that where complicated questions of law
and fact arise in an adjudicatory proceeding or where elaborate evidence is to be presented and the party
himself is not equal to the task of coping up with the situation effectively, denial of legal representation may
amount to a denial of natural justice4. Where, however, there is no legal complexity in the case, no oral
testimony is to be recorded or where the individual himself is qualified to handle the case, refusal of a
counsel to him may not amount to violation of natural justice5.
In disciplinary proceedings against the students, legal representation has been invariably denied6. The
question of legal representation is therefore, to be decided in the context of the specific factual situation in
each case. In some situations the court may make the requirement of legal representation mandatory,
leaving no discretion with the adjudicator. A few statutes like the Industrial Disputes Act 1947, specifically bar
legal practitioners from appearing before adjudicative bodies, except under certain conditions7, while certain
other statutes recognise the right of being represented through a lawyer8.
In the case of disciplinary proceedings against civil servants, rules provide that a civil servant may not
engage a legal practitioner at the inquiry, unless the disciplinary authority, having regard to the
circumstances of the case, so permits. It is for the inquiry officer to permit legal representation to the
delinquent civil servant9. However, in certain circumstances, refusal by the inquiry officer to permit legal
representation to the employee may be challenged in a court on the ground of denial of natural justice as for
example when he is pitted against a trained prosecutor10.
The Constitution of India denies the right to counsel to a detenu in preventive detention proceedings11.
Nevertheless, the advisory board may permit legal representation to a detenu depending on the facts and
circumstances of the case12. However, if the government or the detaining authority was represented through
113 113
Page
a legal practitioner or legal advisor before the advisory board, the detenu will always have such a right13. If a
statute puts an embargo on the appearance of a legal practitioner, the detenu must not be prevented to seek
the assistance of a friend who, in truth and substance, is not a legal practitioner. Every person whose interest
is adversely affected, as a result of the proceedings that have a serious import, is entitled to be heard in
those proceedings and be assisted by a friend. The advisory board must grant this facility whenever
demanded. Even when the detaining authority is not represented before the advisory board by a lawyer, the
detenu must be allowed the assistance of a friend because a detenu, who is taken straight from his cell to
the Board's room may lack the ease and composure to represent his point of view. He may be tongue tied,
nervous, confused or wanting in intelligence14.
The same approach may be seen in the area of disciplinary proceedings against employees of statutory
authorities and public servants. Where a trained prosecutor is appearing against the delinquent public
servant, refusal to permit him to engage a lawyer may amount to denial of natural justice. It is not necessary
for the employee to make a request to the inquiry officer for being represented by a lawyer; the inquiry officer
must enquire from the employee before the commencement of the inquiry whether he would like to take the
assistance of a legal practitioner whenever he finds that the employer has appointed a person trained in law
as the presenting officer15. If a trained prosecutor is handling the case against a government servant, though
not a legal practitioner, it may be regarded as a good ground for allowing the employee to engage a legal
practitioner to prevent the scales being weighed against him16.
A belated request to be represented by a lawyer may be denied. A request is belated if it is made after the
defence witnesses have been examined and the case has reached the stage of argument17. However, the
request may not be regarded as belated if only one out of 25 witnesses of the employer have been examined
and the second is in the process of examination18.
When a person is being interrogated by the Customs or Foreign Exchange Regulation Act 1973 (FERA)
authorities, the presence of a lawyer is not necessary19.
1 Allen, 'Administration Jurisdiction' (1956)p 79.
2 Pett v Greyhound Racing Association (No 2) [1970] 1 QB 46 at 63-66, Pett v Greyhound Racing Association (No 2) [1969] 2
All ER 221 (the right to legal representation was unanimously upheld before a tribunal enquiring into matters affecting a man's
reputation or livelihood or any matter of serious import at least where there is a right to an oral hearing; this was on the principle
that what a person could himself do, he could get it done by his agent and a legal practitioner would only be his agent); R v
Secretary of State for the Home Department, ex p Tarrant [1985] QB 251 at 285, R v Secretary of State for the Home
Department, ex p Tarrant [1984] 1 All ER 799 at 816 DC, (the court allowed legal representation to prisoners in disciplinary
proceedings because some of the charges laid against them raised difficult issues of interpretation and the others involved
severe penalties). See contra Enderby Town Football Club Ltd v Football Association Ltd [1971] Ch 591, Enderby Town
Football Club Ltd v Football Association Ltd [1971] 1 All ER 215 CA, (the court held that there was no absolute right to legal
representation; it was a matter for the discretion of the adjudicator; however, the adjudicator could not lay down an absolute rule
against legal representation; he must be willing to permit it in an exceptional case); Fraser v Mudge [1975] 3 All ER 78, Fraser
v Mudge [1975] 1 WLR 1132 CA,; Selvarajan v Race Relations Board [1976] 1 All ER 12 at 24, Selvarajan v Race Relations
Board [1975] 1 WLR 1686 at 1700 CA,; R v Board of Visitors of the Maze Prison, ex p Hone [1988] AC 379, R v Board of
Visitors of the Maze Prison, ex p Hone [1988] 1 All ER 321 HL, (a prisoner could not claim legal representation in a disciplinary
proceeding as of right even when the charge laid against him constituted a crime in law; the matter of permitting legal
representation is one of discretion with the board of visitors; everything must depend on the circumstances of the particular
case).
3 N Kalandi v Tata Locomotive and Engineering Co Ltd, Jamshedpur AIR 1960 SC 914 [LNIND 1960 SC 95] [LNIND 1960 SC
95] [LNIND 1960 SC 95], N Kalandi v Tata Locomotive and Engineering Co Ltd, Jamshedpur (1961) 1 SCJ 47 [LNIND 1960 SC
95] [LNIND 1960 SC 95] [LNIND 1960 SC 95], N Kalandi v Tata Locomotive and Engineering Co Ltd, Jamshedpur [1960] 3
SCR 407 [LNIND 1960 SC 95] [LNIND 1960 SC 95] [LNIND 1960 SC 95]; HC Sarin v Union of India AIR 1976 SC 1686 [LNIND
1976 SC 176] [LNIND 1976 SC 176] [LNIND 1976 SC 176], HC Sarin v Union of India (1976) 4 SCC 765 [LNIND 1976 SC 176]
[LNIND 1976 SC 176] [LNIND 1976 SC 176], HC Sarin v Union of India (1976) 2 SCWR 221 [LNIND 1976 SC 176] [LNIND
1976 SC 176] [LNIND 1976 SC 176]; CL Subramaniam v Collector of Customs AIR 1972 SC 2178, CL Subramaniam v
Collector of Customs (1972) 3 SCC 542; KC Cyriac v Vice Chancellor AIR 1975 Ker 175 [LNIND 1975 KER 51] [LNIND 1975
KER 51] [LNIND 1975 KER 51]; Narayan Das v State AIR 1968 Ori 14 [LNIND 1967 ORI 13] [LNIND 1967 ORI 13] [LNIND
1967 ORI 13].
4 Zonal Manager, Life Insurance Corporation of India, Central Zonal Office, Kanpur v City Munsif, Meerut AIR 1968 All 270
[LNIND 1967 ALL 39] [LNIND 1967 ALL 39] [LNIND 1967 ALL 39]; NN Bagchi v Chief Secretary, West Bengal AIR 1961 Cal 1
114 114
Page
[LNIND 1960 CAL 125] [LNIND 1960 CAL 125] [LNIND 1960 CAL 125].
5 Sunil Kumar Banerjee v State of West Bengal AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980
SC 136], Sunil Kumar Banerjee v State of West Bengal (1980) 3 SCC 304 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND
1980 SC 136], Sunil Kumar Banerjee v State of West Bengal (1980) 2 SCJ 332 [LNIND 1980 SC 96] [LNIND 1980 SC 96]
[LNIND 1980 SC 96]; Krishna Chandra Tandon v Union of India AIR 1974 SC 1589, Krishna Chandra Tandon v Union of India
(1974) 4 SCC 374, Krishna Chandra Tandon v Union of India (1974) 1 SLR 178.
6 K S Cyriac v Vice Chancellor, Kerela University, Trivandrum AIR 1975 Ker 158 [LNIND 1974 KER 41] [LNIND 1974 KER 41]
[LNIND 1974 KER 41], K S Cyriac v Vice Chancellor, Kerela University, Trivandrum (1974) ILR 1 Ker 459, K S Cyriac v Vice
Chancellor, Kerela University, Trivandrum (1974) Ker LT 504 [LNIND 1974 KER 41] [LNIND 1974 KER 41] [LNIND 1974 KER
41]. See also Johnney D'Cuoto v State of Tamil Nadu AIR 1988 SC 109, Johnney D'Cuoto v State of Tamil Nadu (1988) 1 SCC
116, Johnney D'Cuoto v State of Tamil Nadu (1988) SCC (Cr) 70.
7 Under the Industrial Disputes Act 1947 ss 36(2)(a), (b)ands 36(4), a lawyer can appear before an industrial tribunal only if he
is holding an office as laid down in the section or with the consent of the parties and with the leave of the industrial tribunal:
Paradip Port Trust, Paradip v Their Workmen AIR 1977 SC 36 [LNIND 1976 SC 320] [LNIND 1976 SC 320] [LNIND 1976 SC
320], Paradip Port Trust, Paradip v Their Workmen (1977) 2 SCC 339) [LNIND 1976 SC 320] [LNIND 1976 SC 320] [LNIND
1976 SC 320], Paradip Port Trust, Paradip v Their Workmen [1977] 1 SCR 537 [LNIND 1976 SC 320] [LNIND 1976 SC 320]
[LNIND 1976 SC 320] (with the consent of the parties and with the leave of the industrial tribunal are cumulative conditions and
not in the alternative).
8 See the Income Tax Act 1961 s 282.
9 Central Civil Services (Classification, Control and Appeal) Rules 1957 r 15(5) provides that a government servant may not
engage a lawyer at an inquiry, unless the disciplinary authority having regard to the circumstances of the case so permits. See
Krishna Chandra Tandon v Union of India AIR 1974 SC 1589, Krishna Chandra Tandon v Union of India (1974) 4 SCC 374,
Krishna Chandra Tandon v Union of India (1974) 1 SLR 178.
10 CL Subramaniam v Collector of Customs AIR 1972 SC 2178, CL Subramaniam v Collector of Customs (1972) 3 SCC 542.
11 See the Constitution of India art 22(3)(b) (see generally[80]CONSTITUTIONAL LAW).
12 Kavita v State of Maharashtra AIR 1981 SC 1641 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313],
Kavita v State of Maharashtra (1981) 3 SCC 558 [LNIND 1981 SC 313] [LNIND 1981 SC 313] [LNIND 1981 SC 313] (when a
detenu makes a request for legal representation to the advisory board, his request has to be considered on its own merits;
whether or not legal assistance be afforded to the detenu depends on the facts and circumstances of each case). See also
Hemlata Kantilal Shah v State of Maharashtra AIR 1982 SC 8 [LNIND 1981 SC 422] [LNIND 1981 SC 422] [LNIND 1981 SC
422], Hemlata Kantilal Shah v State of Maharashtra (1981) 4 SCC 647 [LNIND 1981 SC 422] [LNIND 1981 SC 422] [LNIND
1981 SC 422].
13 See the Constitution of India arts 14 and 21 (see generally[80]CONSTITUTIONAL LAW). See Johnney D'Cuoto v State of
Tamil Nadu AIR 1988 SC 109, Johnney D'Cuoto v State of Tamil Nadu (1988) 1 SCC 116, Johnney D'Cuoto v State of Tamil
Nadu (1988) SCC (Cr) 70 (that the advisory board was wrong in rejecting detenu's request as he had a right to be represented
by a friend; the term 'friend' does not only mean one who is well known but also one who is an ally in a fight or cause supporter;
a person not being a friend in the normal sense could be picked up for rendering assistance before the advisory board; also,
since the authority had the assistance of high excise officials, the board had no justification to refuse detenu's request); AK Roy
v Union of India (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469] (the Court took an
expansive view of the term legal adviser and found that officers of the concerned department appeared before the board to
justify the detention order; these officers were held to fall within the category of legal advisers, as whosoever assists or advises
on facts or law must be deemed to be in a position of a legal adviser; appearance of officers before the board was taken to
amount as doing indirectly what could not be done directly; regard to the substance of the matter and not merely the form was
emphasised); Nand Lal Bajaj v State of Punjab AIR 1981 SC 2041 [LNIND 1981 SC 388] [LNIND 1981 SC 388] [LNIND 1981
SC 388], Nand Lal Bajaj v State of Punjab (1981) 4 SCC 327 [LNIND 1981 SC 388] [LNIND 1981 SC 388] [LNIND 1981 SC
388](it was held violative of the Constitution of India art 14 when the advisory board allowed the detaining authority to be
represented by a lawyer while denying such a request of the detenu; a breach of natural justice was taken to have occurred as
the adjudicatory body had allowe one side to be represented by a lawyer and denied the same to the other side).
14 Anil Vats v Union of India AIR 1991 SC 979, Anil Vats v Union of India (1991) Supp 2 SCC 661 (a detenu could not be
denied assistance of a friend before the advisory board on the ground that he was a graduate and was competent to defend
himself; the detenu may not properly be served by his memory he may be nervous, incoherent and his faculties may be
numbed; assistance of friend would result in fairness of procedure towards the detenu); JK Aggarwal v Haryana Seeds
Development Corpn Ltd AIR 1991 SC 1221, JK Aggarwal v Haryana Seeds Development Corpn Ltd (1991) 2 SCC 283; State
of Andhra Pradesh v Bala Jangam Subbarajamma AIR 1989 SC 389 [LNIND 1988 SC 524] [LNIND 1988 SC 524] [LNIND 1988
SC 524], State of Andhra Pradesh v Bala Jangam Subbarajamma (1989) 1 SCC 189, State of Andhra Pradesh v Bala Jangam
Subbarajamma [1988] Supp 3 SCR 620 (the advisory board heard several top ranking police officers in support of the detention
order against the detenu, however, his request for representation by a lawyer was rejected; the Supreme Court quashed the
detention order saying and stated that it was important for laws and authorities not only to be just but also appear to be just and
that the advisory board must avoid the action that gives the appearance of unequal treatment or unreasonableness; the board
ought to have permitted the detenu to have the assistance of a friend who could have made an equally effective representation
on his side as the government and police department did); Board of Trustees of the Port of Bombay v Dilipkumar Raghavendra
115 115
Page
Nath Nadkarni AIR 1983 SC 109 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167], Board of Trustees of the
Port of Bombay v Dilipkumar Raghavendra Nath Nadkarni (1983) 1 SCC 124 [LNIND 1982 SC 167] [LNIND 1982 SC 167]
[LNIND 1982 SC 167] (where in an inquiry before a domestic tribunal if the delinquent officer is pitted against a legally trained
mind and he seeks permission to appear through a legal practitioner, the refusal to grant this request would amount to denial of
a reasonable request to defend himself and the essential principles of natural justice would be violated); AK Roy v Union of
India (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469]; CL Subramaniam v Collector of
Customs AIR 1972 SC 2178, CL Subramaniam v Collector of Customs (1972) 3 SCC 542. See contra Krishna Chandra
Tandon v Union of India AIR 1974 SC 1589, Krishna Chandra Tandon v Union of India (1974) 4 SCC 374 (in a disciplinary
inquiry against a civil servant, the Supreme Court ruled that refusal of lawyer's aid to the petitioner did not constitute an infirmity
in the context of the factual position for the following reasons: (1) under the rules, he was not entitled to the assistance of an
advocate during the inquiry; (2) there was no oral evidence to be recorded at the inquiry and so there was no need of a lawyer
to cross examine witnesses; (3) there was no complexity in the case and the absence of a lawyer did not deprive the appellant
of a reasonable opportunity to defend himself).
15 Board of Trustees of the Port of Bombay v Dilipkumar Raghavendra Nath Nadkarni AIR 1983 SC 109 [LNIND 1982 SC 167]
[LNIND 1982 SC 167] [LNIND 1982 SC 167], Board of Trustees of the Port of Bombay v Dilipkumar Raghavendra Nath
Nadkarni (1983) 1 SCC 124 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167]; Bhagat Ram v State of
Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35], Bhagat Ram v State of
Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35] (the inquiry officer must
inform the delinquent civil servant that he is entitled to be represented by another civil servant of his choice, where the
department is represented by a presenting officer and particularly where the delinquent servant is a class-IV employee).
16 CL Subramaniam v Collector of Customs AIR 1972 SC 2178, CL Subramaniam v Collector of Customs (1972) 3 SCC 542.
[LNIND 1980 SC 96].
18 AK Roy v Union of India (1982) 1 SCC 271 [LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469].
19 Poolpandi v Supdt, Central Excise AIR 1992 SC 1795 [LNIND 1992 SC 405] [LNIND 1992 SC 405] [LNIND 1992 SC 405],
Poolpandi v Supdt, Central Excise (1992) 3 SCC 259 [LNIND 1992 SC 405] [LNIND 1992 SC 405] [LNIND 1992 SC 405](the
concerned person cannot be regarded as an accused so as to attract the protection of the Constitution of India art 20(3), nor
does it violate the norm of just, fair and reasonable procedure under the Constitution of India art 21).

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(2) REASONED DECISIONS/[005.064]
Generally
[005.064] Generally Earlier, adjudicatory bodies were not obligated to give reasons in support of their
decisions. However, now giving of reasons is considered to be one of the fundamentals of good
administration1.
The condition to give reasons introduces clarity and transparency in administration and minimises
arbitrariness for compulsion of disclosure2 guarantees consideration3. Reasoned decisions by adjudicatory
bodies promote public confidence in the administrative process4. The recording of reasons ensures that the
authority applies its mind to the case and the reasons that impelled the authority to take the decision in
question are germane to the content and scope of the power vested in the authority. If the reasons recorded
are totally irrelevant, the exercise of power will be void5.
When a statute imposes the requirement of giving reasons for taking a decision, the provision is treated as
mandatory and the failure to give reasons would thus be fatal to the action taken6. However, it is not often
that statutes impose such a condition. To cover such a situation, the courts in India have spelled out a
general obligation for adjudicatory bodies to give reasons for their decisions partly to satisfy the principles of
natural justice and partly on account of constitutional provisions concerning judicial review7. Generally the
courts do not exercise their supervisory role over adjudicatory bodies if they do not give reasons for their
decisions8.
Moreover, under some laws, decisions of one adjudicatory body are appealable to or subject to revision by a
116 116
Page
higher authority. If the lower authority does not make a speaking order, the party affected is at a loss to
effectively exercise its right to approach the higher authority. Failure to give reasons amounts, in substance,
to depriving the party of the right of appeal or revision9.
Accordingly, the proposition in now firmly established that an adjudicatory authority is to give reasons for its
decision10. The rule requiring reasons to be given in support of an adjudicatory order is a basic principle of
natural justice which must inform the quasi-judicial process. It must be observed in its proper spirit and mere
pretence of compliance with it would not satisfy the requirements of law11. In cases of disciplinary action
against professionals, like advocates, chartered accountants, reasoned orders are mandatory12. Orders may
be declared as bad on account of non-communication of reasons and they may not be saved by showing
that the reasons existed on file13.
1 See [005.302].
2 As to disclosure of materials as an essential part of the rule of audi alteram partem see [005.060].
3 R v Gaming Board for Great Britain, ex p Benaim and Khaida [1970] 2 QB 417, R v Gaming Board for Great Britain, ex p
Benaim and Khaida [1970] 2 All ER 528 CA,; Mcinnes v Onslow Fane [1978] 3 All ER 211 at 224, Mcinnes v Onslow Fane
[1978] 1 WLR 1520.
4 Madhya Pradesh Industries Ltd v Union of India AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965
SC 190], Madhya Pradesh Industries Ltd v Union of India [1996] 1 SCR 466 [LNIND 1996 SC 92] [LNIND 1996 SC 92] [LNIND
1996 SC 92], Madhya Pradesh Industries Ltd v Union of India (1996) 1 SCJ 204; Ram Chander v Union of India AIR 1986 SC
1175, Ram Chander v Union of India (1986) 3 SCC 103 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169],
Ram Chander v Union of India [1986] 2 SCR 980 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169]
Woolcombers of India Ltd v Woolcombers Workers' Union AIR 1973 SC 2758 [LNIND 1973 SC 251] [LNIND 1973 SC 251]
[LNIND 1973 SC 251], Woolcombers of India Ltd v Woolcombers Workers' Union (1974) 3 SCC 318 [LNIND 1973 SC 251]
[LNIND 1973 SC 251] [LNIND 1973 SC 251], Woolcombers of India Ltd v Woolcombers Workers' Union [1974] 1 SCR 504
5 Collector of Monghyr v Keshav Prasad Goenka AIR 1962 SC 1694 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND 1962
SC 136], Collector of Monghyr v Keshav Prasad Goenka [1963] 1 SCR 98 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND
1962 SC 136]; State of West Bengal v Atul Krishna Shaw AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND 1990 SC 466]
[LNIND 1990 SC 466], State of West Bengal v Atul Krishna Shaw (1991) Supp 1 SCC 414, State of West Bengal v Atul Krishna
Shaw [1990] Supp SCR 91. See also KS Abdullah v District Collector AIR 1972 Ker 202 [LNIND 1971 KER 258] [LNIND 1971
KER 258] [LNIND 1971 KER 258], KS Abdullah v District Collector (1972) ILR 1 Ker 213, KS Abdullah v District Collector (1972)
Ker LJ 347; Sudhanshu Sekhar Roy v Regional Transport Authority, Howrah AIR 1964 Cal 344 [LNIND 1963 CAL 163] [LNIND
1963 CAL 163] [LNIND 1963 CAL 163].
6 Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]at 625
(under the Passport Act 1963, the authority is required to record its reasons and furnish a copy of the same to the concerned
individual on demand while impounding his passport; the authority may refuse to give reasons in public interest amongst other
grounds; however, it was held that the authority is not the final one in determining the question whether non disclosure of
reasons in a particular case is in public interest). See also Bakshi Sardari Lal v Union of India AIR 1987 SC 2106 [LNIND 1987
SC 532] [LNIND 1987 SC 532] [LNIND 1987 SC 532], Bakshi Sardari Lal v Union of India (1987) 4 SCC 114 [LNIND 1987 SC
532] [LNIND 1987 SC 532] [LNIND 1987 SC 532], Bakshi Sardari Lal v Union of India (1987) 2 Cur CC 723 (the reason has to
be recorded if not communicated to suffice the requirements of law); Uma Charan v State of Madhya Pradesh AIR 1981 SC
1915 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352], Uma Charan v State of Madhya Pradesh (1981) 4
SCC 102 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352], Uma Charan v State of Madhya Pradesh [1982] 1
SCR 353
7 See the Constitution of India arts 32, 136, 226 and 227 (see generally[80]CONSTITUTIONAL LAW).
8 Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam AIR 1958 SC 398 [LNIND 1958 SC 6] [LNIND
1958 SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam (1958) SCJ 798
[LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Commissioner of Hills Division and
Appeals, Assam [1958] SCR 1240 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]; Bhagat Raja v Union of India
AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], 1610, Bhagat Raja v Union of India [1967] 3
SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], Bhagat Raja v Union of India (1967) 2 SCA 253
[LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]
9 The Manager, Govt Branch Press v DB Belliappa AIR 1979 SC 429 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND
1978 SC 364], The Manager, Govt Branch Press v DB Belliappa (1979) 1 SCC 477 [LNIND 1978 SC 364] [LNIND 1978 SC
364] [LNIND 1978 SC 364], The Manager, Govt Branch Press v DB Belliappa [1979] 2 SCR 458 [LNIND 1978 SC 364] [LNIND
1978 SC 364] [LNIND 1978 SC 364]; Mahabir Prasad Santosh Kumar v State of Uttar Pradesh AIR 1970 SC 1302 [LNIND
1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188], Mahabir Prasad Santosh Kumar v State of Uttar Pradesh (1970) 72
117 117
Page
Bom LR 342 (the license of the petitioner to deal wholesale in sugar was cancelled by the licensing authority; the appellant
applied for a copy of the order but it was not supplied to him; an appeal to the state government was also rejected without
communicating any reasons to him; the Supreme Court quashed the order both of the licensing authority as well as of the state
government for failure to give reasons; the court stated that recording of reasons by the deciding authority ensures that it
reaches its conclusions according to law and not according to caprice, whim or fancy or on grounds of policy or expediency;
there is greater need to give reasons when the order is subject to appeal, otherwise, the appellate authority has no material to
base its decision on); Jagannath Kashinath Kavalikar v Union of India AIR 1967 Del 121 [LNIND 1967 DEL 57] [LNIND 1967
DEL 57] [LNIND 1967 DEL 57]; Moti Miyan v Comr, Indore Division, Indore AIR 1960 MP 157 [LNIND 1959 MP 98] [LNIND
1959 MP 98] [LNIND 1959 MP 98], Moti Miyan v Comr, Indore Division, Indore (1960) Cr LJ 613, Moti Miyan v Comr, Indore
Division, Indore (1960) MP LJ 100.
10 Shanti Prasad Agarwalla v Union of India AIR 1991 SC 814 [LNIND 1962 SC 6] [LNIND 1962 SC 6] [LNIND 1962 SC 6],
Shanti Prasad Agarwalla v Union of India (1991) Supp 2 296; Harbhajan Singh Dhalla v Union of India AIR 1987 SC 9 [LNIND
1986 SC 420] [LNIND 1986 SC 420] [LNIND 1986 SC 420], Harbhajan Singh Dhalla v Union of India (1986) 4 SCC 678 [LNIND
1986 SC 420] [LNIND 1986 SC 420] [LNIND 1986 SC 420], Harbhajan Singh Dhalla v Union of India (1987) 1 SCJ 18 (the
Central Government must pass a reasoned order while exercising its power under Code of Civil Procedure 1908 s 86 for
granting or rejecting permission to a person to sue a foreign embassy; absence of reasons may indicate non application of mind
by the decision making authority); Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC
394] [LNIND 1986 SC 394] [LNIND 1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1987) 4 SCC 537
[LNIND 1987 SC 680] [LNIND 1987 SC 680] [LNIND 1987 SC 680], Institute of Chartered Accountants of India v L K Ratna
(1986) JT 671; Oramco Chemicals Pvt Ltd v Gwalior Rayon Silk Manufacturing (Weaving) Co Ltd AIR 1987 SC 1564, Oramco
Chemicals Pvt Ltd v Gwalior Rayon Silk Manufacturing (Weaving) Co Ltd (1987) 2 SCC 620, Oramco Chemicals Pvt Ltd v
Gwalior Rayon Silk Manufacturing (Weaving) Co Ltd (1987) 8 IJ Rep 219 (quashing the central government's order, the
Supreme Court insisted that the order must contain good reasons in its support and not merely state its bold conclusions); Anil
Kumar v Presiding Officer AIR 1985 SC 1121 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191], Anil Kumar v
Presiding Officer (1985) 3 SCC 378 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191], Anil Kumar v Presiding
Officer (1985) 2 Scale 1365 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]; Mahindra & Mahindra Ltd v
Union of India AIR 1979 SC 798 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59], Mahindra & Mahindra Ltd v
Union of India (1979) 2 SCC 529 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59], Mahindra & Mahindra Ltd v
Union of India [1979] 2 SCR 1038 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC 59]; Woolcombers of India Ltd v
Woolcombers Workers' Union AIR 1973 SC 2758 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251],
Woolcombers of India Ltd v Woolcombers Workers' Union (1974) 3 SCC 318 [LNIND 1973 SC 251] [LNIND 1973 SC 251]
[LNIND 1973 SC 251], Woolcombers of India Ltd v Woolcombers Workers' Union [1974] 1 SCR 504 [LNIND 1973 SC 251]
[LNIND 1973 SC 251] [LNIND 1973 SC 251] (an order stopping one increment with cumulative effect was quashed as it was not
a speaking order); State of Punjab v Bakhtawar Singh AIR 1972 SC 2083, State of Punjab v Bakhtawar Singh (1972) 4 SCC
730, State of Punjab v Bakhtawar Singh (1972) Serv LR 85; Narayan Das Indurkhya v State of Madhya Pradesh AIR 1972 SC
2086 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261], Narayan Das Indurkhya v State of Madhya Pradesh
(1972) 3 SCC 676 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261], Narayan Das Indurkhya v State of
Madhya Pradesh [1973] 1 SCR 392 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261]; State of Gujarat v
Krishna Cinema AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358], State of Gujarat v
Krishna Cinema (1970) 2 SCC 744 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358], State of Gujarat v
Krishna Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]; Chowgule & Co (Hind)
Pvt Ltd v Union of India AIR 1971 SC 2021, Chowgule & Co (Hind) Pvt Ltd v Union of India (1971) 3 SCC 162.
Bhagwati Prasad Sharma v Council of the Institute of Chartered Accountants of India, New Delhi AIR 1991 MP 378; Dinesh
Roller Flour Mill v Union of India AIR 1983 Pat 293, Dinesh Roller Flour Mill v Union of India (1983) BBCJ (HC) 329; Mayer
Simon Parur v Advocate General, Kerela AIR 1975 Ker 57 [LNIND 1974 KER 94] [LNIND 1974 KER 94] [LNIND 1974 KER 94],
Mayer Simon Parur v Advocate General, Kerela (1975) ILR 1 Ker 130, Mayer Simon Parur v Advocate General, Kerela (1975)
Ker LT 78 [LNIND 1974 KER 94] [LNIND 1974 KER 94] [LNIND 1974 KER 94]; Papanasam Fishermen Co op Society v
Collector, Thanjavur AIR 1975 Mad 81 [LNIND 1974 MAD 185] [LNIND 1974 MAD 185] [LNIND 1974 MAD 185], Papanasam
Fishermen Co op Society v Collector, Thanjavur (1975) 1 Mad LJ 168, Papanasam Fishermen Co op Society v Collector,
Thanjavur 87 Mad LW 723; M Pattabiraman v Accommodation Controller, Madras AIR 1972 Mad 102 [LNIND 1971 MAD 159]
[LNIND 1971 MAD 159] [LNIND 1971 MAD 159], M Pattabiraman v Accommodation Controller, Madras (1971) 2 Mad LJ 326, M
Pattabiraman v Accommodation Controller, Madras (1972) Ren CJ 270; B K Talwar v State of Haryana, through the Secy,
Health Department, Haryana Govt AIR 1971 P & H 48, B K Talwar v State of Haryana, through the Secy, Health Department,
Haryana Govt (1971) Lab IC 201, B K Talwar v State of Haryana, through the Secy, Health Department, Haryana Govt (1970)
Serv LR 732; Rajender Pal Abrol v State of Punjab through the Secy, Irrigation and Power, (PWD) Chandigarh AIR 1971 Punj
290, Rajender Pal Abrol v State of Punjab through the Secy, Irrigation and Power, (PWD) Chandigarh (1971) Serv LR 130.
11 State of West Bengal v Atul Krishna Shaw AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND 1990 SC 466] [LNIND 1990 SC
466], State of West Bengal v Atul Krishna Shaw (1991) Supp 1 SCC 414, State of West Bengal v Atul Krishna Shaw [1990]
Supp SCR 91; S N Mukherjee v Union of India AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990
SC 986], S N Mukherjee v Union of India (1990) 4 SCC 594 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986],
S N Mukherjee v Union of India [1990] Supp 1 SCR 44; Siemens Engineering and Manufacturing Co of India Ltd v Union of
India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and
Manufacturing Co of India Ltd v Union of India (1976) 2 SCC 981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC
202], Siemens Engineering and Manufacturing Co of India Ltd v Union of India (1976) 1 SCJ 116 [LNIND 1975 SC 373] [LNIND
1975 SC 373] [LNIND 1975 SC 373](a matter of assessment of customs duty passed through three stages of adjudication,
assistant collector of customs, collector and the Central Government, before finally reaching the Supreme Court by way of
appeal under the Constitution of India art 136; none of the adjudicatory bodies chose to give reasons in support of the order
118 118
Page
made by it; the Supreme Court emphasised that adjudicatory bodies must accord fair and proper hearing to the persons sought
to be affected by their orders and give sufficiently clear and explicit reasons in support of their orders). See also Anil Kumar v
Presiding Officer AIR 1985 SC 1121 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191], Anil Kumar v Presiding
Officer (1985) 3 SCC 378 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191], Anil Kumar v Presiding Officer
(1985) 2 Scale 1365 [LNIND 1985 SC 191] [LNIND 1985 SC 191] [LNIND 1985 SC 191]; Madhya Pradesh Industries Ltd v
Union of India AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190], Madhya Pradesh
Industries Ltd v Union of India [1996] 1 SCR 466 [LNIND 1996 SC 92] [LNIND 1996 SC 92] [LNIND 1996 SC 92], Madhya
Pradesh Industries Ltd v Union of India (1996) 1 SCJ 204; Hari Nagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala AIR 1961
SC 1669 [LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206], Hari Nagar Sugar Mills Ltd v Shyam Sunder
Jhunjhunwala [1962] 2 SCR 339 [LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206], Hari Nagar Sugar Mills Ltd
v Shyam Sunder Jhunjhunwala (1961) 31 Comp Cas 387.
12 Vasant D Bhavsar v Bar Council of India (1999) 1 SCC 45; Ram Chander v Union of India AIR 1986 SC 1175, Ram
Chander v Union of India (1986) 3 SCC 103 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169], Ram Chander
v Union of India [1986] 2 SCR 980 [LNIND 1986 SC 169] [LNIND 1986 SC 169] [LNIND 1986 SC 169](after the amendment of
the Constitution of India art 311(2) through the 42nd Constitutional Amendment Act, it is of the utmost importance for the
appellate authority to not only give a hearing to the government servant concerned but also pass a reasoned order dealing with
the contentions raised by him in appeal).
13 See Ajantha Industries v Central Board of Direct Taxes, New Delhi AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975
SC 831] [LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes, New Delhi (1976) 1 SCJ 435, Ajantha
Industries v Central Board of Direct Taxes, New Delhi [1976] 2 SCR 884 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND
1975 SC 831].

Exceptions
[005.065] Exceptions The requirement to give reasons may be excluded directly by law or by necessary
implication arising from the nature of the subject matter, the scheme and provisions of the relevant statute1.
The courts may refuse to intervene, where the authority passes an order that adversely affects the individual,
on the ground that the matter does not involve adjudication of facts but rests on the point of law about which
there exists no error according to the court2.
In disciplinary proceedings, where the disciplinary authority agrees with the findings of the inquiry officer, it
need not record its own reasons. However, reasons must be given when disciplinary authority differs from
the findings of the inquiry officer3. The reasons behind non-applicability of the rule to give reasons to
disciplinary proceedings have not been enunciated by courts4.
If however, the disciplinary authority agrees with the inquiry officer but for some different reasons, then it
must spell out its own reasons for accepting those findings5. Courts may sustain orders even if the reasons
given by the adjudicatory authority have not been expressly stated and are implicit6.
Under the Army Act 1950, a court martial is not required to record its reasons at the stage of recording of
findings and sentence. Reasons are required only when the court martial makes a recommendation to mercy
at such stage7.
1 State of Maharashtra v Salem Hasan Khan AIR 1989 SC 1304 [LNIND 1989 SC 145] [LNIND 1989 SC 145] [LNIND 1989 SC
145], State of Maharashtra v Salem Hasan Khan (1989) 2 SCC 316 [LNIND 1989 SC 145] [LNIND 1989 SC 145] [LNIND 1989
SC 145], State of Maharashtra v Salem Hasan Khan [1989] 1 SCR 1970 (while hearing an appeal from an externment order
made under the Bombay Police Act 1951, the state government need not give reasons for rejecting the appeal; if the authorities
were to discuss the evidence in such a case, it would be easy to fix the identity of the witnesses who can then be harassed by
the extreme or his friends).
2 Rangnath v Daulatrao AIR 1975 SC 2146 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440], Rangnath v
Daulatrao (1975) 1 SCC 686 [LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440], Rangnath v Daulatrao [1975]
119 119
Page
3 Tara Chand Khatri v Municipal Corporation of Delhi AIR 1977 SC 567 [LNIND 1976 SC 456] [LNIND 1976 SC 456] [LNIND
1976 SC 456], Tara Chand Khatri v Municipal Corporation of Delhi (1977) 1 SCC 472 [LNIND 1976 SC 456] [LNIND 1976 SC
456] [LNIND 1976 SC 456], Tara Chand Khatri v Municipal Corporation of Delhi [1977] 1 SCR 638 [LNIND 1976 SC 341]
[LNIND 1976 SC 341] [LNIND 1976 SC 341]; Som Datt Datta v Union of India AIR 1969 SC 414 [LNIND 1968 SC 286] [LNIND
1968 SC 286] [LNIND 1968 SC 286], Som Datt Datta v Union of India [1969] 2 SCR 177 [LNIND 1968 SC 286] [LNIND 1968
SC 286] [LNIND 1968 SC 286], Som Datt Datta v Union of India (1969) Cr LJ 663 (court martial not required to give reasons);
State of Madras v A R Srinivasan AIR 1966 SC 1827 [LNIND 1966 SC 72] [LNIND 1966 SC 72] [LNIND 1966 SC 72], State of
Madras v A R Srinivasan (1967) 15 FLR 104; State of Assam v Bimal Kumar Pandit AIR 1963 SC 1612 [LNIND 1963 SC 38]
[LNIND 1963 SC 38] [LNIND 1963 SC 38], State of Assam v Bimal Kumar Pandit [1964] 2 SCR 1 [LNIND 1963 SC 38] [LNIND
1963 SC 38] [LNIND 1963 SC 38], State of Assam v Bimal Kumar Pandit (1964) 2 SCJ 528 [LNIND 1963 SC 38] [LNIND 1963
SC 38] [LNIND 1963 SC 38].
4 Tara Chand Khatri v Municipal Corporation of Delhi AIR 1977 SC 567 [LNIND 1976 SC 456] [LNIND 1976 SC 456] [LNIND
1976 SC 456], Tara Chand Khatri v Municipal Corporation of Delhi (1977) 1 SCC 472 [LNIND 1976 SC 456] [LNIND 1976 SC
456] [LNIND 1976 SC 456], Tara Chand Khatri v Municipal Corporation of Delhi [1977] 1 SCR 638 [LNIND 1976 SC 341]
[LNIND 1976 SC 341] [LNIND 1976 SC 341].
5 Ram Chander v Union of India AIR 1986 SC 1175, Ram Chander v Union of India (1986) 3 SCC 103 [LNIND 1986 SC 169]
[LNIND 1986 SC 169] [LNIND 1986 SC 169], Ram Chander v Union of India [1986] 2 SCR 980 [LNIND 1986 SC 169] [LNIND
1986 SC 169] [LNIND 1986 SC 169].
6 KL Tripathi v State Bank of India AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL
v State Bank of India (1984) 1 SCWR 150 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283]. See also State
of Maharashtra v Salem Hasan Khan AIR 1989 SC 1304 [LNIND 1989 SC 145] [LNIND 1989 SC 145] [LNIND 1989 SC 145],
State of Maharashtra v Salem Hasan Khan (1989) 2 SCC 316 [LNIND 1989 SC 145] [LNIND 1989 SC 145] [LNIND 1989 SC
145], State of Maharashtra v Salem Hasan Khan [1989] 1 SCR 1970.
7 Union of India v JS Brar AIR 1993 SC 773, 776, Union of India v JS Brar (1993) 1 SCC 176, Union of India v JS Brar (1992) 6
JT 266; S N Mukherjee v Union of India AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986],
S N Mukherjee v Union of India (1990) 4 SCC 594 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986], S N
Mukherjee v Union of India [1990] Supp 1 SCR 44.

Adequacy of reasons
[005.066] Adequacy of reasons Sufficiency of reasons, in a particular case, depends on the facts of each
case. It is not necessary for the authority to write out a judgement as a court of law does1. However, at least,
an outline of process of reasoning must be given2. It may satisfy the requirement of giving reasons if relevant
reasons have been given for the order, though the authority has not set out all the reasons or some of the
reasons which had been argued before the court have not been expressly considered by the authority3. A
mere repetition of the statutory language in the order will not make the order a reasoned one4.
Mechanical and stereotype reasons are not regarded as adequate5. A speaking order is one that speaks of
the mind of the adjudicatory body which passed the order. A reason such as 'the entire examination of the
year 1982 is cancelled', cannot be regarded as adequate because the statement does explain as to why the
examination has been cancelled; it only lays down the punishment without stating the causes therefor6.
1 Bhagat Raja v Union of India AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], 1610,
Bhagat Raja v Union of India [1967] 3 SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], Bhagat Raja v
Union of India (1967) 2 SCA 253 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98]; SN Mukherjee v Union of
India AIR 1990 SC 1985, SN Mukherjee v Union of India (1990) 4 SCC 594 [LNIND 1990 SC 986] [LNIND 1990 SC 986]
[LNIND 1990 SC 986], SN Mukherjee v Union of India [1990] Supp 1 SCR 44; Board of High School and Intermediate
Education, Uttar Pradesh, Allahabad v Bagleshwar Prasad AIR 1966 SC 875 [LNIND 1962 SC 277] [LNIND 1962 SC 277]
[LNIND 1962 SC 277], Board of High School and Intermediate Education, Uttar Pradesh, Allahabad v Bagleshwar Prasad
[1963] 3 SCR 767 [LNIND 1962 SC 277] [LNIND 1962 SC 277] [LNIND 1962 SC 277], Board of High School and Intermediate
Education, Uttar Pradesh, Allahabad v Bagleshwar Prasad (1963) 7 FLR 415; State of Madras v AR Srinivasan AIR 1966 SC
1827 [LNIND 1966 SC 72] [LNIND 1966 SC 72] [LNIND 1966 SC 72], State of Madras v AR Srinivasan (1967) 15 FLR 104; Sri
Rama Vilas Service v C Chandrasekaran AIR 1965 SC 107 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963 SC 289],
120 120
Page
Sri Rama Vilas Service v C Chandrasekaran [1964] 5 SCR 869 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963 SC
289]; Siemens Engineering and Manufacturing Co of India Ltd v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202]
[LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India Ltd v Union of India (1976) 2
SCC 981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of
India Ltd v Union of India (1976) 1 SCJ 116 [LNIND 1975 SC 373] [LNIND 1975 SC 373] [LNIND 1975 SC 373].
2 Sri Rama Vilas Service v C Chandrasekaran AIR 1965 SC 107 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963 SC
289], Sri Rama Vilas Service v C Chandrasekaran [1964] 5 SCR 869 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963
SC 289].
Union of India (1967) 2 SCA 253 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98].
4 Imperial Chemical Industries Ltd v The Registrar of Trade Marks, Bombay AIR 1981 Del 190 [LNIND 1969 SC 439] [LNIND
1969 SC 439] [LNIND 1969 SC 439](where an application by a company for registration of a trade mark was refused on the
ground of interests of general public and the development of indigenous industry in India, it was held that this did not amount to
giving of reasons as the order merely recited the words of the statute).
5 Union of India v Mohan Lal Kapoor AIR 1974 SC 87 [LNIND 1973 SC 292] [LNIND 1973 SC 292] [LNIND 1973 SC 292],
Union of India v Mohan Lal Kapoor (1974) 2 SCC 836, Union of India v Mohan Lal Kapoor [1974] 1 SCR 797 [LNIND 1973 SC
292] [LNIND 1973 SC 292] [LNIND 1973 SC 292]; Cycle Equipments (Pvt) Ltd v Municipal Corporation of Delhi AIR 1983 Del
94 [LNIND 1982 DEL 58] [LNIND 1982 DEL 58] [LNIND 1982 DEL 58], Cycle Equipments (Pvt) Ltd v Municipal Corporation of
Delhi (1982) ILR 1 Del 728, Cycle Equipments (Pvt) Ltd v Municipal Corporation of Delhi (1882) 21 Del LT 445 (reasons were
not held sufficient where the authority while cancelling the factory licence of the petitioner merely stated that his reply was found
to be unsatisfactory; it was not enough that the grounds for cancellation were stated in the show cause notice).
6 SN Mukherjee v Union of India AIR 1990 SC 1985, SN Mukherjee v Union of India (1990) 4 SCC 594 [LNIND 1990 SC 986]
[LNIND 1990 SC 986] [LNIND 1990 SC 986], SN Mukherjee v Union of India [1990] Supp 1 SCR 44 (it is not required that the
reasons must be as elaborate as in the decision of a court of law; the extent and nature of the reasons would depend on
particular facts and circumstances; it is however, necessary is that the reasons are clear and explicit so as to indicate that the
authority has given due consideration to the points in controversy); Siemens Engineering and Manufacturing Co of India Ltd v
Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering
and Manufacturing Co of India Ltd v Union of India (1976) 2 SCC 981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND
1976 SC 202], Siemens Engineering and Manufacturing Co of India Ltd v Union of India (1976) 1 SCJ 116 [LNIND 1975 SC
373] [LNIND 1975 SC 373] [LNIND 1975 SC 373] (the assistant collector did not give any reasons in support of the order made
by him; the collector in revision did give some reason but it was not satisfactory; commenting on the collector's order, the court
observed that the collector could have been a little more explicit and articulate so as to lend assurance that the case of the
appellants had been properly considered by him); Pradeep Singh Chouhan v University of Lucknow AIR 1983 All 427, Pradeep
Singh Chouhan v University of Lucknow (1983) All LJ 293, Pradeep Singh Chouhan v University of Lucknow (1983) All WC 527;
Satish Chandra Khandelwal v Union of India AIR 1983 Del 1, Satish Chandra Khandelwal v Union of India (1981) ILR 1 Del
917; Ossein and Gelatine Manufactuters' Association of India v Modi Alkalies and Chemicals Ltd AIR 1990 SC 1744 [LNIND
1989 SC 393] [LNIND 1989 SC 393] [LNIND 1989 SC 393], Ossein and Gelatine Manufactuters' Association of India v Modi
Alkalies and Chemicals Ltd (1989) 4 SCC 264 [LNIND 1989 SC 393] [LNIND 1989 SC 393] [LNIND 1989 SC 393], Ossein and
Gelatine Manufactuters' Association of India v Modi Alkalies and Chemicals Ltd [1989] 3 SCR 815 [LNIND 1989 SC 393]
[LNIND 1989 SC 393] [LNIND 1989 SC 393].

Reasons by appellate authorities
[005.067] Reasons by appellate authorities Adjudicatory bodies in an area may be arranged in a

hierarchical structural order. Whether all such bodies must give reasons for their decisions when a case
moves from the lower to the higher body has resulted in alternative situations & #x2013;
(1) If the lower authority has not given reasons or has given nebulous or scrappy reasons and the
appellate authority merely affirms the order without giving any reasons, the order of the
appellate authority will be bad1.
(2) Where the facts are so notorious that the reasons for the administrative action are too obvious,
a failure to give reasons by the revising authority may not vitiate action2.
(3) Where the order of the lower authority contains several reasons, some of which are good and
some bad, reasons must be given by the appellate authority if it endorses the order of the lower
121 121
Page
authority. The appellate body must at least indicate clearly the fact of acceptance of reasons
given by the lower authority3.
(4) An appellate authority must give reasons if it reverses the order of the lower authority, whether
the latter has given reasons or not4.
(5) Earlier the view was that no reasons need be given by the appellate body if it merely affirmed
a reasoned order of the lower authority because it could be assumed that it had accepted the
reasons given by the lower authority5. However, presently the appellate authority is required to
give its own reasons even if it affirms a reasoned decision of the lower body6. When
adjudicatory bodies are arranged in a hierarchical order, each authority must make a speaking
order7.
Union of India (1967) 2 SCA 253 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98] (the Central Government
acting under the Mineral Concession Rules 1960 r 55, affirmed the order of the state government which had rejected the
appellant's application for granting a mining lease and no reasons were given by any of the governments; quashing the order,
the Court pointed out that where the lower authority itself fails to give any reason, the Court has to grope in the dark for finding
into reasons for upholding or rejecting the decision of the reviewing authority); Siemens Engineering and Manufacturing Co of
India Ltd v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens
Engineering and Manufacturing Co of India Ltd v Union of India (1976) 2 SCC 981 [LNIND 1976 SC 202] [LNIND 1976 SC 202]
[LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India Ltd v Union of India (1976) 1 SCJ 116 [LNIND 1975
2 Nand Ram Hunat Ram v Union of India AIR 1966 SC 1922 [LNIND 1966 SC 102] [LNIND 1966 SC 102] [LNIND 1966 SC
102], Nand Ram Hunat Ram v Union of India [1966] Supp SCR 104.
Union of India (1967) 2 SCA 253 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98].
4 State of West Bengal v Atul Krishna Shaw AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND 1990 SC 466] [LNIND 1990 SC
466], State of West Bengal v Atul Krishna Shaw (1991) Supp 1 SCC 414, State of West Bengal v Atul Krishna Shaw [1990]
Supp SCR 91 (when the appellate authority disagrees with the reasons and finds of the primary authority, it must assign its own
reasons as to why it disagrees; merely because it is an appellate authority, it cannot brush aside the reasoning or findings
recorded by the primary authority, unless adequate reasons are given); Comr of Income Tax v Walchand and Co Pvt Ltd AIR
1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80], Comr of Income Tax v Walchand and Co Pvt
Ltd [1967] 3 SCR 214 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80], Comr of Income Tax v Walchand and Co
Pvt Ltd (1967) 65 ITR 381 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80] (the Income Tax Appellate Tribunal
did not agree with the view of the income tax officer, but without assigning any reasons, the tribunal allowed the claims of the
assessee partially; it was held that the tribunal must have recorded its reasons in support of its decision); State of Madras v A
R Srinivasan AIR 1966 SC 1827 [LNIND 1966 SC 72] [LNIND 1966 SC 72] [LNIND 1966 SC 72], State of Madras v A R
Srinivasan (1967) 15 FLR 104; State of Gujarat v Patel Raghav Nath AIR 1969 SC 1297 [LNIND 1969 SC 177] [LNIND 1969
SC 177] [LNIND 1969 SC 177], State of Gujarat v Patel Raghav Nath (1969) 2 SCC 187 [LNIND 1969 SC 177] [LNIND 1969
SC 177] [LNIND 1969 SC 177], State of Gujarat v Patel Raghav Nath [1970] 1 SCR 335 [LNIND 1969 SC 177] [LNIND 1969 SC
177] [LNIND 1969 SC 177]; Hari Nagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala AIR 1961 SC 1669 [LNIND 1961 SC
206] [LNIND 1961 SC 206] [LNIND 1961 SC 206], Hari Nagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala [1962] 2 SCR 339
[LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206], Hari Nagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala
(1961) 31 Comp Cas 387(the Central Government accepted an appeal under Companies Act 1956 s 111(3), against the refusal
of the directors of the company to register transfer of shares in favour of the transferee; under the articles of association of the
company, the directors had an absolute discretion to refuse to register any shares and they were not bound to give any reasons
for doing so; on appeal to the Supreme Court under the Constitution of India art 136, the Supreme Court quashed the Central
Government's order on the ground that no reasons had been given by the officer hearing the appeal; the Court directed
rehearing of the appeal and its disposal according to law by the Central Government).
5 Madhya Pradesh Industries Ltd v Union of India AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965
SC 190], Madhya Pradesh Industries Ltd v Union of India [1996] 1 SCR 466 [LNIND 1996 SC 92] [LNIND 1996 SC 92] [LNIND
1996 SC 92], Madhya Pradesh Industries Ltd v Union of India (1996) 1 SCJ 204.
6 Siemens Engineering and Manufacturing Co of India Ltd v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND
1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India Ltd v Union of India (1976) 2 SCC
981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India
Ltd v Union of India (1976) 1 SCJ 116 [LNIND 1975 SC 373] [LNIND 1975 SC 373] [LNIND 1975 SC 373]; Travancore Rayons
Ltd v Union of India AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439], Travancore Rayons
Ltd v Union of India (1969) 3 SCC 868 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439], Travancore Rayons
122 122
Page
Ltd v Union of India [1970] 3 SCR 257(in a case of assessment of excise duty, the first decision was made by the deputy
superintendent of central excises against the assessee; the assessee appealed to the collector who rejected his contention by a
detailed order; the assessee went in revision to the Central Government, which affirmed the collector's decision by a non
speaking order; on appeal under the Constitution of India art 136, the Supreme Court quashed the government order on the
ground that it was a non speaking order; the appellate body defended its non speaking order by arguing that since it had
dismissed the revision against the lower body, it was not obliged to give reasons of its own as it must be assumed that it
accepted all the reasons given by the lower authority; nevertheless, the Court quashed the order as it was a non speaking order
and insisted that the appellate body must have given its own reasons even though the lower body had given its reasons
because a higher body may accept the conclusions of the lower body but may not necessarily agree with all its reasons, that the
reasons for the decision of the appellate body may be different from those of the lower body, that the right of appeal to the
Supreme Court would be futile if the authority does not disclose the reasons for its decision); Bhagat Raja v Union of India AIR
1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], 1610, Bhagat Raja v Union of India [1967] 3
SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98], Bhagat Raja v Union of India (1967) 2 SCA 253
7 Siemens Engineering and Manufacturing Co of India Ltd v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND
1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India Ltd v Union of India (1976) 2 SCC
981 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India
Ltd v Union of India (1976) 1 SCJ 116 [LNIND 1975 SC 373] [LNIND 1975 SC 373] [LNIND 1975 SC 373]; Institute of
Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC
394], Institute of Chartered Accountants of India v L K Ratna (1987) 4 SCC 537 [LNIND 1987 SC 680] [LNIND 1987 SC 680]
[LNIND 1987 SC 680], Institute of Chartered Accountants of India v L K Ratna (1986) JT 671; RP Bhatt v Union of India AIR
1986 SC 1040 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518], RP Bhatt v Union of India (1986) 2 SCC 651
[LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518], RP Bhatt v Union of India [1985] 1Supp 1 SCR 947. See
contra State of Maharashtra v Salem Hasan Khan AIR 1989 SC 1304 [LNIND 1989 SC 145] [LNIND 1989 SC 145] [LNIND
1989 SC 145], State of Maharashtra v Salem Hasan Khan (1980) 2 SCC 315 [LNIND 1980 SC 65] [LNIND 1980 SC 65] [LNIND
1980 SC 65], State of Maharashtra v Salem Hasan Khan [1989] 1 SCR 970 [LNIND 1989 SC 145] [LNIND 1989 SC 145]
[LNIND 1989 SC 145].

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(3) DECISION-MAKER AND
HEARING/[005.068] Record of hearing
[005.068] Record of hearing Recording of hearing is of importance because, unless the adjudicatory body
preserves a full record of the proceedings before it, a right of appeal either to a higher tribunal or to the court
may not be fully effective1.
1 Nibaran Chandra Bag v Mahendra Nath Ghughu AIR 1963 SC 1895 [LNIND 1962 SC 395] [LNIND 1962 SC 395] [LNIND
1962 SC 395], Nibaran Chandra Bag v Mahendra Nath Ghughu [1963] Supp 2 SCR 570 (in the context of inquiry proceedings
by the assistant settlement officer under the West Bengal Estates Acquisition Act 1953, the Court held that the requirement of
maintaining a record must not be understood to mean that the concerned authority is bound to follow the procedure prescribed
for civil courts for the recording of evidence; it only means that the authority must maintain some record from which the
appellate authority would be able to gather the materials in respect of the decision which is the subject of the appeal). As to
hearing as an essential part of the rule of audi alteram partem see [005.058].

HEARING/[005.069] One who decides must hear
[005.069] One who decides must hear The maxim that one who decides must hear means that the hearing
and the deciding functions must not to be separated1.
In the United States of India and the United Kingdom, the practice of hearing and decision making being
vested in separate persons is very well recognised. The Supreme Court of the United States has held that
the requirement of hearing by the deciding officer may be satisfied by his dipping into the record prepared by
the hearing officer and his consultation with his subordinates2. It is not for the courts to go into the mental
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process of the deciding officer as to what extent he considered and examined the record3. In Britain also
where a decision is made by a department, it is not necessary for the department to hear the parties
personally and that the hearing could be conducted by a separate inquiry official4.
In India, the function of decision making must not be delegated to some one else, unless the concerned
adjudicatory body is authorised to do so expressly or by necessary implication by its parent statute, nor can
the decision making body ratify the decision of the delegate. However, the function of inquiry may be
assigned to some other officer5.
The Supreme Court of India has accepted separation between the hearing and the decisional functions6. The
Supreme Court has accepted the proposition that the inquiry function may be delegated to an officer by the
decision-maker in a disciplinary proceeding. In service jurisprudence, the practice of having separate hearing
and decision making authorities is widely prevalent and courts accept it as valid7. There is no bar in the
disciplinary authority deputing a responsible and competent official to inquire and report into the conduct of a
civil servant against whom disciplinary action is proposed to be taken8. However, the ultimate responsibility
to impose punishment on the delinquent officer cannot be delegated, unless the law specifically provides for
the same9.
The disciplinary authority is not bound by the findings of the inquiry officer reached by him on the basis of the
evidence recorded by him. The disciplinary authority is not bound by the findings of the hearing officer and
has to come to its own conclusions as regards facts and the guilt of the concerned officer. Though the inquiry
officer's findings may assist, they cannot bind the disciplinary authority10.
In the area of disciplinary action by professional bodies against professional persons, the principle that one
who decides must hear is strictly followed. A very high standard of natural justice is thus demanded11.
However, a strict adherence to the principle may not always be possible in the context of modern day
administrative and thus, to some extent, bifurcation of hearing and decisional functions has been accepted in
the contemporary administrative process12.
However, the hearing officer must act according to the dictates of natural justice and must submit the whole
record containing the entire evidence and arguments advanced at the hearing to the decision-making
authority and not merely a summary thereof. The decision maker must apply his mind to the entire record
and then come to his own findings and conclusions rather than mechanically accept the report of the hearing
officer13.
Where the disciplinary authority does not give the appellant an opportunity to make submissions against its
decision and finds him guilty of the charges, it would be contrary to the principles of natural justice if the
appellant, who has already been held as not guilty by the inquiring authority, is found guilty without being
afforded an opportunity of being heard on the basis of the same evidence and material on which a finding of
not guilty had already been recorded14.
2 Morgan v United States (1938) 304 US 1.
3 United States v Morgan (1941) 33 US 490.
4 Local Government Board v Arlidge [1915] AC 120, HL.
5 See note 4 above.
6 Pradyat Kumar Bose v Chief Justice of Calcutta, high court AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120]
[LNIND 1955 SC 120]; Ramchand Jagdishhand v Dy Collector of Customs AIR 1963 Cal 331 [LNIND 1961 CAL 72] [LNIND
1961 CAL 72] [LNIND 1961 CAL 72](with reference to the proceedings of confiscation of imported goods under Sea Customs
Act 1878 s 182, it was considered bad for the assistant collector to pass the order in isolation when the hearing was conducted
by another officer). See contra Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corporation AIR 1959 SC
308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND 1958 SC 139], Gullapalli Nageswara Rao v Andhra Pradesh State
Road Transport Corporation [1959] Supp 1 SCR 319 (this case involved the nationalisation of certain motor routes by a state
government; under the Motor Vehicles Act 1988 s 68C, schemes reposing nationalisation of bus routes framed by the transport
124 124
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undertaking were to be published; the stated provision gave a person affected by such a scheme the right to file his objections
against it before the state government; after hearing the objections, the government could approve or modify the scheme; under
the Business Rules, the hearing was to be done by the Secretary to the Transport Department but the ultimate decision was to
be made by the Chief Minister; conceding that the state government gave the hearing to the petitioners in the manner
prescribed by the rules made by the Governor, the Supreme Court quashed the order of the Chief Minister because the divided
responsibility of hearing and deciding violated the principles of natural justice; divided responsibility was held to be destructive
of the concept of judicial hearing; it was stated that if one person hears and another decides, then personal hearing becomes an
empty formality); See however, Raghava Menon v Inspector General of Police, Kerela AIR 1961 Ker 299 [LNIND 1960 KER
343] [LNIND 1960 KER 343] [LNIND 1960 KER 343], Raghava Menon v Inspector General of Police, Kerela (1961) Ker LT 35
[LNIND 1960 KER 343] [LNIND 1960 KER 343] [LNIND 1960 KER 343], Raghava Menon v Inspector General of Police, Kerela
(1961) Ker LR 56 (in a service matter, where the inquiry was held by one officer but the order of dismissal was passed by his
superior, it was held that the evidence need not be taken by the officer who makes the final decision; the administrative agency,
making the findings, must conscientiously reach a conclusion which it deems such evidence to justify; the decision will be bad if
it is established that the order challenged was without any application of the mind to the evidence by the deciding functionary);
Triambak Pati Tripathi v Board of High School and Intermediate Education, Uttar Pradesh, Allahabad AIR 1973 All 1 [LNIND
1972 SC 411] [LNIND 1972 SC 411] [LNIND 1972 SC 411], Triambak Pati Tripathi v Board of High School and Intermediate
Education, Uttar Pradesh, Allahabad (1972) ILR 2 All 142, Triambak Pati Tripathi v Board of High School and Intermediate
Education, Uttar Pradesh, Allahabad (1972) 2 Lab LJ 451 (where inquiry was held by a small committee but decision arrived at
by another committee, the high court upheld the procedure; the rule that one who decides must hear was to be confined to a
situation where personal hearing was required to be given to the affected persons and that it did not apply when there was no
such requirement); Indore Textile Ltd v Union of India AIR 1983 MP 65 [LNIND 1982 MP 48] [LNIND 1982 MP 48] [LNIND 1982
MP 48], Indore Textile Ltd v Union of India (1983) MP LJ 41, Indore Textile Ltd v Union of India (1983) Jab LJ 223(where the
hearing was held before an official and Minister made the final decision regarding the take over of a mill under the Industries
(Development and Regulation) Act 1951, the rule that one who decides must hear was not followed).
7 Moideen Kutty v State of Kerala AIR 1961 Ker 301 [LNIND 1960 KER 386] [LNIND 1960 KER 386] [LNIND 1960 KER 386],
Moideen Kutty v State of Kerala (1961) Ker LT 134 [LNIND 1960 KER 386] [LNIND 1960 KER 386] [LNIND 1960 KER 386],
Moideen Kutty v State of Kerala (1961) Ker LJ 469 (the rule one who hears must decide does not preclude administrative
tribunals from reasonably delegating some of their functions and that what is required of such authorities is that they must
conscientiously apply their minds to the record of the case and reach their own conclusions on the materials so placed before
them).
8 Ramesh Chandra Verma v R D Verma AIR 1958 All 532 [LNIND 1957 ALL 232] [LNIND 1957 ALL 232] [LNIND 1957 ALL
232]; Triambak Pati Tripathi v Board of High School and Intermediate Education, Uttar Pradesh, Allahabad AIR 1973 All 1
[LNIND 1972 SC 411] [LNIND 1972 SC 411] [LNIND 1972 SC 411], Triambak Pati Tripathi v Board of High School and
Intermediate Education, Uttar Pradesh, Allahabad (1972) ILR 2 All 142, Triambak Pati Tripathi v Board of High School and
Intermediate Education, Uttar Pradesh, Allahabad (1972) 2 Lab LJ 451; Raghava Menon v Inspector General of Police, Kerela
AIR 1961 Ker 299 [LNIND 1960 KER 343] [LNIND 1960 KER 343] [LNIND 1960 KER 343], Raghava Menon v Inspector
General of Police, Kerela (1961) Ker LT 35 [LNIND 1960 KER 343] [LNIND 1960 KER 343] [LNIND 1960 KER 343], Raghava
Menon v Inspector General of Police, Kerela (1961) Ker LR 56; Neelakanta Iyer v State of Kerala AIR 1960 Ker 279 [LNIND
1960 KER 24] [LNIND 1960 KER 24] [LNIND 1960 KER 24], Neelakanta Iyer v State of Kerala (1960) Ker LT 222 [LNIND 1960
KER 24] [LNIND 1960 KER 24] [LNIND 1960 KER 24], Neelakanta Iyer v State of Kerala (1960) 2 Lab LJ; Sreedhariah v
District Suprintendent of Police, Anantpur AIR 1960 AP 473 [LNIND 1959 AP 278] [LNIND 1959 AP 278] [LNIND 1959 AP 278],
Sreedhariah v District Suprintendent of Police, Anantpur (1960) 2 Lab LJ 156, Sreedhariah v District Suprintendent of Police,
Anantpur (1960) Andh LT 347.
[LNIND 1955 SC 120].
10 Union of India v HC Goel AIR 1964 SC 364 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208], Union of
India v HC Goel (1963) Cur LJ (SC) 153 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208], Union of India v
HC Goel (1964) 1 SCWR 28 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208]; Yoginath D Bagle v State of
Maharashtra AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], Yoginath D Bagle v State
of Maharashtra (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], Yoginath D Bagle v
State of Maharashtra (1999) 7 JT 62 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827]; Krishna Chandra
Tandon v Union of India AIR 1974 SC 1589, Krishna Chandra Tandon v Union of India (1974) 4 SCC 374, Krishna Chandra
Tandon v Union of India (1974) 1 SLR 178; Railway Board v Niranjan Singh AIR 1969 SC 966 [LNIND 1969 SC 39] [LNIND
1969 SC 39] [LNIND 1969 SC 39], Railway Board v Niranjan Singh (1969) 1 SCC 502 [LNIND 1969 SC 39] [LNIND 1969 SC
39] [LNIND 1969 SC 39], Railway Board v Niranjan Singh [1969] 3 SCR 548 [LNIND 1969 SC 39] [LNIND 1969 SC 39] [LNIND
1969 SC 39]; Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551, Jeffs v New Zealand Dairy
Production and Marketing Board [1966] 3 All ER 863 PC, (the Privy Council has accepted the proposition that while a decision
making authority may delegate the task of hearing the evidence to another functionary when the credibility of witnesses is not
involved, the hearing officer must make a full and adequate report to the decision maker of the evidence and submissions
before it, otherwise the ultimate decision will be invalid on the ground that there has not been a fair hearing according to natural
justice).
11 Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394]
[LNIND 1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1987) 4 SCC 537 [LNIND 1987 SC 680] [LNIND
1987 SC 680] [LNIND 1987 SC 680], Institute of Chartered Accountants of India v L K Ratna (1986) JT 671 (in a matter of
disciplinary action against a chartered accountant, the Supreme Court insisted that even though the concerned chartered
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accountant had been heard by the disciplinary committee of the institute, he must also be heard by the council which was the
actual decision making body in disciplinary matters).
12 Indore Textile Ltd v Union of India AIR 1983 MP 65 [LNIND 1982 MP 48] [LNIND 1982 MP 48] [LNIND 1982 MP 48], Indore
Textile Ltd v Union of India (1983) MP LJ 41, Indore Textile Ltd v Union of India (1983) Jab LJ 223; Triambak Pati Tripathi v
Board of High School and Intermediate Education, Uttar Pradesh, Allahabad AIR 1973 All 1 [LNIND 1972 SC 411] [LNIND 1972
SC 411] [LNIND 1972 SC 411], Triambak Pati Tripathi v Board of High School and Intermediate Education, Uttar Pradesh,
Allahabad (1972) ILR 2 All 142, Triambak Pati Tripathi v Board of High School and Intermediate Education, Uttar Pradesh,
Allahabad (1972) 2 Lab LJ 451; Raghava Menon v Inspector General of Police, Kerela AIR 1961 Ker 299 [LNIND 1960 KER
343] [LNIND 1960 KER 343] [LNIND 1960 KER 343], Raghava Menon v Inspector General of Police, Kerela (1961) Ker LT 35
[LNIND 1960 KER 343] [LNIND 1960 KER 343] [LNIND 1960 KER 343], Raghava Menon v Inspector General of Police, Kerela
(1961) Ker LR 56.
13 Ossein and Gelatine Manufactuters' Association of India v Modi Alkalies and Chemicals Ltd AIR 1990 SC 1744 [LNIND
1989 SC 393] [LNIND 1989 SC 393] [LNIND 1989 SC 393], Ossein and Gelatine Manufactuters' Association of India v Modi
Alkalies and Chemicals Ltd (1989) 4 SCC 264 [LNIND 1989 SC 393] [LNIND 1989 SC 393] [LNIND 1989 SC 393], Ossein and
Gelatine Manufactuters' Association of India v Modi Alkalies and Chemicals Ltd [1989] 3 SCR 815 [LNIND 1989 SC 393]
[LNIND 1989 SC 393] [LNIND 1989 SC 393]; Jeffs v New Zealand Dairy Production and Marketing Board [1967] 1 AC 551,
Jeffs v New Zealand Dairy Production and Marketing Board [1966] 3 All ER 863 PC,.
14 Yoginath D Bagle v State of Maharashtra AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC
827], Yoginath D Bagle v State of Maharashtra (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999
SC 827], Yoginath D Bagle v State of Maharashtra (1999) 7 JT 62 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999
SC 827] (where the inquiry officer held that the charges against the appellant, a civil Judge, had not been established but the
disciplinary authority disagreeing with the inquiry officer came to its own conclusion that the charges were established and that
the appellant was liable to be dismissed, the court quashed the decision of the disciplinary authority on grounds of breach of
natural justice as the appellant had not been given a fair hearing).

HEARING/[005.070] Deciding authority consulting an outside authority
[005.070] Deciding authority consulting an outside authority It may not be invalid for the decision-maker
to consult a person, provided he does not mechanically follow the advice given and comes to his own
conclusions and findings, by applying his own mind1.
However, if there is any practice under which the decision-maker is bound not only to consult someone but
also to compulsorily follow his advice, then such a practice is invalid as it amounts to dictating the
decision-maker. This also infringes the principle that after hearing has been completed no fresh material can
be taken into consideration by the decision-maker without bringing it to the attention to the concerned party2.
[LNIND 1980 SC 96] (the report made by the inquiry officer into certain charges against a member of the Indian Administrative
Service was sent to the Vigilance Commissioner for advice; thereafter, the disciplinary authority, that is the state government
came to its own conclusions on the findings resulting in his reduction from a higher to a lower salary in the same grade; he
challenged the order, inter alia, on the ground that consultation with the Vigilance Commissioner, who had no statutory status,
was unjustified and that the government did not furnish the report of the Vigilance Commissioner to the petitioner though the
ultimate findings of the government were based on that report; the Supreme Court overruled this objection saying that the
government committed no serious or material irregularity in consulting the Vigilance Commissioner; the authority arrived at its
own conclusions independently; the final conclusions of the government were so much at variance with the opinion of the
Vigilance Commissioner that it was impossible to say that the disciplinary authority's mind was in any manner influenced by the
advice tendered by the Vigilance Commissioner; the Court also rejected the argument that a copy of the Vigilance
Commissioner's report must have been supplied to him); Jasodhar Misra v State of Bihar AIR 1979 SC 1117 [LNIND 1979 SC
15] [LNIND 1979 SC 15] [LNIND 1979 SC 15], Jasodhar Misra v State of Bihar (1979) 4 SCC 322 [LNIND 1979 SC 15] [LNIND
1979 SC 15] [LNIND 1979 SC 15], Jasodhar Misra v State of Bihar (1979) UJ 214 (the disciplinary authority, after receiving the
report of the inquiry officer, issued show cause notice to M; the disciplinary authority obtained the comments of two of its
subordinates on the representation of M and passed an order of dismissal against him; the comments of the subordinates were
not shown to M; the Court did not find anything wrong in the procedure in the circumstances of the case; in the show cause
126 126
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notice, the authority had made it explicit that M was to make his representation through the two subordinates who were to
forward it to the authority with their comments; therefore, no objection could be raised by M as to the procedure adopted;
further, the comments made by the subordinates related to the quantum of punishment and did not refer to any new or
undisclosed facts which were not on the record and the authority had already recorded its findings about the charges levelled
against M before these comments were made).
2 State Bank of India v D C Aggarwal AIR 1993 SC 1197 [LNIND 1992 SC 697] [LNIND 1992 SC 697] [LNIND 1992 SC 697],
State Bank of India v D C Aggarwal (1994) Supp 2 SCC 131, State Bank of India v D C Aggarwal (1994) 2 JT 678 (the inquiry
officer found some charges substantiated and some not, against a bank employee; the bank directed the inquiry officer to
submit his report through the Central Vigilance Commissioner (CVC); the CVC disagreed with the inquiry officer and and
suggested that the employee be removed from service; the bank agreed with the CVC that all charges against the employee
had been proved but thought that the punishment of removal would be harsh under the circumstances; the Supreme Court
quashed the order on the ground that the bank took into consideration the CVC's suggestions without supplying a copy thereof
to the employee concerned; the report of the CVC was prepared behind the back of the employee concerned without his
participation and this was violative of procedural safeguard and contrary to fair and just inquiry; that action against an employee
on confidential material obtained behind his back and without his knowledge or supplying him a copy thereof was violative of
natural justice).

HEARING/[005.071] Disclosure of hearing officer's report
[005.071] Disclosure of hearing officer's report In cases of disciplinary proceedings against civil servants,
it is usual for the disciplinary authority to appoint an inquiry officer to conduct the hearing1.
Non submission of the report of the hearing officer to the affected person does not result in violation of
natural justice if he has been given a hearing by the inquiry officer since that meets the requirements of
natural justice2.
The inquiry officer may recommend a decision for the consideration of the decision-maker. However, the
recommendation is not binding and merely serves as a raw material for consideration of the higher authority
which must exercise discretion and come to a decision. So long as there is no surrender of judgment by the
decision-making authority to the inquiry officer, there is no contravention of the canons of natural justice3.
Recently, the Supreme Court has adopted a more liberal attitude in this area by insisting that the inquiry
report be given to the concerned civil servant and his comments invited on it, before imposing any
punishment on him. Therefore, whenever the service rules contemplate an inquiry before a punishment is
awarded and when the inquiry officer is not the disciplinary authority, the delinquent employee will have the
right to receive the inquiry officer's report not withstanding the nature of punishment. A copy of the report of
inquiry must be given to the employee whether he asks for it or not. The employee then has a right to make
representation to the disciplinary authority against the findings recorded in the inquiry report. These
propositions apply to all employees, whether government or non-government4.
[LNIND 1955 SC 120]. As to hearing as an essential part of the rule of audi alteram partem see [005.058]. As to disciplinary
proceedings against government servants see [005.117].
2 Suresh Koshy George v University of Kerala AIR 1969 SC 198 [LNIND 1968 SC 161] [LNIND 1968 SC 161] [LNIND 1968 SC
161], Suresh Koshy George v University of Kerala (1969) 1 SCJ 543, Suresh Koshy George v University of Kerala (1968) 2
SCWR 117 (disciplinary proceedings were initiated by the university against a student on a charge of malpractice during the
examination; the ultimate deciding authority was the Vice Chancellor; an inquiry was conducted by a person appointed by the
Vice Chancellor; after the inquiry, the Vice Chancellor issued a show cause notice; the report of the inquiry was not given to the
appellant and he challenged the procedure on the ground of violation of natural justice but the court rejected the challenge,
ruling that where the law provided for a show cause notice, it does not follow that a copy of the report on the basis of which the
notice is issued must be made available to the affected person or another inquiry be held thereafter); Minerva Mill Ltd v Union
of India AIR 1986 SC 2030 [LNIND 1986 SC 307] [LNIND 1986 SC 307] [LNIND 1986 SC 307], Minerva Mill Ltd v Union of India
(1986) 4 SCC 222 [LNIND 1986 SC 307] [LNIND 1986 SC 307] [LNIND 1986 SC 307], Minerva Mill Ltd v Union of India [1986]
3 SCR 718 [LNIND 1986 SC 307] [LNIND 1986 SC 307] [LNIND 1986 SC 307]; Shadi Lal Gupta v State of Punjab AIR 1973
127 127
Page
SC 1124 [LNIND 1973 SC 64] [LNIND 1973 SC 64] [LNIND 1973 SC 64], Shadi Lal Gupta v State of Punjab (1973) 1 SCC 680
[LNIND 1973 SC 64] [LNIND 1973 SC 64] [LNIND 1973 SC 64], Shadi Lal Gupta v State of Punjab (1973) 1 Lab LJ 435 [LNIND
1973 SC 64] [LNIND 1973 SC 64] [LNIND 1973 SC 64] (a case involving imposition of minor penalty on a civil servant, the
disciplinary authority caused a local inquiry to be conducted by a subordinate official but this report was not shown to the
delinquent civil servant; the Court upheld the action of the disciplinary authority); Hira Nath Mishra v Principal, Rajendra
Medical College, Ranchi AIR 1973 SC 1160, Hira Nath Mishra v Principal, Rajendra Medical College, Ranchi (1973) 1 SCC 805
[LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113], Hira Nath Mishra v Principal, Rajendra Medical College,
Ranchi (1974) 1 SCJ 223 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113] (in a case involving disciplinary
action taken against a few students on the charge of molesting girl students, the Principal of the college, who was the
disciplinary authority, constituted an inquiry committee to enquire into the charges; as a result of the inquiry, the students were
expelled from the college for a period of two years; the report of the inquiry committee was not shown to the students; upholding
the action of the Principal, the Court pointed out that if the report of the committee containing the evidence of the girls was
supplied to the students, the girls testifying against the boys could have been identified and they would have been in constant
fear of molestation by the boys; therefore, public interest required that the report be not disclosed to them); Satwant Singh
Grewal v The Board of High School and Intermediate Education, Uttar Pradesh, Allahabad AIR 1974 All 273. See contra The
Kesava Mills Co Ltd v Union of India AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570], The
Kesava Mills Co Ltd v Union of India (1973) 1 SCC 380 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570], The
Kesava Mills Co Ltd v Union of India [1973] 3 SCR 22 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570] (the
Government of India appointed an investigating committee to investigate the affairs of the mills under Industries (Development
and Regulation) Act 1951 s 15; the committee submitted its report to the government after giving reasonable opportunity of
hearing to the concerned mills but the report was not shown to the management; as a result of the report of the committee,
management of the mills was taken over under s 18A of the Act; the Supreme Court stated that it was not ready to lay down an
inflexible rule that the report of the inquiry was not necessary to be disclosed to the party concerned; that whether the reports
must be furnished or not must depend on the merits of a case; that there may be certain cases where unless the report is given,
the concerned party may not be able to make an effective representation against the proposed government action; that if its non
disclosure causes any prejudice in any manner to the person concerned, the inquiry report must be disclosed, otherwise non
disclosure would not amount to a violation of the principles of natural justice); K S Cyriac v Vice Chancellor, Kerela University,
Trivandrum AIR 1975 Ker 158 [LNIND 1974 KER 41] [LNIND 1974 KER 41] [LNIND 1974 KER 41], K S Cyriac v Vice
Chancellor, Kerela University, Trivandrum (1974) ILR 1 Ker 459, K S Cyriac v Vice Chancellor, Kerela University, Trivandrum
(1974) Ker LT 504 [LNIND 1974 KER 41] [LNIND 1974 KER 41] [LNIND 1974 KER 41].
3 The Chairman, Board of Mining Examinationand Chief Inspector of Mines v Ramjee AIR 1977 SC 965 [LNIND 1977 SC 67]
SC 67].
4 See the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW). Managing Director, Electronic Corp of
India v VB Karunakar 1992 1 SCC 709, Managing Director, Electronic Corp of India v VB Karunakar (1992) 3 JT 605, Managing
Director, Electronic Corp of India v VB Karunakar (1992) 65 FLR 185; Union of India v Mohammed Ramzan Khan AIR 1991 SC
474, Union of India v Mohammed Ramzan Khan (1991) 1 SCC 588 [LNIND 1990 SC 726] [LNIND 1990 SC 726] [LNIND 1990
SC 726], Union of India v Mohammed Ramzan Khan (1991) Lab IC 308; Institute of Chartered Accountants of India v L K
Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394], Institute of Chartered Accountants
of India v L K Ratna (1987) 4 SCC 537 [LNIND 1987 SC 680] [LNIND 1987 SC 680] [LNIND 1987 SC 680], Institute of
Chartered Accountants of India v L K Ratna (1986) JT 671.

HEARING/[005.072] Institutional decision
[005.072] Institutional decision A situation of institutional decision arises when the decision making power
is conferred not on a specified person or a tribunal but on a body, such as the government, a department or
the head of a department like a Minister. However, where an authority has been created specifically for
adjudication, it may not be termed as an institutional decision. A decision is called institutional if it is taken
collectively by a concerned department as an administrative entity rather than being a personal decision of
any designated officer individually1.
It is an established practice in Britain that where the decision making power is conferred on a minister, he
does not have to take the decision personally, decisions are reached by departmental officials2. Relevant
material for arriving at a decision may be collected through a local public inquiry conducted by the inspectors
coming either from the department itself or from outside it. To ensure their impartiality, the Franks Committee
128 128
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recommended that the inspectors be placed under the control of the Lord Chancellor3.
The system of institutional decision prevails in India as well. When a statutory provision confers adjudicatory
powers on the President/Governor or a Minister, the decision is an instance of an institutional decision. None
of these highly placed dignitaries is expected to decide the matter personally. Adjudicatory powers are
conferred on the Central and state governments as well and the decision in these cases is made under the
rules of business by the officer authorised4.
The system of institutional decisions has been approved on the following grounds:
(1) it is not necessary to identify the individual official in the department who makes the decision in
a given case;
(2) the concerned department may deal with the matter in the usual manner like any other
administrative matter;
(3) the department must fairly listen to the concerned parties;
(4) it is not necessary to disclosure the inquiry report to the party concerned;
(5) one person may hold an inquiry or a hearing5 and another person may decide the matter; and
(6) it is not necessary that the person who decides must have himself heard the person affected6.
At times, the relevant statute may itself provide for allocation of such a function to a designated official in the
department. In such a case, the work within the department may be allotted either under the rules of
business or the parent statute. As a procedural safeguard, the party affected by the decision must be
informed about the official considering the matter7.
When adjudicatory power is conferred on a specific official he alone is the one who must take the final
decision8. On the other hand, a decision by a department differs from the decision by a designated official,
body or tribunal created exclusively for adjudication, for while in the latter case the discretion exercised and
the view taken are that of the specified authority; in the former case, the decision is that of the department as
a whole and represents the cumulative wisdom of a number of officials and in this sense it is institutional and
not individual9.
One of the disadvantages of such a decision is that it is difficult to put the responsibility for the decision on
any specified individual in the department for the decision taken. The deciding officer is unable to watch the
demeanour of a witness and to make up his own mind as to the credibility of the witness. Further, the party is
unable to put his arguments before the person who really counts and to persuade him directly to accept his
viewpoint10. On the other hand, the advantage of the system is that the decision is the end product of the
input made by a number of persons11.
1 There are several reasons which give rise to the system of institutional decisions: (1) government being an impersonal body
has to function only through officials; (2) a minister being a busy person cannot personally take each and every decision in his
department; (3) a decision on complex issues needs the combined expertise, specialisation, opinion and perspective of a
number of departmental officers.
2 Local Government Board v Arlidge [1915] AC 120 HL,.
3 Report of the Committee on Administrative Tribunals and Enquiries 65, 71, 73-74: the Franks Committee was of the opinion
that the inspector's report must summarise the relevant evidence, set out his findings of fact and contain recommendations for
the minister's final decision; the inclusion of recommendations was necessary, since the inspector hears the evidence at first
hand; the Committee also suggested that the inspector's report be published and that a copy of the same be given to the parties
for the purpose of proposing correctness of facts to the inspector.
4 Union of India v Sripati Ranjan Biswas AIR 1975 SC 1755 [LNIND 1975 SC 261] [LNIND 1975 SC 261] [LNIND 1975 SC
261], Union of India v Sripati Ranjan Biswas (1975) Lab IC 1221 [LNIND 1975 SC 261] [LNIND 1975 SC 261] [LNIND 1975 SC
261], Union of India v Sripati Ranjan Biswas (1975) SCC (Lab) 397 (the respondent was dismissed from service by the collector
of customs; he preferred an appeal to the President as was provided for under the service rules; the Minister of Finance
rejected the appeal without any reference to the President; on being challenged, the procedure was upheld by the Supreme
Court as the appeal had been disposed of by the Minister according to the rules of business); Samsher Singh v State of Punjab
AIR 1974 SC 2192 [LNIND 1974 SC 246] [LNIND 1974 SC 246] [LNIND 1974 SC 246], Samsher Singh v State of Punjab
(1972) Lah IC 1380 (barring a few exceptions, where the President or the Governor exercises functions conferred on him by or
129 129
Page
under the Constitution with the aid and advice of the Council of Ministers, he does so by making rules for convenient transaction
of the business of the government; wherever the Constitution requires the satisfaction of the any power or function by the
President or the Governor, as the case may be it is not the personal satisfaction of the President or of the Governor but is the
satisfaction of the President or of the Governor in the Constitutional sense under the cabinet system of government); see also
Union of India v Jyoti Prakash Mitter AIR 1971 SC 1093 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], Union
of India v Jyoti Prakash Mitter (1971) 1 SCC 396 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], Union of India
v Jyoti Prakash Mitter [1971] 3 SCR 483 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54](the function which the
President discharges under the Constitution of India art 217 is an instance where the power conferred upon him has to be
exercised without any reference to the Council of Ministers, however, it is a quasi judicial and not an administrative function).
Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308 [LNIND 1958 SC 139]
[LNIND 1958 SC 139] [LNIND 1958 SC 139], Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corporation
[1959] Supp 1 SCR 319; Labh Singh Atma Singh v Union of India AIR 1970 Del 171 [LNIND 1969 DEL 165] [LNIND 1969 DEL
165] [LNIND 1969 DEL 165](an appeal was made from the decision of the Chief Settlement Commissioner to the Central
Government under Displaced Persons (Compensation and Rehabilitation) Act 1953 s 33; the appeal was disposed of by the
Deputy Secretary to the government; when the order was challenged, the high court pointed out that under the business rules,
government's business could be done by various officials on its behalf; that thus, the Deputy Secretary could transact
government's business without the need of any separate authorisation being issued to him for the purpose; that the
government's decision was institutional and not a personal one and could thus be discharged by any official authorised under
the business rules). See also Indore Textile Ltd v Union of India AIR 1983 MP 65 [LNIND 1982 MP 48] [LNIND 1982 MP 48]
[LNIND 1982 MP 48], Indore Textile Ltd v Union of India (1983) MP LJ 41, Indore Textile Ltd v Union of India (1983) Jab LJ 223.
6 R v Commission for Racial Equality, ex p Cottrell and Rothon [1980] 3 All ER 265 at 270-271, R v Commission for Racial
Equality, ex p Cottrell and Rothon [1980] 1 WLR 1580 at 1586 DC,.
7 Travancore Rayons Ltd v Union of India AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC
439], Travancore Rayons Ltd v Union of India (1969) 3 SCC 868 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC
439], Travancore Rayons Ltd v Union of India [1970] 3 SCR 257; Mahabir Prasad Santosh Kumar v State of Uttar Pradesh AIR
1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188], Mahabir Prasad Santosh Kumar v State of
Uttar Pradesh (1970) 72 Bom LR 342 (the appellant appealed to the state government against an order of cancellation of
license for dealing wholesale in sugar; the state government dismissed the appeal; the result of the appeal was communicated
to the state government by a letter from the Deputy Secretary without disclosing even the identity of the officer who considered
the objections and the reasons for rejecting the objections; the court observed that from the materials on the record it could not
be determined as to who considered the appeal addressed to the state government and what was considered by the authority
exercising power on behalf of the state government).
8 Devi Datt v Union of India AIR 1985 Del 195 [LNIND 1984 DEL 397] [LNIND 1984 DEL 397] [LNIND 1984 DEL 397].
9 Schwartz, 'Administrative Law--A Case book' (1977)pp 493-94. See also Schwartz, 'American Administrative Law' (1976)p
374.
10 Byse, the Federal Administrative Procedure Act, IJILI (1958-59)pp 89 and 98; Schwartz, 'American Administrative Law'
(1976)pp 374-405; Schwartz, Administrative Law--A Casebook (1977) pp 419-28 and 718; Schwartz, 'Recent Developments in
American Administrative Law' (1980) LVIII Can BRP 319.
11 Davis, Administrative Law (1951)p 330.

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(4) BIAS/A. INTRODUCTION/[005.073]
Meaning
[005.073] Meaning Bias may be defined as a preconceived opinion or a pre-disposition or pre-determination

to decide a case or an issue in a particular manner so much so that such pre-disposition does not leave the
mind open to conviction. It is a condition of mind, which sways judgments and renders the judge unable to
exercise impartiality in a particular case1.
1 State of West Bengal v Shivananda Pathak AIR 1998 SC 2050, State of West Bengal v Shivananda Pathak (1998) 5 SCC
513, State of West Bengal v Shivananda Pathak (1998) 3 JT 701 [LNIND 1998 SC 184] [LNIND 1998 SC 184] [LNIND 1998 SC
184].
130 130
Page

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(4) BIAS/A. INTRODUCTION/[005.074]
Rule against bias
[005.074] Rule against bias An essential element of judicial process is that the judge has to be impartial
and neutral to be in a position to apply his mind objectively to the dispute before him. Proceedings before a
judge may be vitiated if he is biased1.
The maxim nemo judex in re sua literally means that a person must not be a judge in his own cause. The
maxim has also come to mean that an adjudicator must be impartial. This is known as the rule against bias.
The principle that bias disqualifies a person from acting as a judge flows from the following two other
maxims:
(1) no one must be a judge in his own cause2; and

(2) justice must not only be done but be seen to be done.
The maxim that no one must be a judge in his own cause applies not only when the decision maker himself
is a party to the dispute that he is called upon to decide but also when he has some interest therein. The
interest may be pecuniary, personal or of some other type.
The maxim that justice must not only be done but be seen to be done signifies that it is not necessary to
prove that a particular person actually suffered from bias while deciding the dispute. It is sufficient if
reasonable persons suspect that justice has not been done in the instant case.
1 State of West Bengal v Shivananda Pathak AIR 1998 SC 2050, State of West Bengal v Shivananda Pathak (1998) 5 SCC
513, State of West Bengal v Shivananda Pathak (1998) 3 Scale 411 [LNIND 1998 SC 184] [LNIND 1998 SC 184] [LNIND 1998
SC 184] (judicial bias arising out of judicial obstinacy).
2 N B Jeejeebhoy v The Assistant Collector Thana Prent, Thana AIR 1965 SC 1096 [LNIND 1964 SC 253] [LNIND 1964 SC
253] [LNIND 1964 SC 253], N B Jeejeebhoy v The Assistant Collector Thana Prent, Thana (1965) 2 SCA 457, N B Jeejeebhoy
v The Assistant Collector Thana Prent, Thana (1965) MP LJ 114 [LNIND 1964 SC 253] [LNIND 1964 SC 253] [LNIND 1964 SC
253] (Gajendragadkar CJ, reconstituted the bench for hearing the case because he was a member of the cooperative society
for which the land in dispute had been acquired).

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(4) BIAS/B. TYPES OF BIAS/[005.075]
Pecuniary bias
[005.075] Pecuniary bias A direct pecuniary interest, howsoever small or insignificant it may be, will
disqualify a person from acting as a judge in a court1. It is not necessary to prove that there was actual bias
or a real likelihood of bias in the circumstances of the case2. A similar principle applies to adjudicatory
proceedings as well. Thus, if a permit is granted by a regional transport authority to one of its members, the
court may not have any hesitation in cancelling it on account of bias of the authority3.
1 Dimes v Grand Junction Canal Proprietors (1852) 3 HL Cas 759 (a public limited company filed a case against a landowner
in a matter largely involving the interests of the company; the Lord Chancellor who was a shareholder in the company heard the
case and gave to the company the relief it sought; his decision was quashed by the House of Lords because of the pecuniary
interest of the Lord Chancellor in the company; Lord Compbell, in his opinion, emphasised that while none could suppose that
the Lord Chancellor was at all influenced by his interest in the company, nevertheless, it was very important that the maxim that
no man is to be a judge in his own cause be held sacred); R v Hendon RDC, exp Chorley [1933] 2 KB 696 DC,; R v Barnsley
Licensing Justices, ex p Barnsley and District Licensed Victuallers' Association [1960] 2 QB 167 at 187, R v Barnsley Licensing
Justices, ex p Barnsley and District Licensed Victuallers' Association [1960] 2 All ER 703.
2 Kumkum Prakashan v State of Gujarat AIR 1990 Guj 12 [LNIND 1989 GUJ 184] [LNIND 1989 GUJ 184] [LNIND 1989 GUJ
131 131
Page
184]; J Mohapatra & Co v State of Orissa AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC
386], J Mohapatra & Co v State of Orissa (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC
386]; AIR Corporation Employees Union v Vyas (1962) LLJ 31; R v Gough (1993) 2 All ER 726.
3 A Annamalai v State of Madras (New Andhra) AIR 1957 AP 739 [LNIND 1955 AP 100] [LNIND 1955 AP 100] [LNIND 1955
AP 100], A Annamalai v State of Madras (New Andhra) (1955) Andh LT (Cr) 831, A Annamalai v State of Madras (New Andhra)
(1956) Andh WR 652.

Personal bias
[005.076] Personal bias In a dispute before an adjudicator, various circumstances may give rise to personal
bias for or against one party. The adjudicator may be a friend, a relative of the party, may have some
business or professional relationship with him or may have some personal animosity or hostility against him1.
All these factors operate as a disqualification for a person to act as an adjudicator in the dispute.
Some obvious forms of personal bias are:
(1) when the manager of a factory himself conducts an inquiry against the workmen who are
alleged to have assaulted him2; or
(2) when a person sits on a gram panchayat bench to hear an appeal against his own conviction3;
or
(3) when the adjudicator is related to one of the parties4; or
(4) when a person sits on the selection board to select persons for a post for which he himself is a
candidate, even though he may not participate in its deliberations when his name is being
considered5; or
(5) when the selection committee, in order to select persons for civil posts includes as a member, a
near relation of a selected candidate6.
Personal bias arises in a variety of factual situations and thus, the area of operation of personal bias is broad
in the sphere of administrative adjudication7.
Whether there is a real likelihood of bias, as against the reasonable suspicion of bias, may be considered as
a test of bias. Likelihood of bias requires a heavier burden of proof on the person making the allegation. Until
recently, it was for the court to decide by its own evaluation whether such likelihood existed in the
circumstances of the case. The presence of likelihood of bias must be ascertained by the court with
reference to the right-minded persons8.
Even when the court may feel that there was no real likelihood of bias in the circumstances of the case, the
court may still quash a decision if right-minded people would suspect bias on the part of the adjudicator. The
reason for the liberal test for bias is that justice must be rooted in public confidence and confidence is
destroyed when right-minded people think that the adjudicator was biased.
The test that justice must not only be done but clearly appear to have been done, is another test that may be
applied to test bias9. Actual bias is not necessary to disqualify a person to act as an adjudicator, he may still
be disqualified to act even if there is real likelihood of bias on the ground that justice must not only be done
but must appear to be done to the litigating public10.
The courts may apply any test of bias depending on the circumstances of every case11. The courts may seek
to assess real likelihood of bias from the perspective of:
(i) the litigant or the aggrieved party himself12; or

(ii) the reasonable men13; or
(iii) the court itself.
132 132
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The expression real danger of bias is narrower than real likelihood, although the Supreme Court has
asserted that both these expressions are synonymous14.
Every preference may not vitiate an action. Thus, if the preference is rational and unaccompanied by
considerations of personal interest pecuniary or otherwise, it would not vitiate a decision. For instance, if a
senior officer expresses appreciation of the work of a junior in the confidential report, it would not amount to
bias nor would it preclude that senior officer from being part of the departmental promotion committee to
consider such junior officer along with others for formation15.
1 S Parthasarathy v State of Andhra Pradesh AIR 1973 SC 2701 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC
280], S Parthasarathy v State of Andhra Pradesh (1973) SCC (Lab) 580, S Parthasarathy v State of Andhra Pradesh (1973) 2
SCWR 464 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC 280] (if the inquiry officer, in a disciplinary proceeding
against a civil servant, has strong personal animosity towards him, it is not proper for him to conduct the inquiry); The Andhra
Pradesh State Road Transport Corpn, Hyderabad v Sri Satyanarayana Transport (Private) Ltd, Guntur AIR 1965 SC 1303
[LNIND 1964 SC 638] [LNIND 1964 SC 638] [LNIND 1964 SC 638], The Andhra Pradesh State Road Transport Corpn,
Hyderabad v Sri Satyanarayana Transport (Private) Ltd, Guntur (1965) 2 SCA 305, The Andhra Pradesh State Road Transport
Corpn, Hyderabad v Sri Satyanarayana Transport (Private) Ltd, Guntur (1965) 2 SCWR 186; Mineral Development Ltd v State
of Bihar AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224], Mineral Development Ltd v State
of Bihar [1960] 2 SCR 609 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224], Mineral Development Ltd v
State of Bihar (1960) SCJ 643 (the Minister for Revenue of the state cancelled the petitioners' lease of certain land; there was
political rivalry between the petitioners and the Minister who had even filed a criminal case against the petitioners; the Supreme
Court ruled that since there was personal bias in the minister against the petitioners, he must not have taken part in the decision
to cancel the lease of the petitioners).
2 Meenglas Tea Estate v The Workmen AIR 1963 SC 1719 [LNIND 1963 SC 50] [LNIND 1963 SC 50] [LNIND 1963 SC 50],
Meenglas Tea Estate v The Workmen (1964) 1 SCJ 98 [LNIND 1963 SC 50] [LNIND 1963 SC 50] [LNIND 1963 SC 50],
Meenglas Tea Estate v The Workmen (1963) 2 LLJ 392 [LNIND 1963 SC 50] [LNIND 1963 SC 50] [LNIND 1963 SC 50].
3 Ramjag Singh v The State of Bihar AIR 1958 Pat 7, Ramjag Singh v The State of Bihar (1958) Cr LJ 69.
4 Amolakchand Murlidhar v Sub Divisional Officer, Sibsagar AIR 1962 Assam 80
5 SP Kapoor v State of Himachal Pradesh AIR 1981 SC 2181 [LNIND 1981 SC 424] [LNIND 1981 SC 424] [LNIND 1981 SC
424], SP Kapoor v State of Himachal Pradesh (1982) Lab I 09 (a doctor made annual confidential reports relating to several
government doctors working under him in the service of the state; in a departmental promotion exercise, the doctor himself was
a candidate for promotion competing with several of these doctors; the Supreme Court ruled that it was not fair for the
promotion committee to take into account the confidential reports made by the doctor with respect to other doctors who were
competing with him for promotion); AK Kraipak v Union of India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197]
[LNIND 1969 SC 197], AK Kraipak v Union of India [1970] 1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND
1969 SC 197], AK Kraipak v Union of India (1970) 1 SCJ 381 (an ex officio member of the selection committee was himself a
candidate for one of the selection posts for which the interviews were being held; he along with a few other candidates was
selected for several posts; the Supreme Court quashed the selections on the ground of bias; the court rejected the argument
that the selection committee is only a recommendatory body and that its recommendations were to be considered by the Union
Public Service Commission (UPSC) which was to make the final selections; the court argued that the recommendations of the
selection committee were not of little consequence; that the recommendations were to carry considerable weight with the ; if the
decision of the selection board were held to have been vitiated, then the final recommendations made by the (UPSC) must also
be held to have been vitiated).
6 DK Khanna v Union of India AIR 1973 HP 30 [LNIND 1972 HP 41] [LNIND 1972 HP 41] [LNIND 1972 HP 41], DK Khanna v
Union of India (1973) Lab IC 582, DK Khanna v Union of India (1973) 1 Serv LR 80 (the son in law of the selected candidate
was a member of the selection committee; the high court held that the doctrine of bias would apply where the relationship
between the adjudicator and a party before him was so close as to give rise to the reasonable likelihood of the adjudicator
espousing the course of the party as his own); Ashok Kumar Yadav v State of Haryana (1985) 4 SCC 417 [LNIND 1985 SC
197] [LNIND 1985 SC 197] [LNIND 1985 SC 197] (when a selection committee is constituted for the purpose of selecting
candidates on merits and one of its members happens to be closely related to a candidate appearing for the selection, such
member must withdraw not only from participation in the interview of the candidate related to him but altogether from the entire
selection process, otherwise all selections would be vitiated on account of reasonable likelihood of bias affecting the selection
process). See also Rasmirajan Das v Sarojkanta Behera AIR 1999 SC 2166, Rasmirajan Das v Sarojkanta Behera AIR 1999
SCW 2179, Rasmirajan Das v Sarojkanta Behera (1999) 9 JT 384 (however, if the member of the selection committee is a
distant relation of the candidate selected, the disqualification may not arise).
Some examples of personal bias are as follows:
(1) State of Uttar Pradesh v Mohammad Nooh AIR 1958 SC 86 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND
133 133
Page
1957 SC 99], State of Uttar Pradesh v Mohammad Nooh [1958] SCR 595 [LNIND 1957 SC 99] [LNIND 1957
SC 99] [LNIND 1957 SC 99], State of Uttar Pradesh v Mohammad Nooh (1968) SCJ 242 (a departmental
inquiry was held to be vitiated because at one stage, the inquiry officer left the inquiry, gave evidence against
the person against whom he was conducting the inquiry and then resumed the inquiry and gave his decision; it
is incongruous for a person to act both as a judge as well as a prosecutor or as a prosecution witness).
(2) Andhra Scientific Co Ltd v Seshgiri Rao AIR 1967 SC 408 [LNIND 1960 SC 340] [LNIND 1960 SC 340]
[LNIND 1960 SC 340], Andhra Scientific Co Ltd v Seshgiri Rao (1961) 2 LLJ 117 [LNIND 1960 SC 340]
[LNIND 1960 SC 340] [LNIND 1960 SC 340], Andhra Scientific Co Ltd v Seshgiri Rao (1961-62) 21 FJR 253
(an inquiry was commenced by the general manager of a factory against some workmen; after five witnesses
had been examined, the managing director took over the inquiry and examined the general manager as a
witness; the proceedings were quashed because apart from the incongruity of the person who was at the initial
state presiding over the inquiry stepping into the witness box at a later stage, the managing director who later
took over the inquiry was from the very beginning in charge of the prosecution and was active in securing
proper evidence to establish the charges against the workmen).
(3) Prem Bus Service (Private) Ltd, Barnala v Regional Transport Authority, Patiala AIR 1968 Punj 344, Prem Bus
Service (Private) Ltd, Barnala v Regional Transport Authority, Patiala 70 Pun LR 613 (if a member of a
tribunal recommends a particular applicant for a permit, he may be disqualified from sitting as the member of
the tribunal to decide the matter).
(4) S Parthasarathi v State of Andhra Pradesh AIR 1973 SC 2701 [LNIND 1973 SC 280] [LNIND 1973 SC 280]
[LNIND 1973 SC 280], S Parthasarathi v State of Andhra Pradesh (1973) SCC (Lab) 580, S Parthasarathi v
State of Andhra Pradesh (1973) 2 SCWR 484 (it was held to be wrong that a person who framed the charges
against a civil servant must himself sit as the inquiry officer in a disciplinary inquiry); see contra Sunil Kumar
Banerjee v State of West Bengal AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980
SC 136], Sunil Kumar Banerjee v State of West Bengal (1980) 3 SCC 304 [LNIND 1980 SC 136] [LNIND 1980
SC 136] [LNIND 1980 SC 136], Sunil Kumar Banerjee v State of West Bengal (1980) 2 SCJ 327 (where the
inquiry officer was one who had earlier drafted the charges against the civil servant and had given the advice
that there was material for holding the inquiry against him).
(5) See also Durga Shankar Kar v State of Orissa AIR 1982 Ori 20 [LNIND 1981 ORI 64] [LNIND 1981 ORI 64]
[LNIND 1981 ORI 64], Durga Shankar Kar v State of Orissa (1981) 52 Cut LT 402, Durga Shankar Kar v State
of Orissa (1982) 18 Co-op LJ 114 (the Deputy Registrar of Co-operative Societies was held not to be
disqualified where he was a member of a co-operative society and acting under the statute ordered its
suppression).
(6) Amar Nath Chowdhury v Braitheaited & Co Ltd (2002) 2 SCC 290 [LNIND 2002 SC 27] [LNIND 2002 SC 27]
[LNIND 2002 SC 27] (the Chairman-cum-Managing Director of the Company dismissed the appellant from
service; he appealed to the Board of Directors against the dismissal order; the Chairman presided over the
Board meeting which dismissed the appeal; the court stated that such a dual function was not permissible on
account of the rule against bias); The Financial Commissioner (Taxation) Punjab v Harbhajan Singh AIR 1996
SC 3287 [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199], The Financial
Commissioner (Taxation) Punjab v Harbhajan Singh (1996) 9 SCC 281 [LNINDORD 1996 SC 199]
[LNINDORD 1996 SC 199] [LNINDORD 1996 SC 199], The Financial Commissioner (Taxation) Punjab v
Harbhajan Singh (1996) 4 JT 326; Baidyanath Mahapatra v State of Orissa AIR 1989 SC 2218 [LNIND 1989
SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC 398]; K Chelliah v Chairman, Industrial Finance Corporation
of India AIR 1973 Mad 122 [LNIND 1971 MAD 281] [LNIND 1971 MAD 281] [LNIND 1971 MAD 281], K
Chelliah v Chairman, Industrial Finance Corporation of India (1972) 1 LLJ 510 [LNIND 1971 MAD 281] [LNIND
1971 MAD 281] [LNIND 1971 MAD 281] (disciplinary action by way of dismissal was taken by the chairman of
the corporation against an employee; there was a provision in the statute for an appeal from the chairman to
the Board of Directors; accordingly, the employee appealed to the Board of Directors; the chairman was an ex
officio member of the board and he participated in the meeting of the board in which the employee's appeal
against his own decision was considered; the board had also obtained chairman's comments on the appeal
preferred by the employee; the board rejected the appeal of the employee; the court quashed the board's order
on the ground of bias as the presence of the chairman created a reasonable impression in the party whose
rights were being adjudicated upon that there was a real likelihood of bias).
(7) PM Kurien v PS Raghavan AIR 1970 Ker 142 [LNIND 1968 KER 68] [LNIND 1968 KER 68] [LNIND 1968 KER
68], PM Kurien v PS Raghavan (1969) Ker LJ 243, PM Kurien v PS Raghavan (1969) Ker LT 253 (bias cannot
be attributed where hearing is entrusted to the very person who had decided earlier against the individual
concerned without a hearing; it is not to be presumed that a person who has once decided a matter without
due hearing would have such a bias in favour of his decision as not to be capable of reaching a fair decision
after due hearing); Chamba Singh v State of Uttar Pradesh AIR 1973 All 552; MC Joseph v State of Kerala
AIR 1973 Ker 216 [LNIND 1973 KER 41] [LNIND 1973 KER 41] [LNIND 1973 KER 41], MC Joseph v State of
Kerala (1973) Ker LT 366 [LNIND 1973 KER 41] [LNIND 1973 KER 41] [LNIND 1973 KER 41], MC Joseph v
State of Kerala (1973) Ker LR 533.
(8) J Mohapatra & Co v State of Orissa AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND
1984 SC 386], J Mohapatra & Co v State of Orissa (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC
386] [LNIND 1984 SC 386] (the state government appointed a committee under its administrative powers to
select books for purchase for school and college libraries; some of the members of the assessment committee
were themselves authors of books and some of these books were selected and purchased; it is not, therefore,
the actual bias in favour of the author members that is material but the possibility of such bias; all these
considerations require that an author member must not be a member of any such committee).
(9) Arjun Chaubey v Union of India AIR 1984 SC 1356 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984
134 134
Page
SC 90], Arjun Chaubey v Union of India (1984) 2 SCC 578 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND
1984 SC 90], Arjun Chaubey v Union of India (1984) 2 LLJ 17 [LNIND 1984 SC 90] [LNIND 1984 SC 90]
[LNIND 1984 SC 90] (the appellant was dismissed from railway service by the Deputy Chief Commercial
Superintendent; most of the charges levied against the said employee related to his conduct qua the Deputy
Chief Commercial Superintendent who himself considered the employee's representation and passed the
dismissal order; the order was quashed by the Supreme Court, as the said Deputy Chief Commercial
Superintendent sat as a judge in his own case).
(10) Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986
SC 394] [LNIND 1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1986) 4 SCC 537
[LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394], Institute of Chartered Accountants of India
v L K Ratna (1986) JT 671(in a matter of disciplinary action against a chartered accountant, the procedure as
prescribed by the Chartered Accountants Act 1949 is as follows: first, the complaint against the chartered
accountant is investigated by the disciplinary committee consisting of the President, Vice-President and three
members of the Council of the Institute of Chartered Accountants; the report of the disciplinary committee is
then considered by the Council which is the final decision-making authority of the institute; the members of the
disciplinary committee ought not to attend the meeting of the Council held to consider the report of the
disciplinary committee because of bias; if one the disciplinary committee has expressed the view that the
concerned chartered accountant is guilty, it may be difficult for the members of the committee to consider the
matter with an open mind while deliberating on the inquiry report in the Council, the final decision making body;
the function of the Council being quasi-judicial, justice must not only be done but must also appear to be done;
though the statute was silent on the point, the court ruled that the principles of natural justice must be read into
the unoccupied interstices of the statute, unless there is a clear mandate to the contrary; presence of the
members of the disciplinary committee in the Council meeting would create a legitimate apprehension in the
mind of the person whose conduct has been investigated by the disciplinary committee that these members
would maintain their opinion expressed by them in the committee's report and would press for the acceptance
of the report by the Council).
(11) Ranjit Thakur v Union of India AIR 1987 SC 2386 [LNIND 1987 SC 964] [LNIND 1987 SC 964] [LNIND 1987
SC 964], Ranjit Thakur v Union of India (1987) 5 JT 93, Ranjit Thakur v Union of India (1987) 3 JJ Rep 658.
8 Metropolitan Properties Co (FGC) Ltd v Lannon [1969] 1 QB 577 at 606, Metropolitan Properties Co (FGC) Ltd v Lannon
[1968] 3 All ER 304 (in considering whether there was a real likelihood of bias, the court does not look at the mind of the
adjudicator himself; the court does not look to see if he did in fact favour one side at the expense of the other; the court looks at
the impression which would be given to other people).
Hannam v Bradford City Council [1970] 2 All ER 690, Hannam v Bradford City Council [1970] 1 WLR 937 CA, (if a reasonable
person who has no knowledge of the matter beyond knowledge of the relationship which subsists between some members of
the tribunal and one of the parties would think that there might well be bias, then there is in his opinion a real likelihood of bias);
R v Kent Police Authority, exp Godden [1971] 2 QB 662, R v Kent Police Authority, exp Godden [1971] 3 All ER 20 CA,.
See also De Smith, 'Judicial Review of Administrative Action' (1980)pp 262 and 264; Wade, 'Bias--A Question of Appearance
or Reality' v (1969) 85 LQR 23; Jackson, 'Natural Justice' (1979)pp 26-32,50.
10 Manak Lal v Prem Chand AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154], Manak Lal
v Prem Chand (1957) SCJ 359, Manak Lal v Prem Chand [1957] SCR 575 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND
1957 SC 154] (a complaint alleging professional misconduct was filed against the petitioner by the respondent; the Bar Council
Tribunal, appointed by the Chief Justice of the high court to inquire into the alleged misconduct of the petitioner, consisted of the
chairman and two other members; the chairman had earlier represented the respondent in a case; he was a senior advocate
and was once the Advocate-General of the state; the Supreme Court had no hesitation in assuming that the chairman had no
personal contact with his client and did not even remember that he had once appeared for him in some proceeding and the
court was thus satisfied that there was no real likelihood of bias but still the court ruled that the chairman was disqualified on the
ground that justice not only be done but must appear to be done to the litigating public).
11 GN Nayak v Goa University (2002) 2 SCC 712 [LNIND 2002 SC 958] [LNIND 2002 SC 958] [LNIND 2002 SC 958] (it is
sufficient for a litigant to successfully impugn an action by establishing a reasonable probability of bias or by proving
circumstances from which the operation of influences affecting a fair assessment of the merits of the case can be inferred);
Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant [2001] 3 LRI 406, Kumaon Mandal Vikas Nigam Ltd v Girja Shankar
v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] (the respondent
was dismissed from service by the Kumaon Mandal Vikas Nigam; the dismissal order was challenged on the ground of bias of
the disciplinary authority; quashing the dismissal order, the Supreme Court asserted that conceptually, the issue of bias ought
to be decided on the facts and circumstances of the individual case; the test, therefore, is as to whether a mere apprehension of
bias or there being a real danger of bias and it is on this score that the surrounding circumstances must and ought to be
collated and necessary conclusion drawn therefrom; an administrative action cannot be sustained if there exists a real danger of
bias; on the other hand, a fanciful allegation of bias would not vitiate the proceedings); State of Punjab v VK Khanna [2001] 4
LRI 400, State of Punjab v VK Khanna AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC
135 135
Page
1707], State of Punjab v VK Khanna (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]
(in the instant case, the Government of Punjab issued a charge sheet against the respondent who was the former Chief
Secretary to the government; even before the respondent could file his reply, the Chief Minister announced the appointment of
an inquiry officer to go into the charges against the respondent; this was held to show bias against the respondent; in service
jurisprudence, the disciplinary authority has to apply its mind upon receipt of reply to the charge-sheet or the show-cause
notice, as to whether a further inquiry is called for; only thereafter, the inquiry follows and not otherwise; however, since here
the inquiry officer was appointed even before receiving the reply of the delinquent officer and without applying his mind on
whether in the light of the reply of the concerned officer, a further inquiry was called for; this fact along with the tenor of the
charge sheet showed bias on the part of the government; bias admittedly negates fairness and reasonableness by reason of
which arbitrariness and mala fide may creep in); G Sarana v University of Lucknow AIR 1976 SC 2428 [LNIND 1976 SC 239]
[LNIND 1976 SC 239] [LNIND 1976 SC 239], G Sarana v University of Lucknow (1976) 3 SCC 585 [LNIND 1976 SC 239]
[LNIND 1976 SC 239] [LNIND 1976 SC 239], G Sarana v University of Lucknow [1977] 1 SCR 64 [LNIND 1976 SC 239] [LNIND
1976 SC 239] [LNIND 1976 SC 239] (the petitioner was a candidate for a professor's post in a university; he challenged the
recommendations of the select committee on the ground that two members of the committee were personally biased against
him and were favourable to the candidate recommended by the selection committee for appointment to the post; though the
court refrained from applying the rule against bias because of waiver on the part of the petitioner, yet the court made certain
observations on the test for bias; while doing so, the court adopted various expressions used from time to time in various cases;
the court remarked that what had to be seen was whether there was a reasonable ground for believing that he was likely to
have been biased); R v Gough [1993] 2 All ER 726 (having ascertained the relevant circumstances, the court must ask itself
whether, having regard to those circumstances, there was a real danger of bias on the part of the relevant member of the
tribunal in question, in the sense that he might unfairly regard with favour or disfavour, the case of a party to the issue under
consideration by him).
12 Rattan Lal Sharma v Managing Committee, Hari Ram (Co-education) Higher Secondary School AIR 1993 SC 2155 [LNIND
1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471], Rattan Lal Sharma v Managing Committee, Hari Ram
(Co-education) Higher Secondary School (1993) 4 SCC 10 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471],
Rattan Lal Sharma v Managing Committee, Hari Ram (Co-education) Higher Secondary School (1993) 3 SCJ 148; Ranjit
Thakur v Union of India AIR 1987 SC 2386 [LNIND 1987 SC 964] [LNIND 1987 SC 964] [LNIND 1987 SC 964], Ranjit Thakur v
Union of India (1987) 5 JT 93, Ranjit Thakur v Union of India (1987) 3 JJ Rep 658 (as to the test of the likelihood of bias what is
relevant is the reasonableness of the apprehension in that regard in the mind of the party; the proper approach for the judge is
to look at the mind of the party before him); Manak Lal v Prem Chand AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957
SC 154] [LNIND 1957 SC 154], Manak Lal v Prem Chand (1957) SCJ 359, Manak Lal v Prem Chand [1957] SCR 575 [LNIND
1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154] (the court ruled that actual proof of prejudice was not necessary;
that reasonable ground for assuming the possibility of bias was sufficient; the court emphasised that a judge must be able to act
judicially, objectively and without any bias; that in such cases, the test is not whether in fact bias has affected the judgment but
whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against
him in the final decision of the tribunal); Bhupendra Kumar Singhal v PR Mehta AIR 1990 Guj 49; Chamba Singh v State of
Uttar Pradesh AIR 1973 All 552; K Chelliah v Chairman, Industrial Finance Corporation of India AIR 1973 Mad 122 [LNIND
1971 MAD 281] [LNIND 1971 MAD 281] [LNIND 1971 MAD 281], K Chelliah v Chairman, Industrial Finance Corporation of India
(1972) 1 LLJ 510 [LNIND 1971 MAD 281] [LNIND 1971 MAD 281] [LNIND 1971 MAD 281].
13 Tata Cellular v Union of India AIR 1996 SC 11 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India
(1996) 1 Bank CLR 1 (a reasonable and fair minded person, sitting in a court and knowing all the relevant facts must have a
reasonable suspicion that a fair trial for the appellant was not possible); S Parthasarathy v State of Andhra Pradesh AIR 1973
SC 2701 [LNIND 1973 SC 280] [LNIND 1973 SC 280] [LNIND 1973 SC 280], S Parthasarathy v State of Andhra Pradesh
(1973) SCC (Lab) 580, S Parthasarathy v State of Andhra Pradesh (1973) 2 SCWR 464 [LNIND 1973 SC 280] [LNIND 1973 SC
280] [LNIND 1973 SC 280] (the reviewing authority must make a determination on the basis of the whole evidence before it,
whether a reasonable man would in the circumstances infer that there is real likelihood of bias; the court must look at the
impression which other people have; if right minded persons would think that there is real likelihood of bias on the part of an
inquiring officer, he must not conduct the inquiry; nevertheless, there must be a real likelihood of bias; surmise or conjecture
would not be enough; there must exist, circumstances from which reasonable men would think it probable or likely that the
inquiring officer will be prejudiced against the delinquent; the court will not inquire whether he was really prejudiced; if a
reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to
quash the decision)
14 State of Punjab v VK Khanna [2001] 4 LRI 400, State of Punjab v VK Khanna AIR 2001 SC 343 [LNIND 2000 SC 1707]
[LNIND 2000 SC 1707] [LNIND 2000 SC 1707], State of Punjab v VK Khanna (2001) 2 SCC 330 [LNIND 2000 SC 1707]
[LNIND 2000 SC 1707] [LNIND 2000 SC 1707] (the expression 'real danger' seems to be more restrictive than the expression
'real likelihood' of bias; however, the Supreme Court has asserted that both the expressions are synonymous; 'real likelihood of
bias' was to be assessed with reference to reasonable men and 'real danger of bias' has to be assessed by the court itself on
the basis of facts and circumstances in the specific case from its own perspective and not that of the reasonable men).
15 GN Nayak v Goa University (2002) 2 SCC 712 [LNIND 2002 SC 958] [LNIND 2002 SC 958] [LNIND 2002 SC 958].

136 136
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Policy bias
[005.077] Policy bias In many adjudicatory proceedings before a bureaucrat-adjudicator, one of the parties
is usually the department itself. Therefore, an administrator being a part and parcel of the department may
imbibe an official or a policy bias and may be interested in projecting and pursuing departmental policies. An
administrator-adjudicator cannot develop the same kind of neutrality and objectivity towards the issues and
policies' being canvassed before him as is the characteristic of a judge. However, mere official or policy bias
does not disable an official from acting as an adjudicator. If an official arrives at a decision in a matter, after
giving full consideration to the issues involved and following natural justice in all respects, then the
proceedings taken before him are not vitiated merely because he is connected with a department which is
also a party to the dispute before him1.
A policy bias will vitiate proceedings if the adjudicatory authority is the secretary or some other official of the
department concerned and not if he is a merely a minister, as the former is a part of the department but the
latter is only primarily responsible for the disposal of the business pertaining to that department2.
An administrator may however, become disqualified from acting as an adjudicator and deciding a dispute
involving departmental policy if he has exhibited such an abnormal desire to uphold the particular
departmental policy or is too much personally involved or identified with the formulation and implementation
of the policy, that it could be said that he has a completely closed mind as regards the issues arising before
him and that he is no longer fit to sit as an adjudicator3. Only a blatant or very strong policy bias will operate
as disqualification4.
1 Hindustan Petroleum Corporation Ltd v Yeshwant Gajanan Joshi AIR 1991 SC 933 [LNIND 1990 SC 763] [LNIND 1990 SC
763] [LNIND 1990 SC 763], Hindustan Petroleum Corporation Ltd v Yeshwant Gajanan Joshi AIR 1991 SCW 208, Hindustan
Petroleum Corporation Ltd v Yeshwant Gajanan Joshi (1991) 1 JT 38 [LNIND 1990 SC 763] [LNIND 1990 SC 763] [LNIND
1990 SC 763] (the corporation, a statutory body, was acquiring land to lay down a pipeline; to assess compensation for the land
acquired, an employee of the corporation itself was appointed by the government as the competent authority; it was argued that
the corporation was an interested party and therefore, its employee ought not to have been appointed for the purpose; the
Supreme Court ruled that an employee of the corporation could be appointed as the competent authority under the relevant Act
to assess compensation for the right of user in land acquired by the corporation to lay down the pipe line as it could not be
assumed that merely because a person is an employee of the corporation, he would have a bias in deciding the compensation;
that it would be too broad a proposition to extend the theory of bias to exclude persons only because such person draws his
salary from the bodies take public corporation, state government or Central Government; however, if there is sufficient material
for the purpose, appointment of a particular officer can be challenged on the ground of bias; in the instant case, however, the
court accepted the argument that, on the facts, the competent authority might have been biased against the respondent while
assessing compensation).
Gulapalli Nageswara Rao v Andhra Pradesh State Road Transport Corporation AIR 1959 SC 308 [LNIND 1958 SC 139]
[LNIND 1958 SC 139] [LNIND 1958 SC 139], Gulapalli Nageswara Rao v Andhra Pradesh State Road Transport Corporation
(1959) SCJ 967, Gulapalli Nageswara Rao v Andhra Pradesh State Road Transport Corporation (1959) 2 Andh WR (SC) 156
(the question of objections against a scheme of nationalisation of transport routes prepared by the transport department was
involved; before the government could finalise the scheme, it was necessary for the government to hear objections against the
scheme; the Supreme Court thought that while the secretary to the department being an integral part of the department was too
much involved with departmental matters would not be able to bring an open mind to bear upon the objections raised against
the scheme and so disqualified to hear objections against the proposed scheme, the minister may hear the objections against
the departmental scheme); Samarth Transport Co Private Ltd v Y B Chavan AIR 1961 Bom 80 [LNIND 1960 BOM 27] [LNIND
1960 BOM 27] [LNIND 1960 BOM 27], Samarth Transport Co Private Ltd v Y B Chavan (1960) ILR Bom 978, Samarth
Transport Co Private Ltd v Y B Chavan 62 Bom LR 952 (a minister is not a part of the department). See also Gullapalli
Nageswara Rao v Andhra Pradesh State Transport Corporation AIR 1959 SC 1376 [LNIND 1959 SC 143] [LNIND 1959 SC
143] [LNIND 1959 SC 143], Gullapalli Nageswara Rao v Andhra Pradesh State Transport Corporation (1960) SCJ 53 [LNIND
1959 SC 143] [LNIND 1959 SC 143] [LNIND 1959 SC 143], Gullapalli Nageswara Rao v Andhra Pradesh State Transport
Corporation (1960) 1 Mad LJ (SC) 13.
See however T Govindaraja Mudaliar v The State of Tamil Nadu AIR 1973 SC 974 [LNIND 1973 SC 3] [LNIND 1973 SC 3]
[LNIND 1973 SC 3], T Govindaraja Mudaliar v The State of Tamil Nadu (1973) 1 SCC 336 [LNIND 1973 SC 3] [LNIND 1973 SC
3] [LNIND 1973 SC 3] (the Government of Madras took a policy decision to nationalise certain bus routes; the government then
appointed an ad hoc committee to work out the details for implementing the policy decision; one of the members of the
committee was the Secretary, Department of Home Affairs; after submission of the report by the committee, the scheme was
137 137
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published, under the Motor Vehicles Act 1988 by the Secretary, Department of Industries; objections against the scheme were
heard by the Secretary, Department of Home Affairs, who was authorised to do so under the Rules of Business; objections
were raised to such a hearing on the ground of policy bias as he had participated in the policy decision as a member of the
committee and then he himself heard objections against the scheme in the formulation of which he had participated and, thus,
he acted as a judge in his own cause; the Supreme Court rejected the objection to hearing on the ground of bias, by the
Secretary, Department of Home Affairs, who was a member of the committee drafting the scheme in question; the court ruled
that the said committee was only advisory in character and it did not involve a pre-determination of the issue involved); Malik
Ram v State of Rajasthan AIR 1961 SC 1575 [LNIND 1961 SC 174] [LNIND 1961 SC 174] [LNIND 1961 SC 174].
3 HC Narayanappa v State of Mysore AIR 1960 SC 1073 [LNIND 1960 SC 141] [LNIND 1960 SC 141] [LNIND 1960 SC 141],
HC Narayanappa v State of Mysore [1960] 3 SCR 742 [LNIND 1960 SC 141] [LNIND 1960 SC 141] [LNIND 1960 SC 141], HC
Narayanappa v State of Mysore (1961) 1 SCJ 7 [LNIND 1960 SC 141] [LNIND 1960 SC 141] [LNIND 1960 SC 141]; JY
Kondala Rao v Andhra Pradesh State Road Transport Corporation AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC
201] [LNIND 1960 SC 201], JY Kondala Rao v Andhra Pradesh State Road Transport Corporation [1961] 1 SCR 642 [LNIND
4 JY Kondala Rao v Andhra Pradesh State Transport Corporation AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960 SC
201] [LNIND 1960 SC 201](the Minister of Transport heard objections against some schemes of nationalisation of bus routes
prepared by the transport corporation; the Minister, a few days earlier, had presided over a meeting of an official committee
which had decided in favour of nationalisation of some of these routes; the hearing by him was sought to be challenged on the
ground that he had already predetermined the issue and so was disqualified to decide the dispute between the petitioner and
the transport undertaking; the court rejected the argument holding that the transport undertaking was a statutory corporation
and though subject to some government control, yet was not a government department and the government decided the matter
in the exercise of its statutory duty; the committee's decision was not a final and irrevocable decision; it was only a
policy-decision which meant that the committee advised the government to implement the policy of nationalisation of bus
services and this decision did not involve a pre-determination of the issue; it only meant that the policy would be implemented
subject to the provisions of the Act; the court adopted the following remarks from an earlier case; it is also true that the
government on whom the duty to decide the dispute rests, is substantially a party to the dispute but if the Government or the
authority to whom the power is delegated acts judicially in approving or modifying the scheme, the approval or modification is
not open to challenge on a presumption of bias; the minister or the officer of the government who is invested with the power to
hear objections to the scheme is acting in his official capacity and, unless there is reliable evidence to show that he is biased,
his decision will not be liable to be called in question, merely because he is a limb of the government); Blaze and Central (P)
Ltd v Union of India AIR 1980 Kant 186 [LNIND 1980 KANT 73] [LNIND 1980 KANT 73] [LNIND 1980 KANT 73](a nationalised
bank initiated eviction proceedings against one of its tenants under the Public Premises (Eviction of Unauthorised Occupants)
Act 1971; the bank was interested in having the premises vacated for its own use; the matter was heard and decided against
the tenant by the regional officer of the bank itself who was acting as the estate officer under the said Act; the court quashed the
eviction order as the likelihood of bias animating the mind of the estate officer was inevitable and its exercise was very much
conscious and unconscious); Accounting & Secretarial Services Pvt Ltd v Union of India AIR 1993 Cal 102 [LNIND 1993 CAL
66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66](several bus operators applied for renewal of their stage carriage permits to the
Karnataka State Transport Authority; the Karnataka State Road Transport Corporation also applied for permits on these routes;
the chairman of the Transport Authority at the time was a member of the board of directors of the corporation; the court ruled
that a member of the board of directors of the corporation would be disqualified to act either as a member or the chairman of the
Transport Authority); KR Bhaskarananda v State of Karnataka AIR 1990 Kant 181, KR Bhaskarananda v State of Karnataka
(1989) ILR Kant 1788; Prakash Chandra Sahu v Managing Director, ORT Co AIR 1980 Ori 122 [LNIND 1979 ORI 23] [LNIND
1979 ORI 23] [LNIND 1979 ORI 23], Prakash Chandra Sahu v Managing Director, ORT Co (1979) 2 ILR Cut 26(the Minister for
Transport initiated the scheme of nationalisation of certain bus routes in the state; he also later heard the objections against the
scheme under Motor Vehicles Act 1988 s 68D(2) and approved it with some modifications; it was argued that the minister
having initiated and inspired the scheme in his capacity as a minister and having thereby prejudged the matter, was disqualified
from hearing the objections to the scheme; however, the court rejected the contention; the court stated that the state
government, while deciding a dispute under s 68D(2) between the State Transport Undertaking and the objectors discharged
only its statutory function; to prove personal bias there must be reliable evidence adduced by the parties).

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(4) BIAS/C. EXCLUSION OF
BIAS/[005.078] Statute may exclude bias
[005.078] Statute may exclude bias A law may exclude the rule against bias in a specific situation and may
make a person a judge in his own cause. A statutory provision may obligate an official to decide a matter
irrespective of his own interest in the matter. The adjucatory power may be conferred on a specific official
and when there is no one else to adjudicate upon the concerned cases. In such a situation, the concerned
official may have to adjudicate upon a case in the facts of which bias may be imputed to him. This is because
of the principle that while a statute can exclude natural justice, natural justice cannot override a statute1.
138 138
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1 B K Mehra v Life Insurance Corporation AIR 1991 Cal 256 [LNIND 1990 CAL 182] [LNIND 1990 CAL 182] [LNIND 1990 CAL
182], B K Mehra v Life Insurance Corporation (1991) 1 Cal LJ 86 [LNIND 1990 CAL 182] [LNIND 1990 CAL 182] [LNIND 1990
CAL 182], B K Mehra v Life Insurance Corporation (1991) 95 Cal WN 394; M Madhavan Pillai v KA Balan AIR 1979 Ker 120
[LNIND 1978 KER 266] [LNIND 1978 KER 266] [LNIND 1978 KER 266], M Madhavan Pillai v KA Balan (1979) Ker LT 220, M
Madhavan Pillai v KA Balan (1979) ILR 1 Ker 374 (the appellant argued that when the management itself was the accuser and
the prosecutor, it could not also conduct the inquiry as no one could be a judge in his own cause; rejecting the argument, the
court emphasised that to accept the argument would totally efface the statutory provision under which the only agency to
enquire and take disciplinary action was the management and none else; natural justice cannot prevail against an express
statutory provision); Franklin v Minister of Town and Country Planning [1948] AC 87, Franklin v Minister of Town and Country
Planning [1947] 2 All ER 289, HL.

BIAS/[005.079] Necessity excludes bias
[005.079] Necessity excludes bias Necessity is an exception to the rule against bias as it excludes bias. An
adjudicator who is subject to disqualification on account of bias may, nevertheless, have to adjudicate if:
(1) no other person competent to adjudicate is available; or

(2) a quorum cannot be formed without him; or
(3) no other competent tribunal can be constituted.
In such a situation, the rule against bias has to give way to the necessity1.
An adjudicator, who is subject to disqualification on the ground of bias or interest in the matter that he has to
decide, may be required to adjudicate if there is no other person who is competent or authorised to
adjudicate or if no other competent tribunal can be constituted2. Where there is no other authority or judge to
decide the issue, the doctrine of necessity may be invoked. If the doctrine of necessity is not allowed full play
in certain unavoidable situations, it would impede the course of justice itself and the defaulting party would
benefit therefrom. If the choice is between allowing a biased person to act or to stifle the action altogether,
the choice must fall in favour of the former, as it is the only way to promote decision making3. Thus, in such
cases, the principle of natural justice would have to give way to necessity for otherwise there would be no
means of deciding the matter and the machinery of justice or administration would break down. However,
where alternative arrangements can be made, the doctrine of necessity cannot be applied4.
1 J Mohapatra & Co v State of Orissa AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J
Mohapatra & Co v State of Orissa (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386].
(1996) 1 Bank CLR 1; Charan Lal Sahu v Union of India AIR 1990 SC 1480 [LNIND 1989 SC 639] [LNIND 1989 SC 639]
[LNIND 1989 SC 639](even if all the members of the tribunal competent to determine a matter were subject to disqualification,
they might be authorised and obligated to hear that matter by virtue of the operation of the common law doctrine of necessity;
an adjudicator who is subject to disqualification on the ground of bias or interest in the matter which he has to decide may in
certain circumstances be required to adjudicate if there is no other person who is competent or authorised to be adjudicator or if
a quorum cannot be formed without him or if no other competent tribunal can be constituted); Ashok Kumar Yadav v State of
Haryana AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197], Ashok Kumar Yadav v State of
Haryana (1985) 4 SCC 417 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197], Ashok Kumar Yadav v State of
Haryana (1986) Lab IC 1417.
3 Badrinath v Government of Tamil Nadu (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC
1324]; Election Commission of India v Subramaniam Swamy AIR 1996 SC 1810 [LNIND 1996 SC 843] [LNIND 1996 SC 843]
[LNIND 1996 SC 843], Election Commission of India v Subramaniam Swamy (1996) 4 SCC 104 [LNIND 1996 SC 843] [LNIND
1996 SC 843] [LNIND 1996 SC 843], Election Commission of India v Subramaniam Swamy (1996) 4 JT 463(the question of
disqualification of a member of a Legislature is decided by the Election Commission under the Constitution of India arts 103(2)
and 192 (2); while discharging this function, the commission acts in a quasi-judicial capacity and therefore, it follows the
principles of natural justice, one of which is the rule against bias; here the commission was called upon to decide the question
139 139
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of disqualification against Jayalalitha, a member of the Tamil Nadu Legislative Assembly; there was suspicion of bias again
Seshan who was the Chief Election Commissioner ('CEC') and the Chairman of the Election Commission; the lawyer wife of the
complainant was professionally engaged as the counsel by Seshan in a case filed against him; in these circumstances, the
Supreme Court directed that the CEC must excuse himself from participating in the decision in the first instance and let the two
other members of the commission decide the issue; if the two members are able to reach a unanimous decision, then there is
the no need for the CEC to participate; in case the two members differ, then it would become necessary for the CEC to express
his opinion on the ground of necessity).
4 Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND
1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1986) 4 SCC 537 [LNIND 1986 SC 394] [LNIND 1986
SC 394] [LNIND 1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1986) JT 671; Rattan Lal Sharma v
Managing Committee, Hari Ram (Co-education) Higher Secondary School AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND
1993 SC 471] [LNIND 1993 SC 471], Rattan Lal Sharma v Managing Committee, Hari Ram (Co-education) Higher Secondary
School (1993) 4 SCC 10 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471], Rattan Lal Sharma v Managing
Committee, Hari Ram (Co-education) Higher Secondary School (1993) 3 SCJ 148; J Mohapatra & Co v State of Orissa AIR
1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J Mohapatra & Co v State of Orissa (1984) 4
SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386].

BIAS/[005.080] Waiver of bias
[005.080] Waiver of bias A person may waive his objection to the dispute being adjudicated by a biased
person or a person having an interest in the dispute. Waiver may be express or implied. Objection may be
inferred to have been waived if the concerned party:
(1) knows that the adjudicator is disqualified because of bias; or

(2) knows that he has a right to object thereto; or
(3) he acquiesces in the proceedings by failing to take an objection at the earliest opportunity1.
Waiver of rights by an individual must not be inferred lightly2. Waiver is an intentional act done with
knowledge and not an unconscious act. There can be no waiver, unless the person concerned is fully
conscious of his right and he then intentionally abandons the same3.
However, if there is blatant display of bias on part of the adjudicator which is likely to undermine public
confidence in the adjudicatory system, it is a matter of concern not only to the litigant but also to the public at
large, as well as the country's legal system and thus, it must not be condoned on the basis of private waiver4.
1 Vidya Parkash v Union of India AIR 1988 SC 705 [LNIND 1988 SC 108] [LNIND 1988 SC 108] [LNIND 1988 SC 108], Vidya
Parkash v Union of India (1988) 1 JT 284(a summary court-martial held under the Army Act 1950 s 116 was presided over by
the commanding officer of the corps; the petitioner was dismissed after trial; he was tried for absenting without leave; the
validity of the proceedings of the court martial were challenged on the ground of bias on the part of the commanding officer; the
Supreme Court however dismissed the plea on the ground that the petitioner had failed to raise the objection before the
court-martial); State of Madhya Pradesh v Ashok Deshmukh AIR 1988 SC 1240 [LNIND 1988 SC 312] [LNIND 1988 SC 312]
[LNIND 1988 SC 312]; G Sarana v University of Lucknow AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239]
[LNIND 1976 SC 239], G Sarana v University of Lucknow (1976) 3 SCC 585 [LNIND 1976 SC 239] [LNIND 1976 SC 239]
[LNIND 1976 SC 239], G Sarana v University of Lucknow (1976) 2 SCWR 213 [LNIND 1976 SC 239] [LNIND 1976 SC 239]
[LNIND 1976 SC 239]; Manak Lal v Prem Chand AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957
SC 154], Manak Lal v Prem Chand (1957) SCJ 359, Manak Lal v Prem Chand [1957] SCR 575 [LNIND 1957 SC 154] [LNIND
1957 SC 154] [LNIND 1957 SC 154].
2 Manak Lal v Prem Chand AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND 1957 SC 154], Manak Lal v
Prem Chand (1957) SCJ 359, Manak Lal v Prem Chand [1957] SCR 575 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND
1957 SC 154] (it is true that waiver cannot always and in every case be inferred merely from the failure of the party to take the
objection; waiver can be inferred only if and after it is shown that the party knew about the relevant facts and was aware of his
right to take the objection in question).
3 The King v Esssex Justices, exp Perkins (1927) 2 KB 475 (waiver on acquiescence presupposes that the person to be bound
is fully cognisant of his rights and that being so, he neglects to enforce them or chooses one benefit instead of another of which
140 140
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he might claim; if the applicant was not fully cognisant of his right to take objection, he could not be said to have waived his right
by failing to exercise it; waiver presupposes an intention to forgo a right).
Rattan Lal Sharma v Managing Committee, Hari Ram (Co-education) Higher Secondary School (1993) 3 SCJ 148; J
Mohapatra & Co v State of Orissa AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J
Mohapatra & Co v State of Orissa (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386].

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(4) BIAS/D. MISCELLANEOUS/[005.081]
Combining functions of prosecutor and judge
[005.081] Combining functions of prosecutor and judge An administrative agency may be given the
power to initiate proceedings against alleged violations of law and also to sit in judgment over the matter.
When one and the same official discharges such a dual function then, it indicates bias, unless clearly
permitted by legislation. However, if the person adjudicating is different from the person prosecuting, then the
proceedings may not be flawed on account of bias merely because both the functions are being discharged
within the same department1.
1 Hari Khemu Gawali v Deputy Commissioner of Police, Bombay AIR 1956 SC 559 [LNIND 1956 SC 42] [LNIND 1956 SC 42]
[LNIND 1956 SC 42](an externment order served by the Deputy Commissioner of Police under the Bombay Police Act 1951 s
57, was challenged on the ground that the proceedings were initiated by the police and it was the police which was the judge in
the case also and that it was against natural justice that the prosecutor must be the judge; the Supreme Court, however,
pointed out that the evidence or material on the basis of which a person could be proceeded against was collected by a police
officer of lower rank; the proceeding for externment could be initiated by a police officer above the rank of the inspector who had
to inform the person proceeded against of the general nature of the material allegations against him; however, the order of
externment could be passed only by a commissioner of police or a district magistrate; hence, the satisfaction was not that of the
person prosecuting but that of the police officer of a higher rank; it, therefore, did not matter if the prosecution and conviction
both were done by one and the same department, so long as the two functions were discharged by separate officers).

Predisposition of adjudicator
[005.082] Predisposition of adjudicator If an official has already made up his mind regarding the issues
involved and to be raised at the hearing, then the very purpose of hearing may be frustrated. The purpose of
hearing is to inform the administration about the issues so that it may take a correct decision1.
However, unless a prior policy statement shows a final and irrevocable decision and foreclosing of the mind
of the authority as to the merits of the case before it, it would not operate as a disqualificaiton2. So long as
the adjudicator's mind is not irrevocably closed, he may decide a matter even though his predisposition to
certain issues is known to the parties3.
Bias also arises when the adjudicator has a preconceived opinion or a pre-determination to decide a case or
an issue in a particular manner so much so that such pre-disposition does not leave the mind open to
conviction. Since in such cases, it is a conditioned mind, which sways judgment and renders the judge
unable to exercise impartiality in a particular case, the adjudicator is disqualified4.
There is a difference between pre-judging of facts specifically relating to a party and pre-conceptions or
pre-dispositions about general questions of law, policy or discretion affecting a large number of persons. The
former must disqualify the adjudicator but in the latter case, a greater leeway may be permissible5. However,
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when in a farcical situation, various separate and distinct issues arise, a person who has already decided
one of such issues may not be incompetent to decide the other or others as the judgment in one does not
amount to pre-judging the other issues6.
1 Premchand Jain v State of Madhya Pradesh AIR 1966 MP 117, Premchand Jain v State of Madhya Pradesh (1966) MP LJ
305 (in an inquiry into objections to a scheme prepared by the Department of Transport under Motor Vehicles Act 1939 s
68D(2), the inquiry officer did not consider the objections raised but decided to approve the scheme on the basis of
considerations of policy; characterising the inquiry as farcical because the mind of the inquiry officer was foreclosed as regards
the objections raised to the scheme, the court quashed the scheme and held that the decision to approve the scheme or not
must be based not on considerations of policy but on the conclusions which he comes to with regard to the objections).
2 JY Kondala Rao v Andhra Pradesh State Road Transport Corporation AIR 1961 SC 82 [LNIND 1960 SC 201] [LNIND 1960
SC 201] [LNIND 1960 SC 201], JY Kondala Rao v Andhra Pradesh State Road Transport Corporation [1961] 1 SCR 642
[LNIND 1960 SC 201] [LNIND 1960 SC 201] [LNIND 1960 SC 201]. See also Gullapalli Negeswara Rao v State of Andhra
Pradesh Road Transport Corporation AIR 1956 SC 308, Gullapalli Negeswara Rao v State of Andhra Pradesh Road Transport
Corporation (1959) SCJ 967, Gullapalli Negeswara Rao v State of Andhra Pradesh Road Transport Corporation (1959) 2 Andh
WR (SC 156).
State of West Bengal v Shivananda Pathak AIR 1998 SC 2050, State of West Bengal v Shivananda Pathak (1998) 5 SCC 513,
State of West Bengal v Shivananda Pathak (1998) 3 JT 701 [LNIND 1998 SC 184] [LNIND 1998 SC 184] [LNIND 1998 SC
184].
See Griffith and Street, 'Principle of Administrative Law ' (1973)p 155; De Smith, 'Judicial Review of Administrative Action'
(1980)p 272.
4 P Sreeramulu v State AIR 1970 AP 114 [LNIND 1969 AP 49] [LNIND 1969 AP 49] [LNIND 1969 AP 49](the Deputy
Superintendent of Police in his charge-memo, to a head constable and a police constable, expressed in categorical terms his
opinion that the employees had abused their position and brought discredit to the department; the court ruled that the
proceedings were vitiated and stressed that one of the principles of natural justice is that where an officer has expressed
definite views on the conduct of a delinquent officer, he will not be permitted to hold the inquiry; since the Deputy
Superintendent had expressed a categorical opinion which indicated bias or at any rate, a fear or apprehension in the mind of
the delinquent that he had no hope or chance of a fair trial and this would vitiate the proceedings).
5 P Sreeramulu v State of Andhra Pradesh AIR 1970 AP 114 [LNIND 1969 AP 49] [LNIND 1969 AP 49] [LNIND 1969 AP 49];
Joti Prashad v Supdt of Police AIR 1958 Punj 327, Joti Prashad v Supdt of Police 59 Pun LR 532, Joti Prashad v Supdt of
Police (1957) ILR Punj 2011; K Subba Rao v State of Hyderabad AIR 1957 AP 414, K Subba Rao v State of Hyderabad (1957)
Andh LT 155, K Subba Rao v State of Hyderabad (1957) 1 Andh WR 172 (the inquiry officer was not qualified to conduct
hearing against the petitioner for his removal from service, since prior to the inquiry he had expressed a strong view that he
must he dismissed from service on account of his abnormal mental condition).
6 The Registrar, Co-operative Societies v Dharam Chand AIR 1961 SC 1743 [LNIND 1961 SC 212] [LNIND 1961 SC 212]
[LNIND 1961 SC 212], Co-operative Societies v Dharam Chand (1961) (31) Com Cas 454 (because of defalcation by the
manager of a cooperative bank, the Registrar of the Co-operative Societies issued a showcause notice to the managing
committee as to why it must not be suspended and later suspended the same on charges of mismanagement; a few
shareholders then claimed the entire money from the members of the managing committee; the Registrar himself undertook to
arbitrate in the matter as he could do under the relevant law; it was argued that the Registrar was disqualified to act as he had
already unequivocally expressed his opinion against the managing committee; the Supreme Court rejected the contention and
held that no inference of bias against the Registrar as such could be drawn from his removing the managing committee as the
two proceedings had nothing in common; the fact that the Registrar removed the committee was no reason to hold that he
would be biased in investigating the individual responsibility of various members of the managing committee; the fact that the
Department of Co-operative Societies exercised a general control over all co-operative societies and that the Registrar was the
head of the department did not also disqualify him); Jose Kuttiyani v The Registrar of Coop Societies AIR 1982 Ker 12 [LNIND
1981 KER 160] [LNIND 1981 KER 160] [LNIND 1981 KER 160], Jose Kuttiyani v The Registrar of Coop Societies (1982) 18
Coop LJ 9 (from the haste shown by the Registrar in superseding a cooperative bank and other circumstances, the court
concluded that he had prejudged the issue and was guilty of bias); Sri Shiva Shankthi Constructions Pvt Ltd v
Engineer-in-Chief, (Admn Wing) Irrigation & CAD Deptt, Hyderabad AIR 1999 AP 270 [LNIND 1999 AP 257] [LNIND 1999 AP
257] [LNIND 1999 AP 257], Sri Shiva Shankthi Constructions Pvt Ltd v Engineer-in-Chief, (Admn Wing) Irrigation & CAD Deptt,
Hyderabad (1999) 3 Andh LT 304, Sri Shiva Shankthi Constructions Pvt Ltd v Engineer-in-Chief, (Admn Wing) Irrigation & CAD
Deptt, Hyderabad (1999) 3 Andh LD 280 (the registration of the petitioner firm was cancelled and it was blacklisted; the record
made it clear that the respondent authority had already decided to blacklist the firm with a view to teach it a lesson because it
had complained against the Chief Engineer to the Government; the court quashed the order because the whole issue had been
prejudged and the issue of a show cause notice was merely a formality).
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Group decision
[005.083] Group decision Where a decision is taken by a group of persons, such as a board or a
committee, bias on the part of one member of the group vitiates the validity of the group decision. It does not
matter that the biased member did not actively participate in the discussion or he remained silent and did not
seek to influence the decision of other members in the group. In such a cases, the question is not whether
there was actual bias or not but whether there was a reasonable likelihood of bias as each member
influences the other members of the group in a subtle manner1.
Rattan Lal Sharma v Managing Committee, Hari Ram (Co-education) Higher Secondary School (1993) 3 SCJ 148 (the school
management appointed a committee to inquire into certain allegations against the Principal; during the course of the inquiry,
one of the committee members testified before the committee against the Principal; thereafter, the committee recommended
dismissal of the Principal and the school management acted accordingly; the court quashed the dismissal order on the ground
of bias; the court said that the bias had percolated throughout the committee and thus, the committee's findings were vitiated);
Ashok Kumar Yadav v State of Haryana AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197],
Ashok Kumar Yadav v State of Haryana (1985) 4 SCC 417 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC 197],
Ashok Kumar Yadav v State of Haryana (1986) Lab IC 1417; J Mohapatra & aCO v State of Orissa AIR 1984 SC 1572 [LNIND
1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J Mohapatra & aCO v State of Orissa (1984) 4 SCC 103 [LNIND
1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]; G Sarana v University of Lucknow AIR 1976 SC 2428 [LNIND
1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239], G Sarana v University of Lucknow (1976) 3 SCC 585 [LNIND 1976
SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239], G Sarana v University of Lucknow (1976) 2 SCWR 213 [LNIND 1976 SC
239] [LNIND 1976 SC 239] [LNIND 1976 SC 239] (in deciding the question of bias, human probabilities and ordinary course of
human conduct have to be taken into consideration; in a group deliberation and decision like that of a Selection Board, the
members do not function as computers; each member of the group or board is bound to influence the others, more so if the
member concerned is a person, with special knowledge, his bias is likely to operate in a subtle manner); AK Kraipak v Union of
India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], AK Kraipak v Union of India [1970]
1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], AK Kraipak v Union of India (1970) 1 SCJ 381
(it was the decision of a selection committee which was quashed because of the personal bias of one of its members; other
members of the selection committee were independent persons and they even filed affidavits saying that they were in no way
biased by the presence of the person in question; however, the Supreme Court quashed the selections on the ground that the
bias of one member of the group would affect the whole group); Kirti Deshmankar v Union of India AIR 1990 MP 3351; Kirti
Deshmankar v Union of India (1971) 1 SCC 104; DK Khanna v Union of India AIR 1973 HP 30 [LNIND 1972 HP 41] [LNIND
1972 HP 41] [LNIND 1972 HP 41], DK Khanna v Union of India (1973) Lab IC 582, DK Khanna v Union of India (1973) 1 Serv
LR 80 (the son-in-law of the selected candidate was a member of the selection committee; even though the committee was
presided over by an independent person, still the court quashed the selections made and asserted that the nearness of the
relationship could reasonably give the impression to the other candidates that there was a real likelihood of the member
espousing the case of his father-in-law; the fact that the member concerned remained silent in the committee meeting or that he
did not influence the members of the committee or that the committee was aware of the member's relationship with the
candidate, were of no consequence; the law must be concerned with determining whether there was a reasonable likelihood of
bias); K Chelliah v Chairman, Industrial Finance Corporation of India AIR 1973 Mad 122 [LNIND 1971 MAD 281] [LNIND 1971
MAD 281] [LNIND 1971 MAD 281], K Chelliah v Chairman, Industrial Finance Corporation of India (1972) 1 LLJ 510 [LNIND
1971 MAD 281] [LNIND 1971 MAD 281] [LNIND 1971 MAD 281].

Initial recommendation
[005.084] Initial recommendation A report or determination lacking final effect may still have a prejudicial
effect on the legally protected interests of individuals and thus, the person making the report or preliminary
decision must not be affected by interest or likelihood of bias1. While the initial recommendation may not be
the final word in itself, nevertheless, it plays a significant part in the making of the final decision and thus, is
an important link in the process of decision making2.
143 143
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1 G Sarana v University of Lucknow AIR 1976 SC 2428 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239], G
Sarana v University of Lucknow (1976) 3 SCC 585 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239], G
Sarana v University of Lucknow (1976) 2 SCWR 213 [LNIND 1976 SC 239] [LNIND 1976 SC 239] [LNIND 1976 SC 239].
2 J Mohapatra & Co v State of Orissa AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J
Mohapatra & Co v State of Orissa (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]; A K
Kripak v Union of India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], A K Kripak v
Union of India [1970] 1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], A K Kripak v Union of
India (1970) 1 SCJ 381; Manak Lal v Prem Chand Singhvi AIR 1957 SC 425 [LNIND 1957 SC 154] [LNIND 1957 SC 154]
[LNIND 1957 SC 154], Manak Lal v Prem Chand Singhvi [1957] SCR 575 [LNIND 1957 SC 154] [LNIND 1957 SC 154] [LNIND
1957 SC 154], Manak Lal v Prem Chand Singhvi (1957) SCJ 359 (in a quasi-judicial proceeding, justice must not only be done
but must appear to be done to the litigant public; therefore, when a lawyer was charged for professional misconduct before the
bar council tribunal, the inquiry tribunal must leave no room for a reasonable apprehension in the lawyer's mind that the tribunal
might have been influenced by bias in the mind of a tribunal member; the court rejected the argument that since the decision of
the tribunal was not final and had to be submitted to the high court, the rule against bias was not applicable to the tribunal).

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(5) LIS INTER PARTES/[005.085] Lis
inter partes
[005.085] Lis inter partes A function is usually characterised as quasi-judicial1 when there is lis inter partes,
and an administrative authority is required to adjudicate2 upon the lis, that is, a situation involving two or
more parties putting forth claims inconsistent with each other, and an adjudicatory authority deciding the
matter. Prima facie, in such a case, the authority will be regarded as acting in a quasi-judicial manner3.
2 As to administrative adjudiction see [005.143] and following.
3 Amaravathi Service Co-operative Society v Union of India AIR 1970 Mys 243, Amaravathi Service Co-operative Society v
Union of India (1970) 1 Mys LJ 465; Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala AIR 1961 SC 1669 [LNIND 1961
SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206], Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala [1962] 2 SCR
339 [LNIND 1961 SC 206] [LNIND 1961 SC 206] [LNIND 1961 SC 206]. See also Associated Cement Companies Ltd v P N
Sharma AIR 1965 SC 1595 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964 SC 346], Associated Cement Companies
Ltd v P N Sharma [1965] 2 SCR 366 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964 SC 346], Associated Cement
Companies Ltd v P N Sharma (1965) 1 LLJ 433 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964 SC 346].

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(6) AUTHORITY VERSUS
INDIVIDUAL/[005.086] Authority versus individual
[005.086] Authority versus individual A much more difficult question arises when an authority is deciding a
matter not between two or more contestants, as stated above, but between itself and another party.
In many such situations, the courts1 have conceded the right of hearing2 to the affected person. When the
decision of the authority affects the individual adversely, the courts generally lean towards holding in favour
of giving a hearing to the affected person.
As said above, the present-day judicial trend is increasingly in favour of giving an opportunity of hearing to
the person concerned irrespective of the function being characterised as quasi-judicial or administrative3.
1 As to courts in general see [100]COURTS.

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ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(7) INSTANCES OF APPLICATION OF
NATURAL JUSTICE/A. GENERAL INSTANCES/(i) Regulation of Trade and Commerce/[005.087] In general
[005.087] In general Where restrictions are imposed on the right of a person to carry on trade and
commerce, it may be necessary for the administration to give a hearing1 to the affected person2.
2 See Liberty Oil Mills v Union of India AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381],
Liberty Oil Mills v Union of India (1984) 3 SCC 465 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381], Liberty
Oil Mills v Union of India [1984] 3 SCR 676 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381]. See also
Keshav Mills Co Ltd v Union of India AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570],
Keshav Mills Co Ltd v Union of India (1973) 1 SCC 380 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570],
Keshav Mills Co Ltd v Union of India [1973] 3 SCR 22 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570];
Swadeshi Cotton Mills v Union of India AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]at
832, Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28],
Swadeshi Cotton Mills v Union of India [1981] 2 SCR 533 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28].

NATURAL JUSTICE/A. GENERAL INSTANCES/(i) Regulation of Trade and Commerce/[005.088] Licensing
[005.088] Licensing Licensing is a commonly used administrative technique to regulate any activity.
Generally, cancellation of a trading or a business licence is regarded as a quasi-judicial function1 because it
entails civil as well as pecuniary consequences for the licensee as he cannot carry on his business without a
licence. Therefore, it is incumbent upon the concerned authority to follow the principles of natural justice2
and grant a hearing3 to the licensee before cancelling a licence4. However, refusal to grant a licence, or
suspension of a licence prior to its cancellation is an administrative, and not a quasi-judicial function5.
2 As to the principles of natural justice see [005.054] and following. As to instances of non-application of principles of natural
justice see [005.109] and following.
In cancelling inter alia the following types of licences, natural justice was provided to the licensee:
(1) licence to carry on trade in drugs: North Bihar Agency v State of Bihar AIR 1981 SC 1758, North Bihar
Agency v State of Bihar (1981) 3 SCC 131, North Bihar Agency v State of Bihar (1981) SCC (Cr) 651;
(2) licence to sell liquor: State of Punjab v Ajudhia Nath AIR 1981 SC 1374 [LNIND 1981 SC 279] [LNIND 1981
SC 279] [LNIND 1981 SC 279], State of Punjab v Ajudhia Nath (1981) 3 SCC 251 [LNIND 1981 SC 279]
[LNIND 1981 SC 279] [LNIND 1981 SC 279], State of Punjab v Ajudhia Nath [1981] 3 SCR 686 [LNIND 1981
SC 279] [LNIND 1981 SC 279] [LNIND 1981 SC 279];
(3) licence to trade in foodgrains: see Mahabir Prasad Santosh Kumar v State of Uttar Pradesh AIR 1970 SC
1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188], Mahabir Prasad Santosh Kumar v
State of Uttar Pradesh (1970) 1 SCC 764 [LNIND 1970 SC 188] [LNIND 1970 SC 188] [LNIND 1970 SC 188],
Mahabir Prasad Santosh Kumar v State of Uttar Pradesh [1971] 1 SCR 201 [LNIND 1970 SC 188] [LNIND
1970 SC 188] [LNIND 1970 SC 188]; Chitranjan Manilal Shah v Mane Patil, Collector of Ahmedabad AIR 1970
145 145
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Guj 67, Chitranjan Manilal Shah v Mane Patil, Collector of Ahmedabad (1970) 11 Guj LR 273;
(4) licence for conducting games of skill and dances: City Corner v Personal Asst to Collector and Additional
District Magistrate, Nellore AIR 1976 SC 143 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC
369], City Corner v Personal Asst to Collector and Additional District Magistrate, Nellore (1976) 1 SCC 124
[LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC 369], City Corner v Personal Asst to Collector
and Additional District Magistrate, Nellore [1976] 2 SCR 38 [LNIND 1975 SC 369] [LNIND 1975 SC 369]
[LNIND 1975 SC 369];
(5) licence to carry on cloth business: Kashiram Dalmia v State of Bihar AIR 1978 Pat 264;
(6) arms licence: see Digambar Panda v Additional District Magistrate, Dhenkanal AIR 1970 Ori 110 [LNIND
1969 ORI 114] [LNIND 1969 ORI 114] [LNIND 1969 ORI 114], Digambar Panda v Additional District
Magistrate, Dhenkanal (1970) ILR Cut 758; Kukkila Narayana Naik v Additonal District Magistrate, Cannanore
AIR 1971 Ker 162 [LNIND 1970 KER 172] [LNIND 1970 KER 172] [LNIND 1970 KER 172], Kukkila Narayana
Naik v Additonal District Magistrate, Cannanore (1971) Ker LT 130, Kukkila Narayana Naik v Additonal District
Magistrate, Cannanore (1971) Mad LJ (Cr) 207; Kailash Nath v State of Uttar Pradesh AIR 1985 All 291
[LNIND 1985 SC 357] [LNIND 1985 SC 357] [LNIND 1985 SC 357], Kailash Nath v State of Uttar Pradesh
(1985) 11 All LR 451, Kailash Nath v State of Uttar Pradesh (1985) All WC 493;
(7) import licence: Sinha Govindji v Deputy Chief Controller of Imports and Exports [1962] 1 SCR 540 [LNIND
1961 SC 542] [LNIND 1961 SC 542] [LNIND 1961 SC 542], Sinha Govindji v Deputy Chief Controller of
Imports and Exports (1962) I SCJ 93;
(8) fishery licence: Ikop Laidakol Fishing Co-operative Society Ltd v State of Manipur AIR 1982 Gau 14.
Chingleput Bottlers v Majestic Bottling Co AIR 1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79],
Chingleput Bottlers v Majestic Bottling Co (1984) 3 SCC 258 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79],
Chingleput Bottlers v Majestic Bottling Co [1984] 3 SCR 190 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79] (no
one has a right to get a liquor licence, but it is a matter of privilege, and the order refusing a licence is purely an administrative
or executive order and is not open to appeal or revision); Mohd Ibrahim v State Transport Appellate Tribunal, Madras AIR 1970
SC 1542 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251], Mohd Ibrahim v State Transport Appellate
Tribunal, Madras (1970) 2 SCC 233 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251], Mohd Ibrahim v State
Transport Appellate Tribunal, Madras [1971] 1 SCR 474 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251].
See Sukhwinder Pal Bipan Kumar v State of Punjab AIR 1982 SC 65 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND
1981 SC 450], Sukhwinder Pal Bipan Kumar v State of Punjab (1982) 1 SCC 31 [LNIND 1981 SC 450] [LNIND 1981 SC 450]
[LNIND 1981 SC 450], Sukhwinder Pal Bipan Kumar v State of Punjab [1982] 2 SCR 31 [LNIND 1981 SC 450] [LNIND 1981 SC
450] [LNIND 1981 SC 450] at 69.
See contra R v Liverpool Corpn, exp Liverpool Taxi Fleet Operators' Association [1972] 2 QB 299, R v Liverpool Corpn, exp
Liverpool Taxi Fleet Operators' Association [1972] 2 WLR 1262, R v Liverpool Corpn, exp Liverpool Taxi Fleet Operators'
Association 71 LGR 387 sub nom Liverpool Taxi Owners' Association In Re [1972] 2 All ER 589 CA, (though determining the
number of taxicab licences to be issued was a policy decision, yet the authority should have acted fairly after due regard to
conflicting interests, that is, it should have given an opportunity of being heard to the cab owner's association and others. And,
the same consideration would apply if the decision was to reduce the number of cabs). See Krishnagopal Dutta v Regional
Transport Authority, Burdwan AIR 1970 Cal 104 [LNIND 1969 CAL 116] [LNIND 1969 CAL 116] [LNIND 1969 CAL 116],
Krishnagopal Dutta v Regional Transport Authority, Burdwan (1969) 73 Cal WN 714 (the regional transport authority was
obligated to take into consideration, any representations made by persons already providing passenger facilities on the
proposed route, as they would be adversely affected by grant of a permit even though temporary in nature).
However, this view has undergone some change as, under the Motor Vehicles Act 1988, the regional transport authority is not
bound to give any hearing to the existing operators while considering new applications for grant of stage carriage permits as
promotion of competition is in the interest of the society ( Secretary, Regional Transport Authority, Guntur v E Rama Rao AIR
1991 AP 11 [LNIND 1990 AP 199] [LNIND 1990 AP 199] [LNIND 1990 AP 199], Secretary, Regional Transport Authority,
Guntur v E Rama Rao (1990) 3 Andh LT 272 [LNIND 1990 AP 199] [LNIND 1990 AP 199] [LNIND 1990 AP 199], Secretary,
Regional Transport Authority, Guntur v E Rama Rao (1990) 2 Andh WR 383).

NATURAL JUSTICE/A. GENERAL INSTANCES/(i) Regulation of Trade and Commerce/[005.089] Taking
over of management of an undertaking
[005.089] Taking over of management of an undertaking The government may takeover the management
of an industrial undertaking if, after an investigation1, the government is of the opinion that the undertaking is
146 146
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being managed in a manner highly detrimental to public interest2. However, the government will observe the
principles of natural justice3 before passing an order of takeover4.
The government may takeover an undertaking under certain circumstances, without any investigation, if
immediate preventive action was necessary5. Notwithstanding the aforementioned provision, the government
will not takeover the management of an undertaking without observing the principles of natural justice6.
1 Ie under the Industries (Development and Regulation) Act 1951 s 15: see generally [165]INDUSTRIAL LAW.
2 See the Industries (Development and Regulation) Act 1951 s 18A (b): see further [165]INDUSTRIAL LAW.
4 Keshav Mills Co Ltd v Union of India AIR 1973 SC 389 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570],
Keshav Mills Co Ltd v Union of India (1973) 1 SCC 380 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570],
Keshav Mills Co Ltd v Union of India [1973] 3 SCR 22 [LNIND 1972 SC 570] [LNIND 1972 SC 570] [LNIND 1972 SC 570].
5 See the Industries (Development and Regulation) Act 1951 s 18AA: see further [165]INDUSTRIAL LAW.
6 Swadeshi Cotton Mills v Union of India AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28],
Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28],
Swadeshi Cotton Mills v Union of India [1981] 2 SCR 533 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28] (the
Industries (Development and Regulation) Act 1951 s 18AA contemplates doing away with the investigation but not natural
justice).

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.090] Inquiries
[005.090] Inquiries A number of statutes1 prescribe inquiry procedure to be followed by the administration
as a prelude to taking some action or reaching some decision.
Even when a body does not have power to finally dispose of a matter, and it may only be acting as a
recommendatory body on whose report some other authority has to take a decision, it may still be regarded
as being under a duty to act in a quasi-judicial manner2.
An inquiry commission appointed under the Commissions of Inquiry Act 1952, also acts according to natural
justice even though the report of such a commission has no sanction behind it and there are no opposing
parties before the commission. Any person in whose conduct an inquiry is being held has a right of being
heard at the inquiry and to produce evidence in his defence2.
1 As to statutes in general see [275]STATUTES.
Pergamon Press Ltd In Re [1971] Ch 388, Pergamon Press Ltd In Re [1970] 3 All ER 535 CA, (though the inspectors decided
or determined nothing but only investigated and reported, yet in view of the wide and important adverse repercussions which
their report may have on individuals, the inspectors must act fairly. Here fairness required that the directors must be given an
opportunity of being heard).
A few cases to substantiate the abovementioned proposition are enunciated below.
(1) Where the Chancellor of a University was to pass an order upon the recommendation of the University
Service Commission, it was imperative for the Commission to give a hearing to the teacher concerned before
making its report to the Chancellor ( Jagdish Pandey v Chancellor, University of Bihar AIR 1968 SC 353
[LNIND 1967 SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233], Jagdish Pandey v Chancellor, University
of Bihar [1968] 1 SCR 231 [LNIND 1967 SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233]).
147 147
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(2) The officer hearing objections will act according to natural justice ( Gullapalli Nageswara Rao v Andhra
Pradesh State Road Transport Corpn AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND 1958 SC 139] [LNIND
1958 SC 139], Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn [1959] Supp 1 SCR
319, Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn (1959) SCJ 967).
(3) A commission of inquiry 'has no power of adjudication in the sense of passing an order which can be enforced
proprio vigore'. Nevertheless, the commission has to observe natural justice in its procedure ( Ram Krishna
Dalmia v Justice SR Tendolkar AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC
31], Ram Krishna Dalmia v Justice SR Tendolkar (1959) SCJ 147)
(4) A commission of inquiry is not a court; it is a 'fact finding body' and has no 'adjudicatory functions' but 'the
procedure adopted by it is of a legal character' ( Baliram Waman Hiray v Justice B Lentin AIR 1988 SC 2267
[LNIND 1988 SC 442] [LNIND 1988 SC 442] [LNIND 1988 SC 442], Baliram Waman Hiray v Justice B Lentin
(1988) 4 SCC 419 [LNIND 1988 SC 442] [LNIND 1988 SC 442] [LNIND 1988 SC 442], Baliram Waman Hiray v
Justice B Lentin [1988] Supp 2 SCR 942; see Kiran Bedi v Committee of Inquiry AIR 1989 SC 714 [LNIND
1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833], Kiran Bedi v Committee of Inquiry (1989) 1 SCC
494 [LNIND 1989 SC 10] [LNIND 1989 SC 10] [LNIND 1989 SC 10], Kiran Bedi v Committee of Inquiry [1989]
1 SCR 20 [LNIND 1989 SC 833] [LNIND 1989 SC 833] [LNIND 1989 SC 833]).
(5) A hearing may not be claimed by the concerned person when the investigation officer is collecting evidence to
ascertain whether a prima facie case is made out against him or not. However, a full inquiry is to take place
when the concerned person would have an opportunity of being heard ( Union of India v W N Chadha AIR
1993 SC 1082, Union of India v W N Chadha (1993) Supp 4 SCC 26, Union of India v W N Chadha (1992)
Supp JT 255).
However, there are instances, where even a statutory inquiry may be held to be merely administrative, and not quasi-judicial, in nature.
(a) The Madhya Pradesh Cinemas (Regulation) Act 1952 and the rules made thereunder, provide that before
granting a cinema licence, the licensing authority is to invite objections from the public. However, the court was
categorical that it was not necessary to give a personal hearing to each objector and the hearing was not to be
of the quasijudicial type ( Mohd Ibrahim Khan v State of Madhya Pradesh AIR 1980 SC 517 [LNIND 1979 SC
384] [LNIND 1979 SC 384] [LNIND 1979 SC 384], Mohd Ibrahim Khan v State of Madhya Pradesh (1979) 4
SCC 458 [LNIND 1979 SC 384] [LNIND 1979 SC 384] [LNIND 1979 SC 384], Mohd Ibrahim Khan v State of
Madhya Pradesh [1980] 1 SCR 792 [LNIND 1979 SC 384] [LNIND 1979 SC 384] [LNIND 1979 SC 384]).
(b) The Drugs (Price Control) Order 1979 provides for the government to make such inquiry as 'it thinks fit' before
issuing a price-fixing order for drugs. Notwithstanding the price fixing order being legislative in nature, the
inquiry before fixing prices is only of an administrative nature, and the drug manufacturers may not claim any
hearing at such an inquiry ( Union of India v Cynamide India Ltd AIR 1987 SC 1802 [LNIND 1987 SC 990]
[LNIND 1987 SC 990] [LNIND 1987 SC 990], Union of India v Cynamide India Ltd (1987) 2 SCC 720 [LNIND
1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990], Union of India v Cynamide India Ltd [1987] 2 SCR
841 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990]). As to the meaning of 'quasi-judicial'
see [005.053].

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.091] Powers of search
and seizure
[005.091] Powers of search and seizure The powers of search and seizure are overriding powers of the
state for the protection of social security1 the exercise of which is of a drastic nature and constitutes a
serious invasion of the privacy, property rights, reputation, business and freedom of the affected person.
Although the power to search may be exercised without invoking natural justice2, the power of seizure
cannot be exercised without affording natural justice to the affected person. Similarly, power of confiscation
cannot be exercised unless the affected person is given an opportunity of being heard3 against the proposed
confiscation4.
1 MP Sharma v Satish Chandra, District Magistrate Delhi AIR 1954 SC 300 [LNIND 1954 SC 40] [LNIND 1954 SC 40] [LNIND
1954 SC 40], MP Sharma v Satish Chandra, District Magistrate Delhi [1954] SCR 1077 [LNIND 1954 SC 40] [LNIND 1954 SC
40] [LNIND 1954 SC 40], MP Sharma v Satish Chandra, District Magistrate Delhi (1954) SCJ 428 [LNIND 1954 SC 40] [LNIND
1954 SC 40] [LNIND 1954 SC 40].
2 As to natural justice see [005.051] and following.

148 148
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4 Assistant Collector of Customs and Superintendent, Preventive Service Customs, Calcutta v Charan Das Malhotra AIR 1972
SC 689 [LNIND 1971 SC 135] [LNIND 1971 SC 135] [LNIND 1971 SC 135], Assistant Collector of Customs and
Superintendent, Preventive Service Customs, Calcutta v Charan Das Malhotra [1971] 3 SCR 802(the customs authorities may
search and seize imported goods under the Customs Act 1962 s 110, if they have 'reason to believe' that the goods were
illegally imported. However, under the section, if no notice proposing confiscation of the goods is served on the owner within six
months, then the goods are to be returned to the owner, provided that the period of six months, 'on sufficient cause' being
shown, may be extended by the collector of customs for a further period not exceeding six months. The power of extension of
time limit is quasi-judicial in nature).

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.092] Discretionary powers
[005.092] Discretionary powers Discretionary powers1 are subject to some control and, a hearing2 before
the decision-maker may act as a control mechanism on his decision-making powers3.
To discharge a discretionary function, a fact may have to be determined objectively. If so, hearing has to be
given to the concerned party to determine that fact, and the function, to that extent, will be regarded as
quasi-judicial4.
A part of the same administrative proceedings5, taken as a whole, may be regarded as administrative and a
part thereof as quasi-judicial. In a discretionary action, there may be some dominant element, such as, a
major administrative policy or economic or other threat to the community, which may negate the idea of a fair
hearing6.
1 As to discretionary powers see [005.182] and following.
3 See Assistant Collector of Customs and Superintendent, Preventive Service Customs, Calcutta v Charan Das Malhotra AIR
1972 SC 689 [LNIND 1971 SC 135] [LNIND 1971 SC 135] [LNIND 1971 SC 135], Assistant Collector of Customs and
Superintendent, Preventive Service Customs, Calcutta v Charan Das Malhotra [1971] 3 SCR 802; State of Gujarat v Krishna
Cinema AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358], State of Gujarat v Krishna
Cinema (1970) 2 SCC 744 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358], State of Gujarat v Krishna
Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358] (the power to grant a licence
under the Bombay Cinemas (Regulation) Act 1953 is quasi-judicial and, by using the expression 'absolute discretion', the
licensing authority is not invested with arbitrary power so as to destroy the limitations to which it is subject by its inherent
nature); Rampur Distillery and Chemical Co Ltd v Company Law Board, New Delhi AIR 1970 SC 1789 [LNIND 1969 SC 307]
[LNIND 1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law Board, New Delhi [1970]
2 SCR 177 [LNIND 1969 SC 307] [LNIND 1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v
Company Law Board, New Delhi (1970) 2 SCJ 789 (investment of power carries with it a duty to act judicially); Delhi Transport
Corpn v Delhi Transport Corpn Mazdoor Congress AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990
SC 824], Delhi Transport Corpn v Delhi Transport Corpn Mazdoor Congress (1991) Supp 1 SCC 600, Delhi Transport Corpn v
Delhi Transport Corpn Mazdoor Congress [1990] Supp 1 SCR 142 (as the regulation in question did not expressly exclude the
application of natural justice, the service of a permanent employee could not be terminated without giving a hearing to him so as
to enable him to controvert the allegations against him).
Daud Ahmad v District Magistrate, Allahabad AIR 1972 SC 896 [LNIND 1972 SC 91] [LNIND 1972 SC 91] [LNIND 1972 SC
91], Daud Ahmad v District Magistrate, Allahabad (1972) 1 SCC 655 [LNIND 1972 SC 91] [LNIND 1972 SC 91] [LNIND 1972
SC 91], Daud Ahmad v District Magistrate, Allahabad [1972] 3 SCR 405 [LNIND 1972 SC 91] [LNIND 1972 SC 91] [LNIND
1972 SC 91] (the question of existence of a suitable alternative accommodation or providing for alternative accommodation, to
any person in actual possession of the requisitioned accomodation, has to be determined after hearing); Madan Gopal Agarwal
v District Magistrate, Allahabad AIR 1972 SC 2656 [LNIND 1972 SC 488] [LNIND 1972 SC 488] [LNIND 1972 SC 488], Madan
Gopal Agarwal v District Magistrate, Allahabad (973) 1 SCC 89, Madan Gopal Agarwal v District Magistrate, Allahabad [1973] 2
SCR 610 [LNIND 1972 SC 488] [LNIND 1972 SC 488] [LNIND 1972 SC 488] (even on the issue of suitability of an
accommodation for a public purpose, it will be necessary to give a hearing to the owner by the district magistrate).
149 149
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See contra Province of Bombay v Khushaldas S Advani (decd) by LRS Govindram Khushaldas and Ramchand Khushaldas
AIR 1950 SC 222 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32], Province of Bombay v Khushaldas S Advani
(decd) by LRS Govindram Khushaldas and Ramchand Khushaldas [1950] SCR 621 [LNIND 1950 SC 32] [LNIND 1950 SC 32]
[LNIND 1950 SC 32], Province of Bombay v Khushaldas S Advani (decd) by LRS Govindram Khushaldas and Ramchand
Khushaldas (1950) SCJ 451 [LNIND 1950 SC 32] [LNIND 1950 SC 32] [LNIND 1950 SC 32] (determination of existence of a
public pupose and necessity or expediency for requisitioning any land for the same was a purely administrative act as the
decision was based on the government's subjective satisfaction and therefore, no hearing need be given to the affected party).
As to the meaning of 'quasi-judicial' see [005.053].
5 As to the proceedings see generally [005.119] and following.
6 Sadhu Singh v Delhi Administration AIR 1966 SC 91 [LNIND 1965 SC 174] [LNIND 1965 SC 174] [LNIND 1965 SC 174],
Sadhu Singh v Delhi Administration [1966] 1 SCR 243 [LNIND 1965 SC 174] [LNIND 1965 SC 174] [LNIND 1965 SC 174]
(since the Defence of India Act was an emergency measure, it was a matter of subjective satisfaction for the government to
make an order of detention and the authority was not required to act judicially) distinguished PL Lakhanpal v Union of India AIR
1967 SC 1506, PL Lakhanpal v Union of India [1967] 1 SCR 433 [LNIND 1966 SC 197] [LNIND 1966 SC 197] [LNIND 1966 SC
197] (reviewing function of the detaining authority is quasi-judicial in nature). As to the principle of audi alteram partem see
[005.054] and following.

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.093] Tax assessment
[005.093] Tax assessment Natural justice1 is applicable in the assessment of various taxes2, such as (1)
income tax3; (2) sales tax4; (3) duties of excise5; (4) property tax6; (5) customs duty7; and (6) stamp duty8.
2 As to assessment of various taxes see generally [280]TAXATION AND REVENUE.
State of Kerala v KT Shaduli Grocery Dealer AIR 1977 SC 1627 [LNIND 1977 SC 133] [LNIND 1977 SC 133] [LNIND 1977 SC
133], State of Kerala v KT Shaduli Grocery Dealer (1977) 2 SCC 777 [LNIND 1977 SC 133] [LNIND 1977 SC 133] [LNIND 1977
SC 133], State of Kerala v KT Shaduli Grocery Dealer [1977] 3 SCR 233; Dhakeswari Cotton Mills Ltd v Comr of Income-Tax,
West Bengal AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149], Dhakeswari Cotton Mills Ltd
v Comr of Income-Tax, West Bengal [1955] 1 SCR 951, Dhakeswari Cotton Mills Ltd v Comr of Income-Tax, West Bengal
(1955) SCJ 122 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]. See R B Shreeram Durga Prasad v
Settlement Commission (1989) 1 SCC 628 [LNIND 1989 SC 710] [LNIND 1989 SC 710] [LNIND 1989 SC 710].
Dwarka Nath v Income-Tax Officer, Special Circle, D Ward Kanpur AIR 1966 SC 81 [LNIND 1965 SC 107] [LNIND 1965 SC
107] [LNIND 1965 SC 107]at 86, Dwarka Nath v Income-Tax Officer, Special Circle, D Ward Kanpur [1965] 3 SCR 536 [LNIND
1965 SC 107] [LNIND 1965 SC 107] [LNIND 1965 SC 107], Dwarka Nath v Income-Tax Officer, Special Circle, D Ward Kanpur
(1966) 1 SCJ 119 (revisional order passed by commissioner of income tax is judicial, not administrative).
4 Mahadayal Premchandra v Commercial Tax Officer, Calcutta AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53]
[LNIND 1958 SC 53], Mahadayal Premchandra v Commercial Tax Officer, Calcutta [1959] SCR 551, Mahadayal Premchandra v
Commercial Tax Officer, Calcutta (1958) SCJ 728. See Kantilal Babulal & Bros v HC Patel AIR 1968 SC 448, Kantilal Babulal
& Bros v HC Patel [1968] 1 SCR 735 [LNIND 1967 SC 288] [LNIND 1967 SC 288] [LNIND 1967 SC 288] (imposition of a
penalty under a sales tax statute is quasi-judicial in nature).
5 Orient Paper Mills Ltd v Deputy Collector, Central Excise AIR 1971 Ori 25; Prakash Cotton Mills Pvt Ltd v B N Rangwani AIR
1971 Bom 386 [LNIND 1970 BOM 61] [LNIND 1970 BOM 61] [LNIND 1970 BOM 61], Prakash Cotton Mills Pvt Ltd v B N
Rangwani 73 Bom LR 225, Prakash Cotton Mills Pvt Ltd v B N Rangwani (1971) Mah LJ 566 [LNIND 1970 BOM 61] [LNIND
1970 BOM 61] [LNIND 1970 BOM 61].
6 Kunnthat Thathunni Moopil Nair v State of Kerala AIR 1961 SC 552 [LNIND 1960 SC 331] [LNIND 1960 SC 331] [LNIND
1960 SC 331], Kunnthat Thathunni Moopil Nair v State of Kerala [1961] 3 SCR 77 [LNIND 1960 SC 331] [LNIND 1960 SC 331]
[LNIND 1960 SC 331], Kunnthat Thathunni Moopil Nair v State of Kerala (1961) 2 SCJ 269.
7 Siemens Engineering and Manufacturing Co of India v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976
SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India v Union of India (1976) 2 SCC 981 [LNIND
150 150
Page
1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India v Union of
India [1976] Supp SCR 489 (imposition of penalty by the various customs authorities for breaches of the Customs Act requires
a quasi-judicial approach); Indo-China Steam Navigation Co Ltd v Jasjit Singh, Additional Collector of Customs, Calcutta AIR
1964 SC 1140 [LNIND 1964 SC 25] [LNIND 1964 SC 25] [LNIND 1964 SC 25], Indo-China Steam Navigation Co Ltd v Jasjit
Singh, Additional Collector of Customs, Calcutta [1964] 6 SCR 594 [LNIND 1964 SC 25] [LNIND 1964 SC 25] [LNIND 1964 SC
25], Indo-China Steam Navigation Co Ltd v Jasjit Singh, Additional Collector of Customs, Calcutta (1964) 2 Cr LJ 234.
8 Board of Revenue, Uttar Pradesh Allahabad v Sardarni Vidyawati AIR 1962 SC 1217 [LNIND 1962 SC 497] [LNIND 1962 SC
497] [LNIND 1962 SC 497], Board of Revenue, Uttar Pradesh Allahabad v Sardarni Vidyawati [1962] Supp 3 SCR 50 (the
function is quasi-judicial when the board of revenue decides, on a reference from the collector, the amount of stamp duty to be
levied on an instrument).

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.094] Supercession of
statutory bodies
[005.094] Supercession of statutory bodies Natural justice1 must be observed when the government
suspends statutory bodies, such as, a panchayat2, or a state agricultural marketing board3, or when it
appoints an administrator for a registered society in public interest4.
However, where the state government, by a notification under the statute, constitutes a municipal corporation
for an area which results in the dissolution of an existing municipality in that area, the function will not be
regarded as quasi-judicial5.
2 TVRV Radhakrishnan Chettiar v State of Tamil Nadu AIR 1974 SC 1862, TVRV Radhakrishnan Chettiar v State of Tamil
Nadu (1974) 2 SCC 496.
3 Ie under the Punjab Agricultural Produce Markets Act 1961 s 35. See Peoples Education Society, Belgaum v State of
Karnataka AIR 1980 Kant 151 [LNIND 1979 KANT 133] [LNIND 1979 KANT 133] [LNIND 1979 KANT 133], Peoples Education
Society, Belgaum v State of Karnataka (1979) 2 Kant LJ 343.
4 Jathedar Jagdev Singh v State of Punjab AIR 1982 P & H 16, Jathedar Jagdev Singh v State of Punjab (1982) ILR 1 P & H
441.
5 Raghunath Pandey v State of Bihar AIR 1982 Pat 1, Raghunath Pandey v State of Bihar (1982) BLJR 88, Raghunath Pandey
v State of Bihar (1982) Pat LJR 49. As to the meaning of 'quasi-judicial' see [005.053]. See also [005.109] and following.

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.095] Supercession of
municipal corporations
[005.095] Supercession of municipal corporations The government will follow natural justice1 when it
decides to supersede a municipal corporation. Omission to mention the right of hearing in the statutory
provision, under which the impugned action is being taken, does not ipso facto exclude hearing 2.
Jagmohan [1980] 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v Jagmohan
151 151
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[1981] 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] (before passing an order of supercession
of a municipal corporation for incompetence or persistent default in performing its duties, it would be necessary to afford a
hearing to the municipality concerned, for dissolution of the committee involves several civil consequences to the committee,
eg, fall in its public esteem, loss of status and office and public rights and responsibilities attached to the committee, loss of
expectation of the committee to serve its full term). As to hearings see [005.058] and [005.059].

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.096] Cancellation of poll
[005.096] Cancellation of poll Natural justice1 will apply before an order of cancellation of polls by the
Election Commission2 is passed even if such an order be regarded as administrative and not quasi-judicial in
nature3.
1 As to instances of application of natural justice see [005.087] and following.
2 See Constitution of India art 324. As to provisions relating to adjournment of polls see ELECTIONS[125.535]- [125.540].
3 Mohinder Singh Gill v Chief Election Comr, New Delhi AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND
1977 SC 332], Mohinder Singh Gill v Chief Election Comr, New Delhi (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC
332] [LNIND 1977 SC 332], Mohinder Singh Gill v Chief Election Comr, New Delhi [1978] 2 SCR 272 [LNIND 1977 SC 332]
[LNIND 1977 SC 332] [LNIND 1977 SC 332]. As to the meaning of 'quasi-judicial' see [005.053].

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.097] Government
contracts
[005.097] Government contracts Natural justice1 is applicable in cases of action by the government under
a contract2 with a private party where the action has a statutory basis3.
2 As to government contracts see generally [005.307] and following. See also [95]CONTRACTS.
3 When a mining lease is sought to be cancelled prematurely, the lessee is entitled to be heard before such an order can be
made: Assam Sillimanite Ltd v Union of India AIR 1990 SC 1417 [LNIND 1990 SC 161] [LNIND 1990 SC 161] [LNIND 1990 SC
161], Assam Sillimanite Ltd v Union of India (1990) 3 SCC 182 [LNIND 1990 SC 161] [LNIND 1990 SC 161] [LNIND 1990 SC
161], Assam Sillimanite Ltd v Union of India [1990] 1 SCR 983 [LNIND 1990 SC 161] [LNIND 1990 SC 161] [LNIND 1990 SC
161]. See State of Haryana v Ram Kishan AIR 1988 SC 1301 [LNIND 1988 SC 297] [LNIND 1988 SC 297] [LNIND 1988 SC
297], State of Haryana v Ram Kishan (1988) 3 SCC 416 [LNIND 1988 SC 297] [LNIND 1988 SC 297] [LNIND 1988 SC 297],
State of Haryana v Ram Kishan [1988] 3 SCR 1015 [LNIND 1988 SC 297] [LNIND 1988 SC 297] [LNIND 1988 SC 297].
District Forest Officer South Kheri v Ram Sanehi Singh AIR 1973 SC 205, District Forest Officer South Kheri v Ram Sanehi
Singh (1971) 3 SCC 864 (granting that the order was administrative and not quasi-judicial, the order had still to be made in a
manner consonant with the rules of natural justice when it affected the respondent's right to property); see contra Radhakrishna
Agarwal v State of Bihar AIR 1977 SC 1496 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna
Agarwal v State of Bihar (1977) 3 SCC 457 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna
Agarwal v State of Bihar [1977] 3 SCR 249 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137] (when the
government terminates a contract under its terms, it does not exercise any statutory power and therefore, natural justice does
not apply); State of Punjab v Ajudhia Nath AIR 1981 SC 1374 [LNIND 1981 SC 279] [LNIND 1981 SC 279] [LNIND 1981 SC
279], State of Punjab v Ajudhia Nath (1981) 3 SCC 251 [LNIND 1981 SC 279] [LNIND 1981 SC 279] [LNIND 1981 SC 279],
State of Punjab v Ajudhia Nath [1981] 3 SCR 686 [LNIND 1981 SC 279] [LNIND 1981 SC 279] [LNIND 1981 SC 279] (natural
justice need not be applied when the government demands money due under a contract).
152 152
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NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.098] Blacklisting
[005.098] Blacklisting A modern administrative technique is to blacklist a person so as to disqualify him for
certain purposes. Thereafter, he cannot deal with the concerned authority in the area. Blacklisting is
characterised as an instrument of oppression which combines both constitutional and legal impropriety1.
Before a government contractor is blacklisted, he will be given a hearing against the proposed action2.
However, rejection of a tenderer by the government on the ground of relative unsuitability involves no
forfeiture of his pre-existing rights or interests nor does it defeat any of his legitimate expectations3 nor does
it inflict on him any civil consequences and therefore, negates the need for application of natural justice4.
1 Wade, 'Constitutional Fundamentals' (1980)p 55.
Erusian Equipment and Chemicals Ltd v State of West Bengal AIR 1975 SC 266 [LNIND 1974 SC 357] [LNIND 1974 SC 357]
[LNIND 1974 SC 357], Erusian Equipment and Chemicals Ltd v State of West Bengal (1975) 1 SCC 70 [LNIND 1974 SC 357]
[LNIND 1974 SC 357] [LNIND 1974 SC 357], Erusian Equipment and Chemicals Ltd v State of West Bengal [1975] 2 SCR 674
[LNIND 1974 SC 357] [LNIND 1974 SC 357] [LNIND 1974 SC 357] (principles of natural justice are to be observed when the
government blacklists a firm on the approved government list as this has the effect of debarring the firm from entering into
contracts with the government. An individual is entitled to a fair and equal treatment with others who offer tenders or quotations
for the purchase of goods); following Joseph Vilangandan v Executive Engineer (PWD) Ernakulum AIR 1978 SC 930 [LNIND
1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108], Joseph Vilangandan v Executive Engineer (PWD) Ernakulum
(1978) 3 SCC 36 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108], Joseph Vilangandan v Executive
Engineer (PWD) Ernakulum [1978] 3 SCR 514 [LNIND 1978 SC 108] [LNIND 1978 SC 108] [LNIND 1978 SC 108].
Any order having civil consequences will be passed only after following the principles of natural justice: Raghunath Thakur v
State of Bihar AIR 1989 SC 620 [LNIND 1988 SC 549] [LNIND 1988 SC 549] [LNIND 1988 SC 549], Raghunath Thakur v State
of Bihar (1989) 1 SCC 229 [LNIND 1988 SC 549] [LNIND 1988 SC 549] [LNIND 1988 SC 549], Raghunath Thakur v State of
Bihar [1988] Supp 3 SCR 867; see Southern Painters v Fertilizers and Chemicals Travancore Ltd AIR 1994 SC 1277, Southern
Painters v Fertilizers and Chemicals Travancore Ltd (1994) Supp 2 SCC 699.
3 As to legitimate expectations see [005.301]-[005.303].
4 Sri Rama Engineering Contractors v Construction Engineer, Civil Engineering, Department of Space, Government of India,
Sriharikota, Nellore AIR 1981 AP 165 [LNIND 1981 AP 64] [LNIND 1981 AP 64] [LNIND 1981 AP 64], Sri Rama Engineering
Contractors v Construction Engineer, Civil Engineering, Department of Space, Government of India, Sriharikota, Nellore (1981)
1 Andh WR 327 (blacklisting brings about disability not with reference to any particular contractual venture but generally in
relation to an occupation). As to instances of non-application of natural justice see [005.109] and following.

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.099] Right to property
[005.099] Right to property Natural justice1 must be afforded to persons whose property rights2 are
adversely affected by any proposed administrative action.
Before passing an order to demolish a house, the concerned authority must give an opportunity to the owner
and the occupant of the house to show cause against such an order3.
Similarly, before issuing a notification designating an area as a 'slum area', the concerned authority must
give a hearing4 to the affected persons as it would adversely affect their property rights.
153 153
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The power of granting exemption to an individual from the provisions of the Urban Land Ceiling and
Regulation Act 1976 will be exercised by the state government after giving him a reasonable opportunity of
being heard5.
As regards land acquisition6 by the government for a public purpose7, the collector is required to hold an
inquiry8 and hear the objectors whose land is proposed to be acquired. The collector then submits his report
to the government which takes the final decision to acquire the land9. The collector must follow the principles
of natural justice10 at the inquiry, and afford a reasonable opportunity of hearing to the persons interested in
the land which is sought to be acquired11.
The procedure for acquisition of land for a company is that before the government issues a notification
acquiring land for the company, the collector is to hold an inquiry to find out whether the company in question
has made its best efforts to find land in the locality suitable for its purpose, and to get such land by
negotiations on payment of a reasonable price, and that such efforts have failed12. The collector must follow
norms of natural justice at the inquiry held by him, and afford a reasonable opportunity of being heard to the
persons interested in the land proposed to be acquired13.
The cancellation of permission to construct a multi-storeyed building by a statutory body may be done only
after following the principles of natural justice and giving a hearing to the party concerned14.
2 As to property rights in general see [240]PROPERTY AND EASEMENTS.
3 Cantonment Board v Mohanlal AIR 1996 SC 1586 [LNIND 1996 SC 10] [LNIND 1996 SC 10] [LNIND 1996 SC 10],
Cantonment Board v Mohanlal (1996) 2 SCC 23 [LNIND 1996 SC 10] [LNIND 1996 SC 10] [LNIND 1996 SC 10]; Pratap V Soni
v Gandhidham Development Authority AIR 1985 Guj 68 [LNIND 1984 GUJ 200] [LNIND 1984 GUJ 200] [LNIND 1984 GUJ 200].
5 Government of Mysore v JV Bhat AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317],
Government of Mysore v JV Bhat (1975) 1 SCC 110 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317],
Government of Mysore v JV Bhat [1975] 2 SCR 407 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317].
6 Nandakishore v State of Madhya Pradesh AIR 1982 MP 33 [LNIND 1981 MP 68] [LNIND 1981 MP 68] [LNIND 1981 MP 68],
Nandakishore v State of Madhya Pradesh (1982) MP LJ 168 [LNIND 1981 MP 68] [LNIND 1981 MP 68] [LNIND 1981 MP 68].
7 Ie under the Land Acquisition Act 1894 s 5A: see generally[195]LAND ACQUISITION, ADMINISTRATION AND DIVISION.
8 As to inquiry see [005.090].
9 As to principles of natural justice see [005.054] and following.
10 Ie under the Land Acquisition Act 1894 s 6: see generally[195]LAND ACQUISITION, ADMINISTRATION AND DIVISION.
11
Bai Malimabu v State of Gujarat AIR 1978 SC 515, Bai Malimabu v State of Gujarat (1978) 2 SCC 373, Bai Malimabu v State
of Gujarat (1978) 1 SCJ 430. See contra Jayantilal Amratlal Shodhan v FN Rana AIR 1964 SC 648 [LNIND 1963 SC 246]
[LNIND 1963 SC 246] [LNIND 1963 SC 246], Jayantilal Amratlal Shodhan v FN Rana [1964] 5 SCR 294 [LNIND 1963 SC 246]
[LNIND 1963 SC 246] [LNIND 1963 SC 246] (proceedings before the collector are not quasi-judicial); Abdul Hussain Tayabali v
State of Gujarat AIR 1968 SC 432 [LNIND 1967 SC 275] [LNIND 1967 SC 275] [LNIND 1967 SC 275], Abdul Hussain Tayabali
v State of Gujarat [1968] 1 SCR 597 [LNIND 1967 SC 275] [LNIND 1967 SC 275] [LNIND 1967 SC 275] (the proceedings
before the collector were regarded as administrative).
However, the question was left open in Parshottam Jadavji Jani v State of Gujarat AIR 1971 SC 1188 [LNIND 1971 SC 217]
[LNIND 1971 SC 217] [LNIND 1971 SC 217], Parshottam Jadavji Jani v State of Gujarat (1971) 1 SCC 843 [LNIND 1971 SC
217] [LNIND 1971 SC 217] [LNIND 1971 SC 217], Parshottam Jadavji Jani v State of Gujarat [1971] Supp SCR 294.
12 See the Land Acquisition Act 1894.
13 State of Gujarat v Ambalal Haiderbhai AIR 1976 SC 2002 [LNIND 1976 SC 172] [LNIND 1976 SC 172] [LNIND 1976 SC
172], State of Gujarat v Ambalal Haiderbhai (1976) 3 SCC 495 [LNIND 1976 SC 172] [LNIND 1976 SC 172] [LNIND 1976 SC
172], State of Gujarat v Ambalal Haiderbhai [1976] Supp SCR 33; State of Gujarat v Patel Chaturbhai Narsinbhai AIR 1975 SC
154 154
Page
629 [LNIND 1975 SC 22] [LNIND 1975 SC 22] [LNIND 1975 SC 22], State of Gujarat v Patel Chaturbhai Narsinbhai (1975) 1
SCC 583 [LNIND 1975 SC 22] [LNIND 1975 SC 22] [LNIND 1975 SC 22], State of Gujarat v Patel Chaturbhai Narsinbhai [1975]
3 SCR 284 [LNIND 1975 SC 22] [LNIND 1975 SC 22] [LNIND 1975 SC 22] (although the collector's report is only
recommendatory in nature, it is a vital link in the whole process of land acquisition for a company).
14 State of Uttar Pradesh v Dharmander Prasad Singh AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND
1989 SC 680], State of Uttar Pradesh v Dharmander Prasad Singh (1989) 2 SCC 505 [LNIND 1989 SC 680] [LNIND 1989 SC
680] [LNIND 1989 SC 680], State of Uttar Pradesh v Dharmander Prasad Singh [1989] 1 SCR 176 [LNIND 1989 SC 680]
[LNIND 1989 SC 680] [LNIND 1989 SC 680].

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.100] Imposition of
punishment
[005.100] Imposition of punishment Natural justice1 must be afforded by the administrative authority to the
party on whom a pecuniary punishment is sought to be imposed for default in fulfilling a statutory duty2.
1 As to natural justice see [005.051] and following. See also [005.087] and following.
2 Any exercise of power prejudicially affecting another must be in conformity with the rules of natural justice: A Sridhara Reddy
v Conservator of Forests AIR 1976 SC 782 [LNIND 1975 SC 337] [LNIND 1975 SC 337] [LNIND 1975 SC 337], A Sridhara
Reddy v Conservator of Forests (1976) 1 SCC 106 [LNIND 1975 SC 337] [LNIND 1975 SC 337] [LNIND 1975 SC 337], A
Sridhara Reddy v Conservator of Forests [1976] 1 SCR 770 [LNIND 1975 SC 337] [LNIND 1975 SC 337] [LNIND 1975 SC 337];
Comr of Coal Mines Provident Fund Dhanbad v JP Lalla & Sons AIR 1976 SC 676 [LNIND 1976 SC 47] [LNIND 1976 SC 47]
[LNIND 1976 SC 47], Comr of Coal Mines Provident Fund Dhanbad v JP Lalla & Sons (1976) 1 SCC 964 [LNIND 1976 SC 47]
[LNIND 1976 SC 47] [LNIND 1976 SC 47], Comr of Coal Mines Provident Fund Dhanbad v JP Lalla & Sons [1976] 3 SCR 365
[LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47]. See Kantilal Babulal & Bros v HC Patel AIR 1968 SC 448,
Kantilal Babulal & Bros v HC Patel [1968] 1 SCR 735 [LNIND 1967 SC 288] [LNIND 1967 SC 288] [LNIND 1967 SC 288]
(imposition of penalty on a person is of quasi-judicial character).

NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.101] Withdrawal of
benefits
[005.101] Withdrawal of benefits When the government seeks to withdraw a benefit conferred by it on a
person, he is entitled to a hearing1. The government must follow natural justice2 even when an ex gratia
benefit already sanctioned is sought to be withdrawn3.
3 G Ramasubbu Pillai v Government of India AIR 1980 Mad 23 [LNIND 1979 MAD 32] [LNIND 1979 MAD 32] [LNIND 1979
MAD 32], G Ramasubbu Pillai v Government of India (1979) 1 Lab LJ 346 (order withdrawing pension granted to a freedom
fighter without giving him a hearing was quashed). See however Nakkuda Ali v MF De S Jayaratne [1951] AC 66, Nakkuda Ali
v MF De S Jayaratne 94 Sol Jo 516, Nakkuda Ali v MF De S Jayaratne 66 (pt 2) TLR 214, PC, (no hearing is required when
the government withdraws a privilege conferred by it).

155 155
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NATURAL JUSTICE/A. GENERAL INSTANCES/(ii) Miscellaneous Situations/[005.102] Administrative

appeals and revisions
[005.102] Administrative appeals and revisions Where a statute makes provision for administrative
appeals, the appellate authority may be regarded as quasi-judicial1. Similarly, if an authority is exercising
revision or review power, such function may be characterised as quasijudicial2.
1 Nagendra Nath Bora v Comr of Hills Division and Appeals, Assam AIR 1958 SC 398 [LNIND 1958 SC 6] [LNIND 1958 SC 6]
[LNIND 1958 SC 6], Nagendra Nath Bora v Comr of Hills Division and Appeals, Assam [1958] SCR 1240 [LNIND 1958 SC 6]
[LNIND 1958 SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Comr of Hills Division and Appeals, Assam (1958) SCJ 798
[LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6] (where there is a right vested in an authority created by statute to
hear appeals and revisions, it becomes its duty to hear judicially. As to the meaning of 'quasi-judicial' see [005.053].
Shivji Nathubhai v Union of India AIR 1960 SC 606 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13], Shivji
Nathubhai v Union of India [1960] 2 SCR 775 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13], Shivji Nathubhai
v Union of India (1960) SCJ 579 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13] (insofar as the state
government has to select one out of several contestants for a mining lease for a particular piece of land, there exists a 'lis'
amongst these contestants and, therefore, the state government itself will act in a quasi-judicial manner).
Dwarka Nath v Income-Tax Officer, Special Circle, D Ward Kanpur AIR 1966 SC 81 [LNIND 1965 SC 107] [LNIND 1965 SC
107] [LNIND 1965 SC 107]at 86, Dwarka Nath v Income-Tax Officer, Special Circle, D Ward Kanpur [1965] 3 SCR 536 [LNIND
1965 SC 107] [LNIND 1965 SC 107] [LNIND 1965 SC 107], Dwarka Nath v Income-Tax Officer, Special Circle, D Ward Kanpur
(1966) 1 SCJ 119 (the function of revision of an income tax assessment order by the commissioner at the application of an
assessee has been held to be quasi-judicial); Jaswant Singh Saluja v Chief Settlement Comr, New Delhi AIR 1971 SC 748 (the
power of revision cannot be exercised in respect of a finalised claim without giving a notice to the claimant that the claim is
sought to be revised).
See Madhya Pradesh Industries Ltd v Union of India AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND
1965 SC 190], Madhya Pradesh Industries Ltd v Union of India [1966] 1 SCR 466 [LNIND 1965 SC 190] [LNIND 1965 SC 190]
[LNIND 1965 SC 190]; see also Shri Bhagwan v Ram Chand AIR 1965 SC 1767 [LNIND 1965 SC 64] [LNIND 1965 SC 64]
[LNIND 1965 SC 64], Shri Bhagwan v Ram Chand [1965] 3 SCR 218 [LNIND 1965 SC 64] [LNIND 1965 SC 64] [LNIND 1965
SC 64]; D N Roy v State of Bihar AIR 1971 SC 1045 [LNIND 1970 SC 402] [LNIND 1970 SC 402] [LNIND 1970 SC 402], D N
Roy v State of Bihar (1970) 3 SCC 119 [LNIND 1970 SC 402] [LNIND 1970 SC 402] [LNIND 1970 SC 402], D N Roy v State of
Bihar [1971] 2 SCR 522 [LNIND 1970 SC 402] [LNIND 1970 SC 402] [LNIND 1970 SC 402].

NATURAL JUSTICE/B. SPECIFIC INSTANCES/(i) Disciplinary Action/[005.103] Against students
[005.103] Against students Before the concerned authority takes a disciplinary action against a student,
such as, expulsion from the institution, or cancellation of examination results, the concerned student must be
given a hearing by the authority1.
Removal of a student from an educational institution on academic grounds is distinct from expulsion on the
grounds of discipline. Natural justice is essential in the latter case but not in the former2. However, a hearing
is not necessary when duly qualified and competent academic authorities have examined and assessed the
work of a student over a period of time and declared it to be unsatisfactory3.
1 Board of High School and Intermediate Education, Uttar Pradesh v Chittra Srivastava AIR 1970 SC 1039 [LNIND 1969 SC
458] [LNIND 1969 SC 458] [LNIND 1969 SC 458], Board of High School and Intermediate Education, Uttar Pradesh v Chittra
Srivastava (1970) 1 SCC 121 [LNIND 1969 SC 458] [LNIND 1969 SC 458] [LNIND 1969 SC 458], Board of High School and
Intermediate Education, Uttar Pradesh v Chittra Srivastava [1970] 3 SCR 266 [LNIND 1969 SC 458] [LNIND 1969 SC 458]
[LNIND 1969 SC 458] (order of the board cancelling examination of the petitioner due to shortage in attendance was quashed
on the ground that a penalty could not be imposed on a person without giving him a hearing); Board of High School and
156 156
Page
Intermediate Education, Uttar Pradesh Allahabad v Ghanshyam AIR 1962 SC 1110 [LNIND 1962 SC 55] [LNIND 1962 SC 55]
[LNIND 1962 SC 55], Board of High School and Intermediate Education, Uttar Pradesh Allahabad v Ghanshyam [1962] Supp 3
SCR 36 (the function of cancelling the respondent's examination results for using unfair means during the examination was
quasi-judicial as the committee had no personal knowledge of the matter and had to depend upon the material placed before it);
Vibhu Kapoor v Council of Indian School Certificate Examination AIR 1985 Del 142 (cancellation of examination result merely
upon suspicion of copying, without any inquiry was in violation of natural justice).
See also Madan Mohan Varma v University of Calcutta AIR 1979 Cal 67 [LNIND 1978 CAL 324] [LNIND 1978 CAL 324]
[LNIND 1978 CAL 324], Madan Mohan Varma v University of Calcutta (1979) 1 Cal LJ 74; Rajkumar Agarwalla v University of
Calcutta AIR 1979 Cal 393 [LNIND 1979 CAL 57] [LNIND 1979 CAL 57] [LNIND 1979 CAL 57]; Pradip Kumar Sahoo v Utkal
University AIR 1987 Ori 98 [LNIND 1986 ORI 63] [LNIND 1986 ORI 63] [LNIND 1986 ORI 63], Pradip Kumar Sahoo v Utkal
University (1986) 2 Ori LR 670; Jayesh Bhupatrai Parikh v University of Bombay AIR 1987 Bom 332 [LNIND 1987 BOM 124]
[LNIND 1987 BOM 124] [LNIND 1987 BOM 124], Jayesh Bhupatrai Parikh v University of Bombay (1987) Mah LJ 483 [LNIND
1987 BOM 124] [LNIND 1987 BOM 124] [LNIND 1987 BOM 124]; Madhusudan Paswan v State of Bihar AIR 1989 Pat 106,
Madhusudan Paswan v State of Bihar (1989) BLJR 140, Madhusudan Paswan v State of Bihar (1989) Pat LJR (HC) 157. As to
hearings see [005.058] and [005.059]. See further [005.115].
2 Jawaharlal Nehru University v BS Narwal AIR 1980 SC 1666 [LNIND 1980 SC 366] [LNIND 1980 SC 366] [LNIND 1980 SC
366], Jawaharlal Nehru University v BS Narwal (1980) 4 SCC 480 [LNIND 1980 SC 366] [LNIND 1980 SC 366] [LNIND 1980
SC 366], Jawaharlal Nehru University v BS Narwal [1981] 1 SCR 618 [LNIND 1980 SC 366] [LNIND 1980 SC 366] [LNIND
1980 SC 366] (the university had power to remove a student from a course on the basis of unsatisfactory academic
performance). As to instances of application of natural justice see [005.087] and following.
3 Suresh Koshy George v University of Kerala AIR 1969 SC 198 [LNIND 1968 SC 161] [LNIND 1968 SC 161] [LNIND 1968 SC
161], Suresh Koshy George v University of Kerala (1969) 1 SCJ 543; Prem Prakash Kaluniya v Punjab University AIR 1972 SC
1408, Prem Prakash Kaluniya v Punjab University (1973) 3 SCC 424; Hira Nath Mishra v Rajendra Medical College, Ranchi
AIR 1973 SC 1260 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113], Hira Nath Mishra v Rajendra Medical
College, Ranchi (1973) 1 SCC 805 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113], Hira Nath Mishra v
Rajendra Medical College, Ranchi (1974) 1 SCJ 223 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113];
Board of Technical Education, Uttar Pradesh v Dhanwantri Kumar AIR 1991 SC 271 [LNIND 1990 SC 626] [LNIND 1990 SC
626] [LNIND 1990 SC 626], Board of Technical Education, Uttar Pradesh v Dhanwantri Kumar (1990) All LJ 874. As to
instances of non-application of natural justice see [005.109] and following.

NATURAL JUSTICE/B. SPECIFIC INSTANCES/(i) Disciplinary Action/[005.104] Against employees of public
authorities
[005.104] Against employees of public authorities In the matter of dismissal and termination of service of
an employee1 by public authorities, a hearing2 must be given to the affected person3.
Where service conditions of employees are governed by statutory provisions, the requirement of natural
justice must be read into the statute in the case of termination of service of an employee of a public authority.
Even in the absence of statutory provisions regulating service conditions of employees of a statutory
corporation, natural justice4 must be observed while taking disciplinary action against them5.
1 As to dismissal and termination of service of an employee see [130]EMPLOYMENT.
3 Delhi Transport Corpn v Delhi Transport Corpn Mazdoor Congress AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC
824] [LNIND 1990 SC 824], Delhi Transport Corpn v Delhi Transport Corpn Mazdoor Congress (1991) Supp 1 SCC 600, Delhi
Transport Corpn v Delhi Transport Corpn Mazdoor Congress [1990] Supp 1 SCR 142. See Sukhdev Singh v Bhagat Ram
Sardar Singh Raghuvanshi AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh
v Bhagat Ram Sardar Singh Raghuvanshi (1975) 1 SCC 421 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC 79],
Sukhdev Singh v Bhagat Ram Sardar Singh Raghuvanshi [1975] 2 SCR 619; Sirsi Municipality by its President v Cecelia Kom
Francis Tellis AIR 1973 SC 855 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16], Sirsi Municipality by its
President v Cecelia Kom Francis Tellis (1973) 1 SCC 409 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16], Sirsi
Municipality by its President v Cecelia Kom Francis Tellis [1973] 3 SCR 348 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND
1973 SC 16]; Bool Chand v Chancellor, Kurukshetra University AIR 1968 SC 292 [LNIND 1967 SC 254] [LNIND 1967 SC 254]
[LNIND 1967 SC 254], Bool Chand v Chancellor, Kurukshetra University [1968] 1 SCR 434 [LNIND 1967 SC 254] [LNIND 1967
SC 254] [LNIND 1967 SC 254]; Jagdish Pandey v Chancellor, University of Bihar AIR 1968 SC 353 [LNIND 1967 SC 233]
157 157
Page
[LNIND 1967 SC 233] [LNIND 1967 SC 233], Jagdish Pandey v Chancellor, University of Bihar [1968] 1 SCR 231 [LNIND 1967
SC 233] [LNIND 1967 SC 233] [LNIND 1967 SC 233]; Calcutta Dock Labour Board v Jaffar Imam AIR 1966 SC 282 [LNIND
1965 SC 92] [LNIND 1965 SC 92] [LNIND 1965 SC 92], Calcutta Dock Labour Board v Jaffar Imam [1965] 3 SCR 453 [LNIND
1965 SC 92] [LNIND 1965 SC 92] [LNIND 1965 SC 92], Calcutta Dock Labour Board v Jaffar Imam (1965) 2 LLJ 112 [LNIND
1965 SC 92] [LNIND 1965 SC 92] [LNIND 1965 SC 92]; Mafatlal Narandas Barot v JD Rathod, Divisional Controller, State
Transport Mehsana AIR 1966 SC 1364 [LNIND 1965 SC 372] [LNIND 1965 SC 372] [LNIND 1965 SC 372], Mafatlal Narandas
Barot v JD Rathod, Divisional Controller, State Transport Mehsana [1964] 3 SCR 40, Mafatlal Narandas Barot v JD Rathod,
Divisional Controller, State Transport Mehsana (1966) 1 LLJ 437 [LNIND 1965 SC 372] [LNIND 1965 SC 372] [LNIND 1965 SC
372].
5 Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narayan Vajpayee AIR 1980 SC 840 [LNIND 1980 SC 13]
[LNIND 1980 SC 13] [LNIND 1980 SC 13], Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narayan Vajpayee
(1980) 3 SCC 459 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13], Managing Director, Uttar Pradesh
Warehousing Corpn v Vijay Narayan Vajpayee [1980] 2 SCR 773 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC
13]; KL Tripathi v State Bank of India AIR 1984 SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL
v State Bank of India [1984] 1 SCR 184 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283] (there should be a
hearing according to natural justice whenever an employee of a statutory corporation is to be subjected to any adverse or penal
consequences).

NATURAL JUSTICE/B. SPECIFIC INSTANCES/(i) Disciplinary Action/[005.105] Against government
servants
[005.105] Against government servants Any civil employee of the government will not be dismissed or
removed or reduced in rank except after an inquiry1 in which he has been informed of the charges against
him and been given a reasonable opportunity of being heard in respect of those charges2. The expression
'reasonable opportunity of being heard' means that the concerned civil servant has to be given a hearing3
according to the principles of natural justice4.
Any government action, other than dismissal, removal or reduction in rank, affecting a civil servant, is also
subject to a hearing according to the principles of natural justice5. This proposition was applied in the
following instances:
(1) The punishment of censure will not be imposed on a civil servant without giving him an
opportunity to show cause against the proposed penalty6.
(2) An order for forfeiture of past service of a government employee for participation in an illegal
strike will not be made without observing natural justice7.
(3) When a prejudicial order is made against a government servant depriving him of his
increments above the stage of efficiency bar retrospectively after his retirement, it is obligatory
on the government to hear the concerned government servant8.
(4) Where an order of compulsory retirement casts a stigma on the employee, he must be given a
hearing before passing such an order9.
(5) When there is some dispute about the date of birth of an employee, he should be given a
hearing before the matter is decided by the concerned authority10.
1 As to inquiries see [005.090].
2 Constitution of India art 311(2). See State of Punjab v V K Khanna [2001] 4 LRI 400, State of Punjab v V K Khanna AIR 2001
SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], State of Punjab v V K Khanna (2001) 2 SCC
330 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707]; Jagdamba Prasad Shukla v State of Uttar Pradesh
AIR 2000 SC 2806, Jagdamba Prasad Shukla v State of Uttar Pradesh (2000) 7 SCC 90, Jagdamba Prasad Shukla v State of
Uttar Pradesh (2000) 9 JT 457.
158 158
Page
4 Arjun Chaubey v Union of India AIR 1984 SC 1356 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90], Arjun
Chaubey v Union of India (1984) 2 SCC 578 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90], Arjun Chaubey v
Union of India [1984] 3 SCR 302 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90]; Nand Kishore Prasad v State
of Bihar AIR 1978 SC 1277 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore Prasad v State of
Bihar (1978) 3 SCC 366 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore Prasad v State of
Bihar [1978] 3 SCR 708 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135]. As to principles of natural justice
see [005.054] and following.
5 Gajanan L Pernekar v State of Goa AIR 1999 SC 3262 [LNIND 1999 SC 698] [LNIND 1999 SC 698] [LNIND 1999 SC 698],
Gajanan L Pernekar v State of Goa (1999) 8 SCC 378 [LNIND 1999 SC 698] [LNIND 1999 SC 698] [LNIND 1999 SC 698],
Gajanan L Pernekar v State of Goa (1999) 6 JT 261.
6 State of Uttar Pradesh v Vijay Kumar Tripathi AIR 1995 SC 1130 [LNIND 1994 SC 1270] [LNIND 1994 SC 1270] [LNIND
1994 SC 1270], State of Uttar Pradesh v Vijay Kumar Tripathi (1995) Supp 1 SCC 552.
7 Shiv Shanker v Union of India AIR 1985 SC 514 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18], Shiv
Shanker v Union of India (1985) 2 SCC 30 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18], Shiv Shanker v
Union of India (1985) 1 LLJ 437 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18].
8 O P Gupta v Union of India AIR 1987 SC 2257 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626], O P
Gupta v Union of India (1987) 4 SCC 328 [LNIND 1987 SC 626] [LNIND 1987 SC 626] [LNIND 1987 SC 626], O P Gupta v
SR Venkataraman v Union of India AIR 1979 SC 49, SR Venkataraman v Union of India (1979) 2 SCC 491, SR Venkataraman
v Union of India [1979] 2 SCR 202; Manager, Government Branch Press v D B Belliappa AIR 1979 SC 429 [LNIND 1978 SC
364] [LNIND 1978 SC 364] [LNIND 1978 SC 364], Manager, Government Branch Press v D B Belliappa (1979) 1 SCC 477
[LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND 1978 SC 364], Manager, Government Branch Press v D B Belliappa
[1979] 2 SCR 458 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND 1978 SC 364]; Baldev Raj Chadha v Union of India AIR
1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333], Baldev Raj Chadha v Union of India (1980) 4
SCC 321 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333], Baldev Raj Chadha v Union of India [1981] 1
However, see contra, Union of India v JN Sinha AIR 1971 SC 40 [LNIND 1970 SC 303] [LNIND 1970 SC 303] [LNIND 1970 SC
303], Union of India v JN Sinha [1971] 1 SCR 791 [LNIND 1970 SC 303] [LNIND 1970 SC 303] [LNIND 1970 SC 303]; State of
Uttar Pradesh v Shyam Lal Sharma AIR 1971 SC 2151 [LNIND 1971 SC 373] [LNIND 1971 SC 373] [LNIND 1971 SC 373],
State of Uttar Pradesh v Shyam Lal Sharma (1971) 2 SCC 514 [LNIND 1971 SC 373] [LNIND 1971 SC 373] [LNIND 1971 SC
373], State of Uttar Pradesh v Shyam Lal Sharma [1972] 1 SCR 184 [LNIND 1971 SC 373] [LNIND 1971 SC 373] [LNIND 1971
SC 373]; E Venkateswararao Naidu v Union of India AIR 1973 SC 698 [LNIND 1973 SC 2] [LNIND 1973 SC 2] [LNIND 1973
SC 2], E Venkateswararao Naidu v Union of India (1973) 1 SCC 361 [LNIND 1973 SC 2] [LNIND 1973 SC 2] [LNIND 1973 SC
2]; Union of India v ME Reddy AIR 1980 SC 563 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379], Union of
India v ME Reddy (1980) 2 SCC 15 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379], Union of India v ME
Reddy [1980] 1 SCR 736 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379]; State of Sikkim v Sonam Lama
AIR 1991 SC 534, State of Sikkim v Sonam Lama (1991) Supp 1 SCC 179: A government servant may be compulsorily retired
before the normal age of superannuation if the government is of the opinion that it is in public interest to do so. The judicial
attitude is that in case of compulsory retirement, the employee does not suffer any loss in his retiral benefits and, thus, he
suffers no civil consequences except that he loses his job and so there is no need to give him a hearing. If an order is passed
compulsorily retiring an employee from service in the public interest, without casting any stigma on him, it is not necessary to
observe the principles of natural justice.
Binapani Dei (1967) 2 LLJ 266 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37] (the authority which compulsorily
retired the petitioner from service on account of some dispute as to her age of birth was required to observe the principles of
natural justice. Further, held that the government cannot itself change the date of birth of an employee once accepted by it
without giving him a hearing. See Sarjoo Prasad v The General Manager AIR 1981 SC 1481 [LNIND 1981 SC 45] [LNIND 1981
SC 45] [LNIND 1981 SC 45], Sarjoo Prasad v The General Manager (1981) 3 SCC 544 [LNIND 1981 SC 45] [LNIND 1981 SC
45] [LNIND 1981 SC 45], Sarjoo Prasad v The General Manager (1981) 2 SCJ 203; Union of India v Jyoti Prakash AIR 1971
SC 1093 [LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], Union of India v Jyoti Prakash (1971) 1 SCC 396
[LNIND 1971 SC 54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], Union of India v Jyoti Prakash [1971] 3 SCR 483 [LNIND 1971

159 159
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NATURAL JUSTICE/B. SPECIFIC INSTANCES/(i) Disciplinary Action/[005.106] Against passport holders
[005.106] Against passport holders An order impounding the passport of an Indian citizen1 will be null and
void unless he is given a hearing2.
1 Ie under the Passport Act 1967 s 10(3) (c). See further [55]CITIZENSHIP AND MIGRATION.
2 .See Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25],
Gandhi v Union of India [1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25] (fair play being the
test of applicability of natural justice, there can be no distinction between a quasi-judicial and an administrative function for this
purpose). As to hearings see [005.058] and [005.059].

NATURAL JUSTICE/B. SPECIFIC INSTANCES/(i) Disciplinary Action/[005.107] Against pensioners
[005.107] Against pensioners When a civil servant retires from service, it is his right to receive pension1.
Therefore, the government cannot reduce or withhold pension without giving an opportunity to the affected
person to make his defence2.
Similarly, gratuity payable to a government servant upon retirement3 cannot be reduced without giving the
employee a reasonable opportunity of being heard4.
1 As to civil servants right to receive pension see [265]SERVICES UNDER THE STATE.
2 State of Punjab v Iqbal Singh AIR 1976 SC 667 [LNIND 1976 SC 45] [LNIND 1976 SC 45] [LNIND 1976 SC 45], State of
Punjab v Iqbal Singh (1976) 2 SCC 1 [LNIND 1976 SC 45] [LNIND 1976 SC 45] [LNIND 1976 SC 45], State of Punjab v Iqbal
Singh [1976] 3 SCR 360 [LNIND 1976 SC 45] [LNIND 1976 SC 45] [LNIND 1976 SC 45]; State of Punjab v KR Erry AIR 1973
SC 834 [LNIND 1973 SC 281] [LNIND 1973 SC 281] [LNIND 1973 SC 281], State of Punjab v KR Erry (1973) 1 SCC 120
[LNIND 1972 SC 606] [LNIND 1972 SC 606] [LNIND 1972 SC 606], State of Punjab v KR Erry [1973] 2 SCR 405 [LNIND 1972
SC 606] [LNIND 1972 SC 606] [LNIND 1972 SC 606]. As to application of principles of natural justice see [005.058] and
following.
3 As to gratuity payable to government servant upon retirement see [265]SERVICES UNDER THE STATE.
4 Union of India v G Gangayutham (decd) by lrs AIR 1997 SC 3387 [LNIND 1997 SC 1123] [LNIND 1997 SC 1123] [LNIND
1997 SC 1123], Union of India v G Gangayutham (decd) by lrs (1997) 7 SCC 463 [LNIND 1997 SC 1123] [LNIND 1997 SC
1123] [LNIND 1997 SC 1123]; Jarnail Singh v Secretary, Ministry of Home Affairs AIR 1994 SC 1484 [LNIND 1992 SC 878]
[LNIND 1992 SC 878] [LNIND 1992 SC 878], Jarnail Singh v Secretary, Ministry of Home Affairs (1993) 1 SCC 47 [LNIND 1992
SC 878] [LNIND 1992 SC 878] [LNIND 1992 SC 878], Jarnail Singh v Secretary, Ministry of Home Affairs (1993) 1 LLJ 962
[LNIND 1992 SC 878] [LNIND 1992 SC 878] [LNIND 1992 SC 878]. As to hearings see [005.058] and [005.059].

NATURAL JUSTICE/B. SPECIFIC INSTANCES/(ii) Miscellaneous Situations/[005.108] In general
[005.108] In general In the following situations, hearing will be afforded to the person concerned either by
characterising the function discharged by the administration as quasi-judicial1, or without characterising the
function as quasi-judicial, but holding that natural justice must be followed:
160 160
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(1) termination of citizenship of an Indian citizen2 on the ground that he has acquired citizenship of
another country3;
(2) winding up a cooperative society4;
(3) passing an order of forfeiture of past service of a government employee for participation in an
illegal strike5;
(4) proceedings to impose damages6 by the commissioner for failure to deposit provident fund by
the employer7;
(5) withdrawing protection granted to a tenant against eviction under a statute8;
(6) deletion of a name from the electoral roll9.
Natural justice10 will be observed not only when statutory power is being exercised but also when a decision
is taken administratively11 which involves civil consequences to a person12.
2 As to termination of citizenship see generally [55]CITIZENSHIP AND MIGRATION.
3 Mohd Ayub Khan v Comr of Police, Madras AIR 1965 SC 1623, Mohd Ayub Khan v Comr of Police, Madras [1965] 2 SCR
884.
4 President, Commonwealth Co-operative Society Ltd, Ernakulam v Joint Registrar (General) of Co-operative Societies,
Trivandrum AIR 1971 Ker 34, President, Commonwealth Co-operative Society Ltd, Ernakulam v Joint Registrar (General) of
Co-operative Societies, Trivandrum (1969) ILR Ker 152.
5 Shiv Shanker v Union of India AIR 1985 SC 514 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18], Shiv
Shanker v Union of India (1985) 2 SCC 30 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18], Shiv Shanker v
Union of India (1985) 1 LLJ 437 [LNIND 1985 SC 18] [LNIND 1985 SC 18] [LNIND 1985 SC 18]. See generally [265]SERVICES
UNDER THE STATE.
6 As to damages see generally DAMAGES[115.035].
7 Organo Chemical Industries v Union of India AIR 1979 SC 1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979
SC 288], Organo Chemical Industries v Union of India (1979) 4 SCC 573 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND
1979 SC 288], Organo Chemical Industries v Union of India [1980] 1 SCR 61 [LNIND 1979 SC 288] [LNIND 1979 SC 288]
[LNIND 1979 SC 288]. As to deposit of provident fund by the employer see generally see [130]EMPLOYMENT.
8 A N Dyes Corpn v State of Andhra Pradesh AIR 1981 AP 386 [LNIND 1981 AP 156] [LNIND 1981 AP 156] [LNIND 1981 AP
156], A N Dyes Corpn v State of Andhra Pradesh (1981) 2 Andh LT 226. As to statutory protection of tenants against eviction
and withdrawal thereof see generally [200]LANDLORD AND TENANT.
9 Lal Babu Hussain v Electoral Registration Officer AIR 1995 SC 1189 [LNIND 1995 SC 204] [LNIND 1995 SC 204] [LNIND
1995 SC 204], Lal Babu Hussain v Electoral Registration Officer (1995) 3 SCC 100 [LNIND 1995 SC 204] [LNIND 1995 SC 204]
[LNIND 1995 SC 204]. As to deletion of name from electoral roll and remedies thereof see ELECTIONS[125.213], [125.235]
and [125.695].
11 As to administrative adjudication see [005.143] and following.
12
Apeejay (Pvt) Ltd v Union of India AIR 1978 Cal 577 [LNIND 1978 CAL 148] [LNIND 1978 CAL 148] [LNIND 1978 CAL 148],
Apeejay (Pvt) Ltd v Union of India (1978) 1 Cal LJ 354 [LNIND 1978 CAL 148] [LNIND 1978 CAL 148] [LNIND 1978 CAL 148].
The following are some distinctive cases to further exemplify the liberal judicial trend as regards the right of hearing:
(1) Indian Sugar and Refineries Ltd v Amarvathi Service Co-operative Society Ltd AIR 1976 SC 775 [LNIND 1975
SC 591] [LNIND 1975 SC 591] [LNIND 1975 SC 591], Indian Sugar and Refineries Ltd v Amarvathi Service
Co-operative Society Ltd (1976) 1 SCC 318 [LNIND 1975 SC 591] [LNIND 1975 SC 591] [LNIND 1975 SC
591], Indian Sugar and Refineries Ltd v Amarvathi Service Co-operative Society Ltd [1976] 2 SCR 740 [LNIND
1975 SC 591] [LNIND 1975 SC 591] [LNIND 1975 SC 591] (the government was bound to give a hearing to
the sugarcane growers as well as to the producers while exercising its power of exemption from payment of
any additional price, fixed by the government as a method of profit sharing between the growers and the
manufacturers, since it affected the rights and interests of the cane-growers).
(3) State (Delhi Administration) v VC Shukla AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179]
[LNIND 1980 SC 179], State (Delhi Administration) v VC Shukla (1980) 2 SCC 665 [LNIND 1980 SC 179]
161 161
Page
[LNIND 1980 SC 179] [LNIND 1980 SC 179] (it was not necessary for the government to observe principles of
natural justice before making a declaration that an offence, amongst the offences referred to in the preamble to
the Special Courts Act 1979, committed by person holding high public or political office, should be tried under
the Act by a special court).
(4) Kihota Hollohon v Zachilhu AIR 1993 SC 412 [LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC
175], Kihota Hollohon v Zachilhu (1992) Supp 2 SCC 651, Kihota Hollohon v Zachilhu [1992] 1 SCR 686
[LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC 175]; Ravi S Naik v Union of India AIR 1994 SC
1558 at 1564, Ravi S Naik v Union of India (1994) Supp 2 SCC 641 (the Speaker acts in a quasijudicial
manner, and has to follow natural justice while adjudicating upon the matter disqualification of a member on
the grounds of defection).
(5) D Subba Rao v State of Andhra Pradesh AIR 1975 SC 94, D Subba Rao v State of Andhra Pradesh (1975) 4
SCC 808 (natural justice will be followed when the president of a village panchayat is sought to be removed
from office). See however Gurucharan Singh v State of Haryana AIR 1979 P & H 61, Gurucharan Singh v
State of Haryana (1978) Punj LJ 403, Gurucharan Singh v State of Haryana 81 Punj LR 170 (natural justice
may not be required in case of mere suspension).
(6) National Textile Workers' Union v PR Ramakrishnan AIR 1983 SC 75, National Textile Workers' Union v PR
Ramakrishnan (1983) 1 SCC 228, National Textile Workers' Union v PR Ramakrishnan [1983] 1 SCR 922
(when an application for winding up of a company is presented in a court, the workers are entitled to be heard
as they are bound to be adversely affected if the company is wound up).
(7) Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986
SC 394] [LNIND 1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1986) 4 SCC 537
[LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394], Institute of Chartered Accountants of India
v L K Ratna [1986] 3 SCR 1049 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND 1986 SC 394]; An
Advocate In Re AIR 1989 SC 245, An Advocate In Re (1988) 4 JT 376. Gramophone Co of India Ltd v
Birendra Bahadur Pandey AIR 1984 SC 667 [LNIND 1984 SC 51] [LNIND 1984 SC 51] [LNIND 1984 SC 51],
Gramophone Co of India Ltd v Birendra Bahadur Pandey (1984) 2 SCC 534 [LNIND 1984 SC 51] [LNIND 1984
SC 51] [LNIND 1984 SC 51], Gramophone Co of India Ltd v Birendra Bahadur Pandey [1984] 2 SCR 664
[LNIND 1984 SC 51] [LNIND 1984 SC 51] [LNIND 1984 SC 51] (before disciplinary action is taken against a
person on the ground of professional misconduct, the disciplinary authority has to follow natural justice and
give an opportunity of being heard to the concerned person against the charges levelled against him).

ADMINISTRATIVE LAW/8. PRINCIPLES OF NATURAL JUSTICE/(8) INSTANCES OF NON APPLICATION
OF NATURAL JUSTICE/A. GROUNDS FOR EXCLUSION/[005.109] Legislative function
[005.109] Legislative function A ground for excluding a hearing is that the administrative action in question
is legislative and not administrative in character1. An order of a general nature, and not one applying to one
person or a few specific persons, may be regarded as legislative2.
Natural justice is not applicable to legislative action except when the relevant statute itself ordains some kind
of a hearing3. For instance, in the making of rules, no hearing need be given unless the statute expressly
provides for the same4. In the following cases, inter alia, denial of natural justice was upheld as the function
was held to be legislative in nature:
(1) a notification issued by the cane commissioner prohibiting power crushers and 'khandsari
units' from working their units in any reserved area of any sugar mill for a few months, in order
to increase the production of sugar5;
(2) a notification issued by the government extending the limits of a town area committee6;
(3) enhancement of electricity rates7;
(4) an order fixing price of a commodity.
There are, however, cases where the Supreme Court has adopted a liberal approach in the matter of
procedural safeguards to the individual even though, on the face of it, the function in question may be
characterised as legislative in character8.
162 162
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3 Union of India v Cynamide India Ltd AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990],
Union of India v Cynamide India Ltd [1987] 2 SCR 841 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990];
Sarkari Sasta Anaj Vikreta Sangh, Tehsil Bemetra v State of Madhya Pradesh AIR 1981 SC 2030, Sarkari Sasta Anaj Vikreta
Sangh, Tehsil Bemetra v State of Madhya Pradesh (1981) 4 SCC 471; Rameshchandra Kachardas Porwal v State of
Maharashtra AIR 1981 SC 1127 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86], Rameshchandra Kachardas
Porwal v State of Maharashtra (1981) 2 SCC 722 [LNIND 1981 SC 86] [LNIND 1981 SC 86] [LNIND 1981 SC 86],
Rameshchandra Kachardas Porwal v State of Maharashtra [1981] 2 SCR 864; Visakhapatnam Port Trust v Ram Bahadur
Thakur Pvt Ltd AIR 1997 SC 1057 [LNIND 1997 SC 1702] [LNIND 1997 SC 1702] [LNIND 1997 SC 1702]at 1069,
Visakhapatnam Port Trust v Ram Bahadur Thakur Pvt Ltd (1997) 4 SCC 582 [LNIND 1997 SC 1702] [LNIND 1997 SC 1702]
[LNIND 1997 SC 1702], Visakhapatnam Port Trust v Ram Bahadur Thakur Pvt Ltd (1997) 2 JT 599. As to hearings see
[005.058] and [005.059].
4 As to the power to make rules see [005.009] and following.
5 See Laxmi Khandsari v State of Uttar Pradesh AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981
SC 140], Laxmi Khandsari v State of Uttar Pradesh (1981) 2 SCC 600 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND
1981 SC 140].
6 Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur AIR 1980 SC 882 [LNIND 1980 SC 92] [LNIND 1980 SC 92]
[LNIND 1980 SC 92], Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur (1980) 2 SCC 295 [LNIND 1980 SC 92]
[LNIND 1980 SC 92] [LNIND 1980 SC 92], Tulsipur Sugar Co Ltd v Notified Area Committee, Tulsipur [1980] 2 SCR 111 (it is
not required for a state government to give previous publicity to its proposal to declare any area as a town committee). See also
Sundarjas Kanyalal Bhathija v Collector, Thane, Maharashtra AIR 1990 SC 1803, Sundarjas Kanyalal Bhathija v Collector,
Thane, Maharashtra (1989) 3 SCC 396 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339], Sundarjas Kanyalal
Bhathija v Collector, Thane, Maharashtra [1989] 3 SCR 405 [LNIND 1989 SC 339] [LNIND 1989 SC 339] [LNIND 1989 SC 339].
7 Subhash Oil Industries v State of Uttar Pradesh AIR 1975 All 19 (in case of enhancement of rates of electric energy,
consumers have no right of hearing and the principles of natural justice do not apply).
The function of the government to notify an area as a slum area or a clearance area is quasi-judicial because of the impact of
such a notification on property rights of the people, although it could as well be regarded as legislative because of its general
nature: Scheduled Castes and Weaker Section Welfare Association (Regd) v State of Karnataka AIR 1991 SC 1118,
Scheduled Castes and Weaker Section Welfare Association (Regd) v State of Karnataka (1991) 2 SCC 604 [LNIND 1991 SC
180] [LNIND 1991 SC 180] [LNIND 1991 SC 180], Scheduled Castes and Weaker Section Welfare Association (Regd) v State
of Karnataka [1991] 1 SCR 974 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180]; Government of Mysore v J
V Bhat AIR 1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317], Government of Mysore v J V Bhat
See also State of Assam v Bharat Kala Bhandar Ltd AIR 1967 SC 1766 [LNIND 1967 SC 123] [LNIND 1967 SC 123] [LNIND
1967 SC 123], State of Assam v Bharat Kala Bhandar Ltd [1967] 3 SCR 490 [LNIND 1967 SC 123] [LNIND 1967 SC 123]
[LNIND 1967 SC 123] (it is not necessary that oral evidence must be taken as if the matter was being tried by a quasi-judicial
tribunal, but some kind of hearing seems to be the barest minimum).

OF NATURAL JUSTICE/A. GROUNDS FOR EXCLUSION/[005.110] Statutory exclusion of natural justice
[005.110] Statutory exclusion of natural justice A statute1 may exclude natural justice2 either expressly by
or necessary implication3. However, there should be a strong implication to exclude hearing4. Whether or not
natural justice will be excluded depends upon the language and basic scheme of the statutory provision
conferring the power, the nature of the power, the purpose for which it is conferred and the effect of the
exercise of that power5.

163 163
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3 State of Uttar Pradesh v Vijay Kumar Tripathi AIR 1995 SC 1130 [LNIND 1994 SC 1270] [LNIND 1994 SC 1270] [LNIND
1994 SC 1270](the rules may exclude the application of the principles of natural justice either expressly or by necessary
intendment); Umrao Singh Chadhury v State of Madhya Pradesh (1994) 4 SCC 328 [LNINDORD 1994 SC 21] [LNINDORD
1994 SC 21] [LNINDORD 1994 SC 21] (the principles of natural justice do not supplant the law but supplement the law); Union
of India v M E Reddy AIR 1980 SC 563 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379], Union of India v M
E Reddy (1980) 2 SCC 15 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379], Union of India v M E Reddy
4 Swadeshi Cotton Mills v Union of India AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28],
Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28],
Swadeshi Cotton Mills v Union of India [1981] 2 SCR 533 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28] (the
rule of fairplay must not be jettisoned save in very exceptional circumstances where compulsive necessity so demands).
It is not permissible to interpret any statutory instrument so as to exclude natural justice unless the language of the instrument
leaves no option to the court: Mohinder Singh Gill v Chief Election Comr, New Delhi AIR 1978 SC 851 [LNIND 1977 SC 332]
[LNIND 1977 SC 332] [LNIND 1977 SC 332], Mohinder Singh Gill v Chief Election Comr, New Delhi (1978) 1 SCC 405 [LNIND
1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], Mohinder Singh Gill v Chief Election Comr, New Delhi [1978] 2
SCR 272 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332] (natural justice is so integral to good governance
that the onus is on him who urges exclusion, to make out why). As to hearings see [005.058] and [005.059].
Union of India v Tulsiram Patel AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], Union
of India v Tulsiram Patel (1985) 3 SCC 15, Union of India v Tulsiram Patel [1985] Supp 2 SCR 131 (whether it was practicable
to hold the inquiry or not must be judged in the context of whether it was reasonably practicable to do so. What is required is
that the holding of the inquiry is not practicable in the opinion of a reasonable man taking a reasonable view of the prevailing
situation).
See however Workmen of Hindustan Steel Ltd v Hindustan Steel Ltd AIR 1985 SC 251 [LNIND 1984 SC 341] [LNIND 1984 SC
341] [LNIND 1984 SC 341], Workmen of Hindustan Steel Ltd v Hindustan Steel Ltd (1984) Supp SCC 554, Workmen of
Hindustan Steel Ltd v Hindustan Steel Ltd [1985] Supp 2 SCR 428 (grounds for dispensation of inquiry must be germane to the
issue of dispensing with the inquiry).

OF NATURAL JUSTICE/A. GROUNDS FOR EXCLUSION/[005.111] Statute providing hearing expressly in
one situation but silent in the other situation
[005.111] Statute providing hearing expressly in one situation but silent in the other situation Where
the statute prescribes hearing1 in one situation but is silent in another situation, the proceedings in the latter
case may be regarded as administrative2. However, it is not always a necessary inference that if opportunity
is expressly provided in one provision and not so provided in another, opportunity is to be considered as
excluded from that other provision. The silence of a statute3 has no exclusionary effect except where it
follows from necessary implication4.
2 Radeshyam v State of Madhya Pradesh AIR 1959 SC 107 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC
113], Radeshyam v State of Madhya Pradesh [1959] SCR 1440 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC
113], Radeshyam v State of Madhya Pradesh (1959) SCJ 6 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]
(the statute concerned expressly provided for a hearing if the municipality was to be dissolved by the government and the
legislative silence in the other situations meant that the legislature did not want hearing to be given in those cases); Mohd
Ibrahim v State Transport Appellate Tribunal, Madras AIR 1970 SC 1542 [LNIND 1970 SC 251] [LNIND 1970 SC 251] [LNIND
1970 SC 251], Mohd Ibrahim v State Transport Appellate Tribunal, Madras (1970) 2 SCC 233 [LNIND 1970 SC 251] [LNIND
1970 SC 251] [LNIND 1970 SC 251], Mohd Ibrahim v State Transport Appellate Tribunal, Madras [1971] 1 SCR 474 [LNIND
1970 SC 251] [LNIND 1970 SC 251] [LNIND 1970 SC 251], where the Supreme Court, in regarding the power of the
government to limit the stage carriage permits as administrative, emphasised that (whereas the statute had expressly provided
for a hearing in granting stage carriage permits, there was a total absence of any reference to hearing in the case of the
exercise of power to limit the stage carriage permits). As to administartive proceedings see [005.119] and following.
164 164
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4 Comr of Coal Mines Provident Fund Dhanbad v J P Lalla & Sons AIR 1976 SC 676 [LNIND 1976 SC 47] [LNIND 1976 SC
47] [LNIND 1976 SC 47], Comr of Coal Mines Provident Fund Dhanbad v J P Lalla & Sons (1976) 1 SCC 964 [LNIND 1976 SC
47] [LNIND 1976 SC 47] [LNIND 1976 SC 47], Comr of Coal Mines Provident Fund Dhanbad v J P Lalla & Sons [1976] 3 SCR
365 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47] (the principles of natural justice will be observed in
determining the extent of damages to be recovered from the employer for default in payment of his contribution of provident
fund, in spite of the legislative silence). See S L Kapoor v Jagmohan AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC
391] [LNIND 1980 SC 391], S L Kapoor v Jagmohan [1980] 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND
1980 SC 391], S L Kapoor v Jagmohan [1981] 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]
(each case must be judged on its own merits, the query being whether the refusal to give a hearing leads to injustice or
inconsistency in the specific situation). See also Swadeshi Cotton Mills v Union of India AIR 1981 SC 818 [LNIND 1981 SC 28]
[LNIND 1981 SC 28] [LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664 [LNIND 1981 SC 28]
[LNIND 1981 SC 28] [LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India [1981] 2 SCR 533 [LNIND 1981 SC 28]
[LNIND 1981 SC 28] [LNIND 1981 SC 28].

OF NATURAL JUSTICE/A. GROUNDS FOR EXCLUSION/[005.112] Prompt action
[005.112] Prompt action Hearing may be excluded where prompt action needs to be taken in the interest of
public safety, health, or morality. The following are instances where summary action1 may be taken:
(1) pulling down property2 to extinguish fire;

(2) destruction of contagious plant or animal life; or
(3) destruction of unwholesome food unfit for human consumption.
However, even when an emergency action is to be taken, the right of hearing may not be exclude3 without
affording minimal natural justice4, at least in a rudimentary manner, to the concerned party5.
As to what extent the rule of fair hearing6 would apply depends upon the degree of urgency evident from the
facts and circumstances of a case7.
1 As to summary action in general see CIVIL PROCEDURE[005.051].
2 As to property in general see [240]PROPERTY AND EASEMENTS.
Jagmohan [1980] 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v Jagmohan
[1981] 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391]; Swadeshi Cotton Mills v Union of India
AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India
(1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India
[1981] 2 SCR 533 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28]; Mohinder Singh Gill v Chief Election Comr,
New Delhi AIR 1978 SC 851 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], Mohinder Singh Gill v Chief
Election Comr, New Delhi (1978) 1 SCC 405 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC 332], Mohinder
Singh Gill v Chief Election Comr, New Delhi [1978] 2 SCR 272 [LNIND 1977 SC 332] [LNIND 1977 SC 332] [LNIND 1977 SC
332] (the cardinal principle of hearing as a condition for decision-making cannot be martyred for the cause of administrative
immediacy). As to instances of application of natural justice see [005.087] and following.
4 As to instances of non-application of natural justice see [005.087] and following.
6 As to the principle of audi alteram partem see [005.054] and following.
As to what extent and in what measure the rule of fair hearing will apply at the pre-decisional stage will depend upon the degree
of urgency, if any, evident from the facts and circumstances of the particular case: Swadeshi Cotton Mills v Union of India AIR
1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India (1981) 1
165 165
Page
SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India [1981] 2 SCR
533 [LNIND 1981 SC 28] [LNIND 1981 SC 28] [LNIND 1981 SC 28] (dispensing with the requirement of investigation by the
government prior to taking over an industrial undertaking does not necessarily indicate an intention to exclude the application of
fundamentals of natural justice or the duty to act fairly).
See further Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25],
Gandhi v Union of India [1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25] (when pre-decisional
hearing may not be found feasible, a way to overcome the difficulty may be to resort to postdecisional hearing. A passport may
be impounded in public interest without observing the principles of natural justice in the first instance, but as soon as the order
impounding the passport has been made, an opportunity of hearing, remedial in aim, should be given to the individual
concerned).

OF NATURAL JUSTICE/B. SPECIFIC SITUATIONS/[005.113] Selection of candidates
[005.113] Selection of candidates Mere selection of a candidate for a post does not give him an
indefeasible right to appointment1 to such a post. Therefore, when the government cancels the select list of
candidates because it was prepared in an unfair and injudicious manner, no opportunity of hearing need be
given to the selected candidates2.
1 As to appointment in general see [130]EMPLOYMENT.
2 Union Territory of Chandigarh v Dilbagh Singh AIR 1993 SC 796 [LNIND 1992 SC 793] [LNIND 1992 SC 793] [LNIND 1992
SC 793], Union Territory of Chandigarh v Dilbagh Singh (1993) 1 SCC 154 [LNIND 1992 SC 793] [LNIND 1992 SC 793] [LNIND
1992 SC 793], Union Territory of Chandigarh v Dilbagh Singh (1993) 1 SCJ 88; J Shashidhara Prasad v Government of
Karnataka AIR 1999 SC 849, J Shashidhara Prasad v Government of Karnataka (1999) 1 SCC 422, J Shashidhara Prasad v
Government of Karnataka (1999) 8 JT 344 see contra Shrawan Kumar Jha v State of Bihar AIR 1991 SC 309, Shrawan Kumar
Jha v State of Bihar (1991) Supp 1 SCC 330 (no order to the detriment of the persons concerned could be passed without
complying with the rules of natural justice); State of Uttar Pradesh v Madan Mohan Nagar AIR 1967 SC 1260 [LNIND 1967 SC
4] [LNIND 1967 SC 4] [LNIND 1967 SC 4], State of Uttar Pradesh v Madan Mohan Nagar [1967] 2 SCR 333 [LNIND 1967 SC 4]
[LNIND 1967 SC 4] [LNIND 1967 SC 4], State of Uttar Pradesh v Madan Mohan Nagar (1967) 2 LLJ 63 [LNIND 1967 SC 4]
[LNIND 1967 SC 4] [LNIND 1967 SC 4]; IN Saksena v State of Madhya Pradesh AIR 1967 SC 1264 [LNIND 1967 SC 22]
[LNIND 1967 SC 22] [LNIND 1967 SC 22], IN Saksena v State of Madhya Pradesh [1967] 2 SCR 496 [LNIND 1967 SC 22]
[LNIND 1967 SC 22] [LNIND 1967 SC 22], IN Saksena v State of Madhya Pradesh (1967) 2 LLJ 427 [LNIND 1967 SC 22]
[LNIND 1967 SC 22] [LNIND 1967 SC 22]; Ram Ekbal Sharma v State of Bihar AIR 1990 SC 1368 [LNIND 1990 SC 831]
[LNIND 1990 SC 831] [LNIND 1990 SC 831], Ram Ekbal Sharma v State of Bihar (1990) 3 SCC 504 [LNIND 1990 SC 831]
[LNIND 1990 SC 831] [LNIND 1990 SC 831], Ram Ekbal Sharma v State of Bihar [1990] 2 SCR 679 [LNIND 1990 SC 831]
[LNIND 1990 SC 831] [LNIND 1990 SC 831]; State of Uttar Pradesh v Abhai Kishore Masta (1995) 1 SCC 336, State of Uttar
Pradesh v Abhai Kishore Masta (1995) 1 SCJ 199, State of Uttar Pradesh v Abhai Kishore Masta (1995) Lab IC 1401. As to
instances of non-application of natural justice see [005.087] and following.

OF NATURAL JUSTICE/B. SPECIFIC SITUATIONS/[005.114] Suspension of employees
[005.114] Suspension of employees Suspension of an employee1 pending disciplinary proceedings2

against him does not amount to a punishment. Accordingly, no hearing3 need be given when an employee is
suspended4.
1 As to suspension of employees in general see [130]EMPLOYMENT.
2 As to disciplinary proceedings and natural justice see [005.117] and following.

166 166
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4 Furnell v Whangarei High Schools Board [1973] AC 660, Furnell v Whangarei High Schools Board [1973] 1 All ER 400,
Furnell v Whangarei High Schools Board [1973] 2 WLR 92, PC. As to suspension see generally [130]EMPLOYMENT.

OF NATURAL JUSTICE/B. SPECIFIC SITUATIONS/[005.115] Mass copying
[005.115] Mass copying Where an authority having to deal with a large number of cases is required to give
a hearing to the concerned party in each and every case, it may not be able to perform its work and,
therefore, this may be a basis for holding the function to be administrative1. Where a case for mass copying
in an examination is made out, no hearing need be given to the candidates before cancelling the
examination2.
2 Laxmi Khandsari v State of Uttar Pradesh AIR 1981 SC 873 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND 1981 SC
140]at 893, Laxmi Khandsari v State of Uttar Pradesh (1981) 2 SCC 600 [LNIND 1981 SC 140] [LNIND 1981 SC 140] [LNIND
1981 SC 140]; Mohd Ibrahim Khan v State of Madhya Pradesh AIR 1980 SC 517 [LNIND 1979 SC 384] [LNIND 1979 SC 384]
[LNIND 1979 SC 384], Mohd Ibrahim Khan v State of Madhya Pradesh (1979) 4 SCC 458 [LNIND 1979 SC 384] [LNIND 1979
SC 384] [LNIND 1979 SC 384], Mohd Ibrahim Khan v State of Madhya Pradesh [1980] 1 SCR 792 [LNIND 1979 SC 384]
[LNIND 1979 SC 384] [LNIND 1979 SC 384].

OF NATURAL JUSTICE/B. SPECIFIC SITUATIONS/[005.116] Where facts are indisputable or their failure
does not cause prejudice
[005.116] Where facts are indisputable or their failure does not cause prejudice Where the basic facts
are so apparent and revealing that no other inference is possible and when the concerned person has no
prima facie or plausible explanation on record to defend himself, no inquiry may be necessary1.
Aligarh Muslim University v Mansoor Ali Khan (2000) 7 SCC 529 [LNIND 2000 SC 1156] [LNIND 2000 SC 1156] [LNIND 2000
SC 1156] at 540 (where on the admitted or indisputable facts, only one view is possible, natural justice need not be applied);
Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v Educational Appellate Tribunal AIR 1999
SC 3219 [LNIND 1999 SC 724] [LNIND 1999 SC 724] [LNIND 1999 SC 724], Dharmarathmakara Raibahadur Arcot
Ramaswamy Mudaliar Educational Institution v Educational Appellate Tribunal (1999) 7 SCC 332 [LNIND 1999 SC 724] [LNIND
1999 SC 724] [LNIND 1999 SC 724], Dharmarathmakara Raibahadur Arcot Ramaswamy Mudaliar Educational Institution v
Educational Appellate Tribunal (1996) 6 JT 60 (where the basic facts are so apparent and revealing that no other inference is
possible, when facts speak for themselves, and when the concerned person has no prima facie or plausible explanation on
record to defend himself, no inquiry may be necessary).
See however SL Kapoor v Jagmohan AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL
Kapoor v Jagmohan [1980] 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v
Jagmohan [1981] 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391] (the non-observance of
natural justice is itself prejudice to any man and proof of prejudice independently of proof of denial of natural justice is
unnecessary. Principles of natural justice know of no exclusionary rule dependent on whether it would have made any
difference if natural justice had been observed. Further, the general principle that justice should not only be done but should be
seen to be done is applicable, in particular, when the court is concerned not with a case of actual injustice but with the
appearance of possible injustice). See also Shiv Sagar Tiwari v Union of India AIR 1997 SC 2725 [LNIND 1996 SC 1873]
[LNIND 1996 SC 1873] [LNIND 1996 SC 1873]at 2736. As to instances of non-application of natural justice see [005.087] and
following.
167 167
Page
See John v Rees [1970] Ch 345, John v Rees [1969] 2 All ER 274; Ridge v Baldwin [1964] AC 40, Ridge v Baldwin [1963] 2
All ER 66, Ridge v Baldwin [1963] 2 WLR 935 (breach of the principles of natural justice is in itself sufficient to grant relief).

ADMINISTRATIVE LAW/9. DISCIPLINARY PROCEEDINGS AND NATURAL JUSTICE/(1)
GENERALLY/[005.117] In general
[005.117] In general The principles of natural justice directly come into play in the area of disciplinary
proceedings against public servants1. A civil servant cannot be dismissed, removed or reduced in rank,
except after an inquiry in which he has been informed of the charges against him and given a reasonable
opportunity of being heard in respect of those charges2.
1 Sayeedur Rehman v State of Bihar AIR 1973 SC 239 [LNIND 1972 SC 558] [LNIND 1972 SC 558] [LNIND 1972 SC 558],
Sayeedur Rehman v State of Bihar (1973) 3 SCC 333 [LNIND 1972 SC 558] [LNIND 1972 SC 558] [LNIND 1972 SC 558],
Sayeedur Rehman v State of Bihar (1973) SCD 194 [LNIND 1972 SC 558] [LNIND 1972 SC 558] [LNIND 1972 SC 558];
Channabasappa Basappa Happali v State of Mysore AIR 1972 SC 32 [LNIND 1970 SC 431] [LNIND 1970 SC 431] [LNIND
1970 SC 431], Channabasappa Basappa Happali v State of Mysore [1971] 2 SCR 645 [LNIND 1970 SC 431] [LNIND 1970 SC
431] [LNIND 1970 SC 431], Channabasappa Basappa Happali v State of Mysore (1971) 2 SCJ 412. As to the principles of
natural justice see [005.054]-[005.059].
2 See the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW). As to reasonable opportunity of being
heard see: hearing [005.058] and following.

GENERALLY/[005.118] Meaning of 'reasonable opportunity'
[005.118] Meaning of 'reasonable opportunity' The expression 'reasonable opportunity of being heard1 is
synonymous with natural justice. The essential point is that the person concerned must have a reasonable
opportunity of presenting his case and that the disciplinary authority concerned must act fairly, impartially
and reasonably. The duty is not so much to act judicially as fairly2. The concept of 'reasonable opportunity to
show cause' is also synonymous with natural justice3.
There must be an inquiry into the charges made against a government servant before punishment is
awarded against him4. It is necessary to give him a chance to show his innocence by holding an inquiry into
the charges against him5.
The concept of 'reasonable opportunity' being a constitutional limitation on the doctrine of 'tenure at
pleasure', Parliament or a state Legislature can make a law defining the content of 'reasonable opportunity'
and prescribe procedure for affording the said opportunity to the accused government servant. Pending
legislation, the executive can make rules for the purpose6. Neither the law nor the rules are, however,
decisive of the content of the concept of 'reasonable opportunity'. It is for the courts to ascertain whether or
not the law or the rules provide a reasonable opportunity and the courts can thus, test the validity of the law
or the rules from this point of view7.
The disciplinary proceedings before a domestic tribunal are of quasijudicial character and thus, minimum
requirement of the rules of natural justice is that the tribunal must arrive at conclusions on the basis of some
evidence. The opportunity of hearing to be given to the delinquent employee must be an effective opportunity
and not a mere pretence8.
168 168
Page
1 See [005.058].
v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362].
3 See the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW): art 311(2) gives a constitutional mandate
to the principles of natural justice.
4 Ie any punishment awarded as per the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW).
5 Jagdish Prasad Saxena v State of Madhya Bharat (now Madhya Pradesh) AIR 1961 SC 1070 [LNIND 1960 SC 250] [LNIND
1960 SC 250] [LNIND 1960 SC 250], Jagdish Prasad Saxena v State of Madhya Bharat (now Madhya Pradesh) (1961) Jab LJ
414; Amalendu Ghosh v District Traffic Superintendent, North Eastern Railway, Katihar AIR 1960 SC 992 [LNIND 1960 SC 11]
[LNIND 1960 SC 11] [LNIND 1960 SC 11], Amalendu Ghosh v District Traffic Superintendent, North Eastern Railway, Katihar
(1960) 2 Lab LJ 61 [LNIND 1960 SC 11] [LNIND 1960 SC 11] [LNIND 1960 SC 11], Amalendu Ghosh v District Traffic
Superintendent, North Eastern Railway, Katihar (1960) BLJR 407 [LNIND 1960 SC 11] [LNIND 1960 SC 11] [LNIND 1960 SC
11].
6 See the Constitution of India art 309: pending legislation, the executive can make rules to define and regulate service
conditions of civil servants (see generally[80]CONSTITUTIONAL LAW).
7 K S Hemrajsinhji Pravinsinhji v Inspector General of Police, Ahmedabad AIR 1961 Guj 63 [LNIND 1960 GUJ 100] [LNIND
1960 GUJ 100] [LNIND 1960 GUJ 100].
v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]; Nand Kishore
Prasad v State of Bihar AIR 1978 SC 1277 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore
Prasad v State of Bihar (1978) 3 SCC 366 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore
Prasad v State of Bihar [1978] 3 SCR 708 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135].

PROCEEDINGS/A. GENERALLY/[005.119] Inapplicability of rules of evidence
[005.119] Inapplicability of rules of evidence Strict rules of evidence, as laid down in the Indian Evidence
Act 1872, do not apply to disciplinary inquiries1. Ordinarily, a confession or admission of guilt made by a
person, accused of an offence before a police officer, is not admissible2. However, as rules of evidence to
not apply to departmental enquiries, a confession that is relevant and voluntary can be admitted in a
departmental inquiry3.
1 Union of India v A Nagamalleshwar Rao AIR 1998 SC 111 [LNIND 1997 SC 1447] [LNIND 1997 SC 1447] [LNIND 1997 SC
1447], Union of India v A Nagamalleshwar Rao (1998) 1 SCC 111 [LNIND 1997 SC 1390] [LNIND 1997 SC 1390] [LNIND 1997
SC 1390], Union of India v A Nagamalleshwar Rao (1998) 7 Scale 700; State Bank of Bikaner and Jaipur v Srinath Gupta AIR
1997 SC 243, State Bank of Bikaner and Jaipur v Srinath Gupta (1997) 6 SCC 486, State Bank of Bikaner and Jaipur v Srinath
Gupta (1996) 9 JT 612; State of Assam v Mahendra Kumar Das AIR 1970 SC 1255 [LNIND 1970 SC 153] [LNIND 1970 SC
153] [LNIND 1970 SC 153], State of Assam v Mahendra Kumar Das (1970) 1 SCC 709 [LNIND 1970 SC 153] [LNIND 1970 SC
153] [LNIND 1970 SC 153], State of Assam v Mahendra Kumar Das (1970) 2 SCJ 659 [LNIND 1970 SC 153] [LNIND 1970 SC
153] [LNIND 1970 SC 153]; State of Mysore v Shivbasappa Shivappa Makapur AIR 1963 SC 375 [LNIND 1962 SC 214]
[LNIND 1962 SC 214] [LNIND 1962 SC 214], State of Mysore v Shivbasappa Shivappa Makapur [1963] 2 SCR 943 [LNIND
1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214], State of Mysore v Shivbasappa Shivappa Makapur (1963) 2 SCJ
104 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214] (tribunals are not courts and thus not bound to follow
procedures for trial of actions in courts nor are they bound by strict rules of evidence).
2 See the Indian Evidence Act 1872 ss 25 and 26 (see EVIDENCE[145.087]).
3 Kuldip Singh v State of Punjab AIR 1997 SC 79 [LNIND 1996 SC 1467] [LNIND 1996 SC 1467] [LNIND 1996 SC 1467],
Kuldip Singh v State of Punjab (1997) 10 SCC 659, Kuldip Singh v State of Punjab (1996) 3 SCJ 289.
169 169
Page

PROCEEDINGS/A. GENERALLY/[005.120] Legal aid in proceedings
[005.120] Legal aid in proceedings A general and absolute right to have legal representation at the inquiry
is not recognised. When there is no oral evidence to be recorded and no legal complexity in a case, absence
of a lawyer does not account to denial of natural justice1. However, there may be circumstances when legal
representation may be permitted as a part of 'reasonable opportunity' to defend himself. For instance, when
the case is complicated, long and a large number of witnesses have to be examined; legal representation
may be allowed2.
When a trained prosecutor is handling the case against a delinquent officer, the delinquent officer must also
be allowed to engage a legal practitioner to defend himself so that the scales are not weighed against him3.
When however, the employer appoints a legally trained person as the presenting officer, the delinquent
employee must also be allowed to take the assistance of a lawyer4.
The presenting officer was a person with legal attainments and experience, then the refusal of the service of
a lawyer to the concerned employee, who had no legal background, would result in denial of natural justice5.
A government servant may present his case with the assistance of any government servant approved by the
disciplinary authority or with its permission, through a lawyer. This is a mandatory rule. Denial of assistance
of a government servant to an accused officer, at the inquiry against him, amounts to denial of reasonable
opportunity to defend himself6.
When in a disciplinary proceeding, the department is represented by a presenting officer, the delinquent
officer must be informed that he has a right to take the help of another government servant from his
department to defend him7.
The inquiry officers as well as the disciplinary authority must give reasons for their decisions8.
Krishna Chandra Tandon v Union of India (1974) Lab IC 1010.
2 T Muniswamy v State of Mysore AIR 1964 Mys 250, T Muniswamy v State of Mysore (1964) 2 Lab LJ 694; Nripendra Nath
Bagchi v Chief Secretary, Government of West Bengal AIR 1961 Cal 1 [LNIND 1960 CAL 125] [LNIND 1960 CAL 125] [LNIND
1960 CAL 125], Nripendra Nath Bagchi v Chief Secretary, Government of West Bengal (1961) 65 Cal WN 361, Nripendra Nath
Bagchi v Chief Secretary, Government of West Bengal (1961) 2 Lab LJ 312 [LNIND 1960 CAL 125] [LNIND 1960 CAL 125]
[LNIND 1960 CAL 125]; K Subbarao v State of Hyderabad (now Andhra Pradesh) AIR 1957 AP 414, K Subbarao v State of
Hyderabad (now Andhra Pradesh) (1957) Andh LT 155, K Subbarao v State of Hyderabad (now Andhra Pradesh) (1957) 1
Andh WR 172; see also R Jeevaratnam v State of Madras AIR 1966 SC 951 [LNIND 1965 SC 259] [LNIND 1965 SC 259]
[LNIND 1965 SC 259], R Jeevaratnam v State of Madras [1966] 2 SCR 404, R Jeevaratnam v State of Madras (1966) 1 SCA
903. As to the meaning of 'reasonable opportunity' see [005.118].
3 C L Subramanian v Collector of Customs, Cochin AIR 1972 SC 2178, C L Subramanian v Collector of Customs, Cochin
(1972) 3 SCC 542, C L Subramanian v Collector of Customs, Cochin [1972] 3 SCR 485.
4 Board of Trustees of the Port of Bombay v Dilipkumar Raghavendranath Nadkarni AIR 1983 SC 109 [LNIND 1982 SC 167]
[LNIND 1982 SC 167] [LNIND 1982 SC 167], Board of Trustees of the Port of Bombay v Dilipkumar Raghavendranath Nadkarni
(1983) 1 SCC 124 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167], Board of Trustees of the Port of Bombay
v Dilipkumar Raghavendranath Nadkarni [1983] 1 SCR 828 [LNIND 1982 SC 167] [LNIND 1982 SC 167] [LNIND 1982 SC 167].
5 J K Aggarwal v Haryana Seeds Development Corpn Ltd AIR 1991 SC 1221, J K Aggarwal v Haryana Seeds Development
Corpn Ltd (1991) 2 SCC 442, J K Aggarwal v Haryana Seeds Development Corpn Ltd [1990] Supp 3 SCR 1213.
6 See the Central Civil Service (Classification, Control and Appeal) Rules 1967 r 15(5).
v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] (a disciplinary
inquiry conducted against an employee was quashed on the ground that a reasonable opportunity to defend himself was denied
170 170
Page
to him; there were many flaws in the procedure followed in the inquiry for instance no documents were shown to the employee;
cross-examination of the witnesses testifying against him was not permitted); Bhagat Ram v State of Himachal Pradesh AIR
1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983)
2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 2
Lab LJ 1 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35] (when, at the inquiry against a class-Iv employee, the
government is represented by a presenting officer and not the employee and he was not informed of his right to seek assistance
of another government servant in the department to represent him, the Supreme Court held the inquiry vitiated and the order of
dismissal based on such an inquiry was quashed).
8 AL Kalra v Project and Equipment Corpn of India Ltd AIR 1984 SC 1361 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND
1984 SC 136], AL Kalra v Project and Equipment Corpn of India Ltd (1984) 3 SCC 402, AL Kalra v Project and Equipment
Corpn of India Ltd (1984) Lab IC 961 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136]. As to inquiry officers
see [005.123].

PROCEEDINGS/A. GENERALLY/[005.121] Information of charges
[005.121] Information of charges Where disciplinary proceedings are initiated by issuing a charge sheet,
actual service of the charge sheet on the person concerned is essential, as the concerned person is required
to submit his reply thereto1.
The delinquent officer must be informed of the charges against him2. The charges must be clear, precise and
accurate. If a charge is vague, the inquiry may be vitiated. For instance, a vague accusation that a
government servant accepts bribes is not sufficient, he must be given particulars of specific acts of accepting
bribes3. Along with the charges, the government servant concerned must also be informed of the evidence
by which those charges are sought to be substantiated against him4. However, only relevant documents and
not each and every document asked for, by an employee must be supplied to him5. The inquiry is vitiated if
the non-supply of documents has prejudiced the case of the concerned employee. However, if copies of
such documents are not supplied to him in spite of his request and an opportunity is not given to him to
inspect such documents, then there is violation of natural justice6.
It is the duty of the employee under inquiry to point out how each and every document was relevant to the
charges or to the inquiry being held against him and whether and how their non-supply has prejudiced his
case7. The decision of the question will depend upon the facts and circumstances of each case8.
Prior to the framing of charges, government may hold a confidential investigation to ascertain what charges
must be enquired into. The report of this investigation need not be given to the servant, unless it forms part
of the evidence at the formal inquiry, held into the charges framed against him and is relied on by the inquiry
officer at any stage9.
If in the preliminary inquiry, witnesses are examined in the absence of the person charged and on the basis
of such evidence, charges are framed later, it becomes mandatory that copies of these statements be
supplied to him. Failure to supply the same might vitiate the inquiry10.
1 Union of India v Dinanath Shantaram Karekar AIR 1998 SC 2722 [LNIND 1998 SC 675] [LNIND 1998 SC 675] [LNIND 1998
SC 675], Union of India v Dinanath Shantaram Karekar (1998) 7 SCC 569 [LNIND 1998 SC 675] [LNIND 1998 SC 675] [LNIND
1998 SC 675], Union of India v Dinanath Shantaram Karekar (1998) 6 JT 1 [LNIND 1998 SC 675] [LNIND 1998 SC 675] [LNIND
1998 SC 675].
2 See the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW).
3 State of Tamil Nadu v K V Perumal AIR 1996 SC 2474 [LNIND 1996 SC 1064] [LNIND 1996 SC 1064] [LNIND 1996 SC
1064], State of Tamil Nadu v K V Perumal (1996) 5 SCC 474 [LNIND 1996 SC 1064] [LNIND 1996 SC 1064] [LNIND 1996 SC
1064], State of Tamil Nadu v K V Perumal (1996) 6 JT 604; Surath Chandra Chakravarty v State of West Bengal AIR 1971 SC
752 [LNIND 1970 SC 480] [LNIND 1970 SC 480] [LNIND 1970 SC 480], Surath Chandra Chakravarty v State of West Bengal
171 171
Page
(1970) 3 SCC 548 [LNIND 1970 SC 480] [LNIND 1970 SC 480] [LNIND 1970 SC 480], Surath Chandra Chakravarty v State of
West Bengal [1971] 3 SCR 1 [LNIND 1970 SC 480] [LNIND 1970 SC 480] [LNIND 1970 SC 480].
Union of India (1958) SCJ 497 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138]; Tribhuwan Nath v State of
Bihar AIR 1960 Pat 116; Altafur Rahman Fazlur Rahman v Collector, Central Excise, Allahabad AIR 1960 All 551 [LNIND 1960
ALL 9] [LNIND 1960 ALL 9] [LNIND 1960 ALL 9], Altafur Rahman Fazlur Rahman v Collector, Central Excise, Allahabad (1960)
All LJ 288, Altafur Rahman Fazlur Rahman v Collector, Central Excise, Allahabad (1960) 2 Lab LJ 146 (a reasonable
opportunity to show cause does not necessarily include the right of personal hearing at every stage); Ram Parkash Rakhra v
State of Punjab AIR 1960 Punj 278, Ram Parkash Rakhra v State of Punjab (1959) 61 Punj LR 905; Saghir Ahmad Mohini
Hazir Ahmad v Uttar Pradesh AIR 1960 All 270 [LNIND 1959 ALL 57] [LNIND 1959 ALL 57] [LNIND 1959 ALL 57].
5 See note 3 above and 8 below.
6 Chandrama Tewari v Union of India AIR 1988 SC 117 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC 772],
Chandrama Tewari v Union of India (1987) Supp SCC 518 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC 772],
Chandrama Tewari v Union of India (1988) 1 SCJ 228 [LNIND 1987 SC 801] [LNIND 1987 SC 801] [LNIND 1987 SC 801];
Kashinath Dikshita v Union of India (1986) Lab IC 1939; State of Uttar Pradesh v Mohd Sharif (decd) through LRS AIR 1982
SC 937 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13], State of Uttar Pradesh v Mohd Sharif (decd) through
LRS (1982) 2 SCC 376 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13], State of Uttar Pradesh v Mohd Sharif
(decd) through LRS (1982) 1 SCJ 223 [LNIND 1982 SC 13] [LNIND 1982 SC 13] [LNIND 1982 SC 13]; Government of Tamil
Nadu v KN Ratnavelu AIR 1998 SC 3037, Government of Tamil Nadu v KN Ratnavelu (1998) 3 SCC 452, Government of Tamil
Nadu v KN Ratnavelu (1998) 4 JT 325.
7 Secretary to Government v AC J Britto AIR 1997 SC 1393 [LNIND 1996 SC 2179] [LNIND 1996 SC 2179] [LNIND 1996 SC
2179], Secretary to Government v AC J Britto (1997) 3 SCC 387 [LNIND 1996 SC 2179] [LNIND 1996 SC 2179] [LNIND 1996
SC 2179], Secretary to Government v AC J Britto (1997) 1 Scale 21 [LNIND 1996 SC 2179] [LNIND 1996 SC 2179] [LNIND
1996 SC 2179]; State of Tamil Nadu v K V Perumal AIR 1996 SC 2474 [LNIND 1996 SC 1064] [LNIND 1996 SC 1064] [LNIND
1996 SC 1064], State of Tamil Nadu v K V Perumal (1996) 5 SCC 474 [LNIND 1996 SC 1064] [LNIND 1996 SC 1064] [LNIND
1996 SC 1064], State of Tamil Nadu v K V Perumal (1996) 6 JT 604.
8 State of Tamil Nadu v K V Perumal AIR 1996 SC 2474 [LNIND 1996 SC 1064] [LNIND 1996 SC 1064] [LNIND 1996 SC
1064], State of Tamil Nadu v K V Perumal (1996) 5 SCC 474 [LNIND 1996 SC 1064] [LNIND 1996 SC 1064] [LNIND 1996 SC
1064], State of Tamil Nadu v K V Perumal (1996) 6 JT 604 (the disciplinary authority is not bound to supply each and every
document that may be asked for by the delinquent employee; the duty is to supply, only relevant documents); Chandrama
Tewari v Union of India AIR 1988 SC 117 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC 772], Chandrama
Tewari v Union of India (1987) Supp SCC 518 [LNIND 1987 SC 772] [LNIND 1987 SC 772] [LNIND 1987 SC 772], Chandrama
Tewari v Union of India (1988) 1 SCJ 228 [LNIND 1987 SC 801] [LNIND 1987 SC 801] [LNIND 1987 SC 801].
Krishna Chandra Tandon v Union of India (1974) Lab IC 1010.
10 Government of Tamil Nadu v K N Ratnavelu AIR 1998 SC 3037, Government of Tamil Nadu v K N Ratnavelu (1998) 3 SCC
452, Government of Tamil Nadu v K N Ratnavelu (1998) 4 JT 325.

PROCEEDINGS/A. GENERALLY/[005.122] Formal inquiry
[005.122] Formal inquiry In a disciplinary proceeding, once the charges have been intimated to the servant
concerned and his formal reply thereto has been received, the disciplinary authority has to decide whether a
further inquiry is called for. If after deliberation and due consideration, the disciplinary authority comes to an
affirmative decision, a formal inquiry must be held into the charges framed1.
If personal hearing, which is a part of reasonable opportunity2, is demanded by the delinquent servant, it
cannot be refused3. However, if the delinquent fails to appear before the inquiry officer in spite of several
opportunities being given to him, the inquiry officer can proceed ex parte4.
At the formal inquiry, the employee charged must be provided with an opportunity to cross-examine the
172 172
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witnesses produced against him5. All evidence must be given in his presence. If the delinquent is found guilty
on the basis of evidence recorded behind his back, it tantamounts to violation of the principles of natural
justice6. However, statements of the witnesses taken at the preliminary inquiry can be used at the time of the
formal inquiry. Where a statement previously made by a witness, either during the course of preliminary
inquiry or investigation, is proposed to be brought on record in the departmental proceedings, a copy of that
statement must first be supplied to the delinquent who must thereafter be given an opportunity to
cross-examine that witness7. It is not necessary for making each witness repeat word for word the statement
made by him earlier. However, a mere synopsis of the statements given by the witness earlier, would not be
adequate8.
Any material cannot be relied on against the accused employee, without giving him an opportunity to explain
it9.
1 State of Punjab v VK Khanna [2001] 4 LRI 400, State of Punjab v VK Khanna AIR 2001 SC 343 [LNIND 2000 SC 1707]
[LNIND 2000 SC 1707] [LNIND 2000 SC 1707], State of Punjab v VK Khanna (2001) 2 SCC 330 [LNIND 2000 SC 1707]
[LNIND 2000 SC 1707] [LNIND 2000 SC 1707].
2 As to the meaning of 'reasonable opportunity' see [005.118].
3 C S Sharma v State of Uttar Pradesh AIR 1961 All 45 [LNIND 1960 ALL 89] [LNIND 1960 ALL 89] [LNIND 1960 ALL 89], C S
Sharma v State of Uttar Pradesh (1960) ILR 2 All 249; Nripendra Nath Bagchi v Chief Secretary, Government of West Bengal
AIR 1961 Cal 1 [LNIND 1960 CAL 125] [LNIND 1960 CAL 125] [LNIND 1960 CAL 125], Nripendra Nath Bagchi v Chief
Secretary, Government of West Bengal (1961) 65 Cal WN 361, Nripendra Nath Bagchi v Chief Secretary, Government of West
Bengal (1961) 2 Lab LJ 312 [LNIND 1960 CAL 125] [LNIND 1960 CAL 125] [LNIND 1960 CAL 125]; State of Punjab v Karam
Chand AIR 1959 Punj 402, State of Punjab v Karam Chand (1958) ILR Punj 1879, State of Punjab v Karam Chand (1959) 61
Punj LR 167.
4 State of Tamil Nadu v M Natarajan AIR 1997 SC 3120 [LNIND 1997 SC 864] [LNIND 1997 SC 864] [LNIND 1997 SC 864],
State of Tamil Nadu v M Natarajan (1997) 6 SCC 415 [LNIND 1997 SC 864] [LNIND 1997 SC 864] [LNIND 1997 SC 864], State
of Tamil Nadu v M Natarajan (1997) 6 JT 190 (delinquent officer not participating in disciplinary inquiry despite several
opportunities--inquiry cannot be said to be vitiated); Deokinandan Sharma v Union of India AIR 2001 SC 1767, Deokinandan
Sharma v Union of India (2001) 5 SCC 340, Deokinandan Sharma v Union of India (2001) 1 LLJ 1589 (delinquent officer failed
to appear for examination of witnesses even on adjourned dates).
5 Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35],
Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35],
Bhagat Ram v State of Himachal Pradesh (1983) 2 Lab LJ 1 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35];
State of Bombay(now Maharashtra) v Nurul Latif Khan AIR 1966 SC 269 [LNIND 1965 SC 48] [LNIND 1965 SC 48] [LNIND
1965 SC 48], State of Bombay(now Maharashtra) v Nurul Latif Khan [1965] 3 SCR 135 [LNIND 1965 SC 48] [LNIND 1965 SC
48] [LNIND 1965 SC 48], State of Bombay(now Maharashtra) v Nurul Latif Khan (1966) 2 SCJ 184 [LNIND 1965 SC 48] [LNIND
1965 SC 48] [LNIND 1965 SC 48]; State of Madhya Pradesh v Chintaman Sadashiva Waishampayan AIR 1961 SC 1623,
State of Madhya Pradesh v Chintaman Sadashiva Waishampayan (1961) Jab LJ 702; P Joseph John v State of
Travancore-Cochin AIR 1955 SC 160 [LNIND 1954 SC 163] [LNIND 1954 SC 163] [LNIND 1954 SC 163], P Joseph John v
State of Travancore-Cochin [1955] SCR 1011 [LNIND 1954 SC 163] [LNIND 1954 SC 163] [LNIND 1954 SC 163], P Joseph
John v State of Travancore-Cochin (1955) SCJ 221 [LNIND 1954 SC 163] [LNIND 1954 SC 163] [LNIND 1954 SC 163]. As to
cross-examination as an essential part of the rule of audi alteram partem see [005.062] and following.
6 Kesoram Cotton Mills Ltd v Gangadhar AIR 1964 SC 708 [LNIND 1963 SC 95] [LNIND 1963 SC 95] [LNIND 1963 SC 95],
Kesoram Cotton Mills Ltd v Gangadhar [1964] 2 SCR 809 [LNIND 1963 SC 95] [LNIND 1963 SC 95] [LNIND 1963 SC 95],
Kesoram Cotton Mills Ltd v Gangadhar (1963) 2 Lab LJ 371. As to the principles of natural justice see [005.054] and following.
7 State Bank of Bikaner and Jaipur v Srinath Gupta AIR 1997 SC 243, State Bank of Bikaner and Jaipur v Srinath Gupta
(1997) 6 SCC 486, State Bank of Bikaner and Jaipur v Srinath Gupta (1996) 9 JT 612; State of Punjab v Bhagat Ram AIR 1974
SC 2335 [LNIND 1974 SC 308] [LNIND 1974 SC 308] [LNIND 1974 SC 308], State of Punjab v Bhagat Ram (1975) 1 SCC 155
[LNIND 1974 SC 308] [LNIND 1974 SC 308] [LNIND 1974 SC 308], State of Punjab v Bhagat Ram [1975] 2 SCR 370 [LNIND
1974 SC 308] [LNIND 1974 SC 308] [LNIND 1974 SC 308]; State of Uttar Pradesh v Om Prakash Gupta AIR 1970 SC 679,
State of Uttar Pradesh v Om Prakash Gupta [1969] 3 SCR 775, State of Uttar Pradesh v Om Prakash Gupta (1970) Lab IC 568;
State of Mysore v Shivbasappa Shivappa Makapur AIR 1963 SC 375 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962
SC 214], State of Mysore v Shivbasappa Shivappa Makapur [1963] 2 SCR 943 [LNIND 1962 SC 214] [LNIND 1962 SC 214]
[LNIND 1962 SC 214], State of Mysore v Shivbasappa Shivappa Makapur (1963) 2 SCJ 104 [LNIND 1962 SC 214] [LNIND
1962 SC 214] [LNIND 1962 SC 214].
8 Ie because it would not satisfy the requirements of the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL
LAW). See State of Punjab v Bhagat Ram AIR 1974 SC 2335 [LNIND 1974 SC 308] [LNIND 1974 SC 308] [LNIND 1974 SC
308], State of Punjab v Bhagat Ram (1975) 1 SCC 155 [LNIND 1974 SC 308] [LNIND 1974 SC 308] [LNIND 1974 SC 308],
173 173
Page
State of Punjab v Bhagat Ram [1975] 2 SCR 370 [LNIND 1974 SC 308] [LNIND 1974 SC 308] [LNIND 1974 SC 308].
9 State of Punjab v Chuni Lal AIR 1970 SC 2086 [LNIND 1970 SC 50] [LNIND 1970 SC 50] [LNIND 1970 SC 50], State of
Punjab v Chuni Lal (1970) 1 SCC 479 [LNIND 1970 SC 50] [LNIND 1970 SC 50] [LNIND 1970 SC 50], State of Punjab v Chuni
Lal [1970] 3 SCR 694 [LNIND 1970 SC 50] [LNIND 1970 SC 50] [LNIND 1970 SC 50] (a sub-inspector of police was dismissed
from service; holding the dismissal order invalid, the Supreme Court pointed out that the officers making confidential reports
against him were not summoned for examination at the inquiry and this deprived him of the opportunity of cross-examining, the
concerned persons; that thus, reasonable opportunity of defending himself was denied to him).

PROCEEDINGS/B. INQUIRY OFFICER/[005.123] Appointment of inquiry officer
[005.123] Appointment of inquiry officer There is no bar in the disciplinary authority deputing some
responsible and competent official to inquire and report into the conduct of the servant against whom action
is proposed to be taken. It is open to the disciplinary authority to hold the inquiry itself or appoint an inquiry
officer to conduct the inquiry into the charges against an employee. However, the disciplinary authority
cannot delegate the exercise of power of punishment, except when the law specifically so provides1.
The report of the inquiry officer is not final or conclusive till the disciplinary authority takes the final decision
thereon. The inquiry is not complete till the disciplinary authority comes to its own conclusions whether the
charges have been proved or not. Even when the inquiry officer holds that the charges against the
concerned employee have not been established, the disciplinary authority may disagree with these findings
and hold that the charges were valid2.
1 Pradyat Kumar Bose v The Hon'ble Chief Justice of the Calcutta High Court AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND
1955 SC 120] [LNIND 1955 SC 120], Pradyat Kumar Bose v The Hon'ble Chief Justice of the Calcutta High Court (1956) SCC
402, Pradyat Kumar Bose v The Hon'ble Chief Justice of the Calcutta High Court [1955] 2 SCR 1331 [LNIND 1955 SC 120]
[LNIND 1955 SC 120] [LNIND 1955 SC 120]. See also Ramesh Chandra Verma v R D Verma AIR 1958 All 532 [LNIND 1957
ALL 232] [LNIND 1957 ALL 232] [LNIND 1957 ALL 232](grounds on which reasonable opportunity had been given to the
petitioner); S Neelakanta Iyer v State of Kerala AIR 1960 Ker 279 [LNIND 1960 KER 24] [LNIND 1960 KER 24] [LNIND 1960
KER 24], S Neelakanta Iyer v State of Kerala (1960) Ker LJ 239, S Neelakanta Iyer v State of Kerala (1960) Ker LT 222 [LNIND
1960 KER 24] [LNIND 1960 KER 24] [LNIND 1960 KER 24] (the authority designated by the govt must find the civil servant to
be punishable, before proceeding to impose the punishment); Sreedharaiah v District Superintendent of Police, Anantapur AIR
1960 AP 473 [LNIND 1959 AP 278] [LNIND 1959 AP 278] [LNIND 1959 AP 278], Sreedharaiah v District Superintendent of
Police, Anantapur (1960) 1 Andh WR 408, Sreedharaiah v District Superintendent of Police, Anantapur (1960) 2 Lab LJ 156.
2 Yoginath D Bagde v State of Maharashtra [1999] 4 LRI 767, Yoginath D Bagde v State of Maharashtra AIR 1999 SC 3734
[LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], Yoginath D Bagde v State of Maharashtra (1999) 7 SCC
739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827] (disciplinary authority disagreeing with findings of
inquiry and holding delinquent guilty; however, order held vitiated as no opportunity of hearing given to delinquent).

PROCEEDINGS/B. INQUIRY OFFICER/[005.124] Duty of inquiry officer
[005.124] Duty of inquiry officer The inquiry officer, who has been appointed to inquire into the conduct of
the delinquent, must base his findings on some evidence. The dismissal order may be quashed, if it is based
on findings recorded by the inquiry officer, which are not supported by evidence and are thus, wholly
perverse1. All materials that are logically probative for a prudent mind are permissible2. The inquiry officer
must not make private inquiries behind the back of the employee. If it is done, the evidence against him must
be disclosed to him. An inquiry is vitiated if the findings are based on secret information that the accused
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officer had no opportunity of meeting3. Therefore, the inquiry officer can refer to the past conduct of the
accused servant only after giving him an opportunity to explain it4.
The accused servant must be given an opportunity to give his testimony. He must have an opportunity of
adducing all relevant evidence on which he relies and examines witnesses in his defence5.
The inquiry officer must attempt to secure the attendance of defence witnesses. He cannot take shelter
behind the plea that he has no legal authority to compel their attendance. Refusal on his part to summon
witnesses may vitiate the inquiry6. However, the right of the servant charged, to cross-examine witnesses
and produce his own witnesses, can be controlled by the inquiry officer so as to see that cross-examination
is not done in an irrelevant manner or that irrelevant evidence is not given. The inquiry officer has to ensure
that the inquiry proceedings are not unduly or deliberately prolonged7.
1 S S Moghe v Union of India AIR 1981 SC 1495 [LNIND 1981 SC 283] [LNIND 1981 SC 283] [LNIND 1981 SC 283], S S
Moghe v Union of India (1981) 3 SCC 271 [LNIND 1981 SC 283] [LNIND 1981 SC 283] [LNIND 1981 SC 283], S S Moghe v
Union of India (1981) 2 Lab LJ 198. As to inquiry officers see [005.123].
2 State of Haryana v Rattan Singh AIR 1977 SC 1512, State of Haryana v Rattan Singh (1977) 2 SCC 491, State of Haryana v
Rattan Singh (1977) 2 SCJ 140; KL Shinde v State of Mysore AIR 1976 SC 1080 [LNIND 1976 SC 140] [LNIND 1976 SC 140]
[LNIND 1976 SC 140], KL Shinde v State of Mysore (1976) 3 SCC 76 [LNIND 1976 SC 140] [LNIND 1976 SC 140] [LNIND
1976 SC 140], KL Shinde v State of Mysore [1976] 3 SCR 913 [LNIND 1976 SC 140] [LNIND 1976 SC 140] [LNIND 1976 SC
140]; Union of India v TR Varma AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of
India v TR Varma [1958] SCR 499 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of India v TR Varma
(1958) SCJ 142.
3 State of Andhra Pradesh v S N Nizamuddin Ali Khan AIR 1976 SC 1964 [LNIND 1976 SC 252] [LNIND 1976 SC 252] [LNIND
1976 SC 252], State of Andhra Pradesh v S N Nizamuddin Ali Khan (1976) 4 SCC 745 [LNIND 1976 SC 252] [LNIND 1976 SC
252] [LNIND 1976 SC 252], State of Andhra Pradesh v S N Nizamuddin Ali Khan (1976) Lab IC 1213 [LNIND 1976 SC 252]
[LNIND 1976 SC 252] [LNIND 1976 SC 252]; Krishna Chandra Tandon v Union of India AIR 1974 SC 1589, Krishna Chandra
Tandon v Union of India (1974) 4 SCC 374, Krishna Chandra Tandon v Union of India (1974) Lab IC 1010; State of Assam v
Mahendra Kumar Das AIR 1970 SC 1255 [LNIND 1970 SC 153] [LNIND 1970 SC 153] [LNIND 1970 SC 153], State of Assam v
Mahendra Kumar Das (1970) 1 SCC 709 [LNIND 1970 SC 153] [LNIND 1970 SC 153] [LNIND 1970 SC 153], State of Assam v
Mahendra Kumar Das (1970) 2 SCJ 659 [LNIND 1970 SC 153] [LNIND 1970 SC 153] [LNIND 1970 SC 153]; State of Mysore v
Shivbasappa Shivappa Makapur AIR 1963 SC 375 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214], State of
Mysore v Shivbasappa Shivappa Makapur [1963] 2 SCR 943 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC
214], State of Mysore v Shivbasappa Shivappa Makapur (1963) 2 SCJ 104 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND
1962 SC 214].
4 S Nanjudeshwar, Prsecuting Sub-Inspector of Police, Sagar v State of Mysore AIR 1960 Mys 159; Damodar Sinha v Land
Reforms Comr, Uttar Pradesh AIR 1959 All 437 [LNIND 1958 ALL 232] [LNIND 1958 ALL 232] [LNIND 1958 ALL 232].
Union of India (1958) SCJ 497 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138].
6 Mohammad Hanif Ahsan Ullah Khan v Deputy Superintendent of Police, Mirzapur AIR 1957 All 634 [LNIND 1957 ALL 108]
[LNIND 1957 ALL 108] [LNIND 1957 ALL 108]; G Valayya Pantulu v Government of Andhra (now Andhra Pradesh) AIR 1958
AP 240.
7 State of Bombay (now Maharashtra) v Nurul Latif Khan AIR 1966 SC 269 [LNIND 1965 SC 48] [LNIND 1965 SC 48] [LNIND
1965 SC 48], State of Bombay (now Maharashtra) v Nurul Latif Khan [1965] 3 SCR 135 [LNIND 1965 SC 48] [LNIND 1965 SC
48] [LNIND 1965 SC 48], State of Bombay (now Maharashtra) v Nurul Latif Khan (1966) 2 SCJ 184 [LNIND 1965 SC 48]
[LNIND 1965 SC 48] [LNIND 1965 SC 48].

PROCEEDINGS/B. INQUIRY OFFICER/[005.125] Delegation by inquiry officer, whether permissible
[005.125] Delegation by inquiry officer, whether permissible In disciplinary proceedings, inquiry would be
175 175
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improper if the inquiry officer delegates the task of hearing witnesses to someone else and then decides the
case upon the mere record of evidence1.
In case an inquiry is held by someone other than the authority, the servant can order a re-inquiry or a fresh
inquiry superseding the earlier inquiry2.
1 Amulya Kumar Sikdar v LM Bakshi AIR 1958 Cal 470 [LNIND 1958 CAL 89] [LNIND 1958 CAL 89] [LNIND 1958 CAL 89],
Amulya Kumar Sikdar v LM Bakshi (1958) 62 Cal WN 690. As to inquiry officers see [005.123].
2 See Dwarkachand v State of Rajasthan AIR 1958 Raj 38 [LNIND 1957 RAJ 198] [LNIND 1957 RAJ 198] [LNIND 1957 RAJ
198], Dwarkachand v State of Rajasthan (1957) ILR 7 Raj 1029, Dwarkachand v State of Rajasthan (1957) Raj LW 587;
Veervunni Mooppan v State AIR 1960 Ker 294 [LNIND 1960 KER 65] [LNIND 1960 KER 65] [LNIND 1960 KER 65].

PROCEEDINGS/B. INQUIRY OFFICER/[005.126] Inquiry officer's findings, whether binding
[005.126] Inquiry officer's findings, whether binding In a disciplinary inquiry, the disciplinary authority is
the sole judge of the facts. The inquiry officer's findings can assist but do not bind the punishing authority.
The disciplinary authority is not bound by the findings reached by the inquiry officer and has to apply its own
mind as regards the guilt of the accused servant and the punishment to be meted out to him1.
The government may agree or differ, either wholly or partially, from the conclusions recorded in the report2.
Neither the findings of the inquiry officer nor his recommendations are binding on the punishing authority3.
v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]. As to inquiry
officers see [005.123].
Krishna Chandra Tandon v Union of India (1974) Lab IC 1010; Railway Board, New Delhi v Niranjan Singh AIR 1969 SC 966
[LNIND 1969 SC 39] [LNIND 1969 SC 39] [LNIND 1969 SC 39], Railway Board, New Delhi v Niranjan Singh (1969) 1 SCC 502
[LNIND 1969 SC 39] [LNIND 1969 SC 39] [LNIND 1969 SC 39], Railway Board, New Delhi v Niranjan Singh [1969] 3 SCR 548
[LNIND 1969 SC 39] [LNIND 1969 SC 39] [LNIND 1969 SC 39]; Union of India v H C Goel AIR 1964 SC 364 [LNIND 1963 SC
208] [LNIND 1963 SC 208] [LNIND 1963 SC 208], Union of India v H C Goel [1964] 4 SCR 718 [LNIND 1963 SC 208] [LNIND
1963 SC 208] [LNIND 1963 SC 208], Union of India v H C Goel (1964) 1 LLJ 38 [LNIND 1963 SC 208] [LNIND 1963 SC 208]
[LNIND 1963 SC 208].
3 AN D 'Silva v Union of India AIR 1962 SC 1130 [LNIND 1961 SC 380] [LNIND 1961 SC 380] [LNIND 1961 SC 380], AN D
'Silva v Union of India [1962] Supp 1 SCR 968, AN D 'Silva v Union of India (1962) 2 SCJ 126 [LNIND 1961 SC 380] [LNIND
1961 SC 380] [LNIND 1961 SC 380] (the findings of the inquiry officer are only his opinion on the materials but such findings
are not binding on the disciplinary authority as the decision making authority is the punishing authority and therefore, that
authority can come to its own conclusion, bearing in mind the views expressed by the inquiry officer).

PROCEEDINGS/B. INQUIRY OFFICER/[005.127] Materiality of evidence
[005.127] Materiality of evidence In a disciplinary inquiry, if there is no evidence to sustain the charges
framed against the delinquent officer, he cannot be held guilty as, in that event, the finding recorded by the
inquiry officer would be perverse1.
176 176
Page
Where the findings of misconduct are based on no legal evidence and the conclusion is one to which no
reasonable man could come, the findings must be rejected as perverse. However, if there is some evidence
on record which is acceptable and which could be relied upon, the decision would not be regarded as
perverse and the court would not interfere with the findings. Where a quasi--judicial tribunal records findings
based on no legal evidence and the findings are ipse dixit or based on conjectures and surmises, the inquiry
suffers from the additional infirmity of non-application of mind and stands vitiated. The court may interfere in
such cases2.
Whether the disciplinary proceedings are to be terminated on the ground of delay depends on the facts and
circumstances of each case. The court has to balance all relevant factors to determine whether in the
interest of clean and honest administration, the disciplinary proceedings must be terminated because of long
delay3.
1 Kuldeep Singh v Comr of Police AIR 1999 SC 677 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109],
Kuldeep Singh v Comr of Police (1999) 2 SCC 10 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109],
Kuldeep Singh v Comr of Police (1998) 8 JT 603; SS Moghe v Union of India AIR 1981 SC 1495 [LNIND 1981 SC 283] [LNIND
1981 SC 283] [LNIND 1981 SC 283], SS Moghe v Union of India (1981) 3 SCC 271 [LNIND 1981 SC 283] [LNIND 1981 SC
283] [LNIND 1981 SC 283], SS Moghe v Union of India (1981) 2 Lab LJ 198 (an order of dismissal was set aside because the
finding recorded by the inquiry officer were not supported by evidence and were wholly perverse); Rajinder Kumar Kindra v
Delhi Administration through Secretary (Labour) AIR 1984 SC 1805 [LNIND 1984 SC 267] [LNIND 1984 SC 267] [LNIND 1984
SC 267], Rajinder Kumar Kindra v Delhi Administration through Secretary (Labour) (1984) 4 SCC 635 [LNIND 1984 SC 267]
[LNIND 1984 SC 267] [LNIND 1984 SC 267], Rajinder Kumar Kindra v Delhi Administration through Secretary (Labour) [1985] 1
SCR 866 [LNIND 1984 SC 267] [LNIND 1984 SC 267] [LNIND 1984 SC 267]; Nand Kishore Prasad v State of Bihar AIR 1978
SC 1277 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore Prasad v State of Bihar (1978) 3
SCC 366 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore Prasad v State of Bihar [1978] 3
SCR 708 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135]; State of Mysore v Shivbasappa Shivappa
Makapur AIR 1963 SC 375 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214], State of Mysore v Shivbasappa
Shivappa Makapur [1963] 2 SCR 943 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214], State of Mysore v
Shivbasappa Shivappa Makapur (1963) 2 SCJ 104 [LNIND 1962 SC 214] [LNIND 1962 SC 214] [LNIND 1962 SC 214]; State
of Andhra Pradesh v S Sree Rama Rao AIR 1963 SC 1723 [LNIND 1963 SC 105] [LNIND 1963 SC 105] [LNIND 1963 SC 105],
State of Andhra Pradesh v S Sree Rama Rao [1964] 3 SCR 25 [LNIND 1963 SC 105] [LNIND 1963 SC 105] [LNIND 1963 SC
105], State of Andhra Pradesh v S Sree Rama Rao (1964) 1 SCJ 402.
739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827]; Nand Kishore Prasad v State of Bihar AIR 1978 SC
1277 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore Prasad v State of Bihar (1978) 3 SCC
366 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore Prasad v State of Bihar [1978] 3 SCR
708 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135]; State of Andhra Pradesh v S Sree Rama Rao AIR
1963 SC 1723 [LNIND 1963 SC 105] [LNIND 1963 SC 105] [LNIND 1963 SC 105], State of Andhra Pradesh v S Sree Rama
Rao [1964] 3 SCR 25 [LNIND 1963 SC 105] [LNIND 1963 SC 105] [LNIND 1963 SC 105], State of Andhra Pradesh v S Sree
Rama Rao (1964) 1 SCJ 402.
3 State of Andhra Pradesh v N Radhakishan AIR 1998 SC 1833 [LNIND 1998 SC 433] [LNIND 1998 SC 433] [LNIND 1998 SC
433], State of Andhra Pradesh v N Radhakishan (1998) 4 SCC 154 [LNIND 1998 SC 433] [LNIND 1998 SC 433] [LNIND 1998
SC 433], State of Andhra Pradesh v N Radhakishan [1998] 2 SCR 786 (the Supreme Court quashed the charge memo issued
in 1995 because of delay in holding the inquiry). See however State of Punjab v Chaman Lal Goyal (1995) 2 SCC 570 [LNIND
1995 SC 177] [LNIND 1995 SC 177] [LNIND 1995 SC 177], State of Punjab v Chaman Lal Goyal (1995) 2 LLJ 679 [LNIND
1995 SC 177] [LNIND 1995 SC 177] [LNIND 1995 SC 177] (the incident occurred in 1987 but the inquiry was initiated in 1993
that is more than five years later; there was no explanation for the delay and yet the Supreme Court did not quash the
disciplinary, proceedings; it ruled that in the interest of justice as well as administration the inquiry ought to be completed).

PROCEEDINGS/B. INQUIRY OFFICER/[005.128] Bias of inquiry officer
[005.128] Bias of inquiry officer Bias on the part of the inquiry officer vitiates the inquiry. The inquiry officer
must not be biased against the person against whom the inquiry is to be held, prejudge the issue, have a
foreclosed mind or have pre-determined notion1. The test is that there must be a real danger of bias. The
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conclusion as to bias can be drawn from the surrounding circumstances2.
An inquiry by a person who is biased against the charged officer is a clear denial of a reasonable
opportunity3. For instance, one and the same person cannot be a judge and witness in the same case.
Therefore, the inquiry officer cannot also be a witness against the servant against whom he is holding the
inquiry. Such a procedure denotes a biased state of mind against the person concerned4.
1 B Martin v Union of India AIR 1976 Kant 144 [LNIND 1975 KANT 159] [LNIND 1975 KANT 159] [LNIND 1975 KANT 159], B
Martin v Union of India (1976) 1 Kant LJ 128, B Martin v Union of India (1996) 1 Serv LR 442; see also Sunil Kumar Banerjee v
State of West Bengal AIR 1980 SC 1170 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136], Sunil Kumar
Banerjee v State of West Bengal (1980) 3 SCC 304 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136], Sunil
Kumar Banerjee v State of West Bengal [1980] 3 SCR 179 [LNIND 1980 SC 136] [LNIND 1980 SC 136] [LNIND 1980 SC 136].
As to rule against bias as a principle of natural justice see [005.073] and following.
v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]; State of
Punjab v VK Khanna [2001] 4 LRI 400, State of Punjab v VK Khanna AIR 2001 SC 343 [LNIND 2000 SC 1707] [LNIND 2000
SC 1707] [LNIND 2000 SC 1707], State of Punjab v VK Khanna (2001) 2 SCC 330 [LNIND 2000 SC 1707] [LNIND 2000 SC
1707] [LNIND 2000 SC 1707].
3 State of Uttar Pradesh v CS Sharma AIR 1968 SC 158 [LNIND 1967 SC 172] [LNIND 1967 SC 172] [LNIND 1967 SC 172],
State of Uttar Pradesh v CS Sharma (1967] 3 SCR 848 [LNIND 1967 SC 172] [LNIND 1967 SC 172] [LNIND 1967 SC 172];
Manihar Singh v Superintendent of Police, United Khasi-Jaintia Hills, Shillong AIR 1969 A & N 1, Manihar Singh v
Superintendent of Police, United Khasi-Jaintia Hills, Shillong (1969) 2 Lab LJ 493, Manihar Singh v Superintendent of Police,
United Khasi-Jaintia Hills, Shillong (1969) Lab IC 4; P Sreeramulu v State of Andhra Pradesh represented by Assistant
Collector, Cuddapah AIR 1970 AP 114 [LNIND 1969 AP 49] [LNIND 1969 AP 49] [LNIND 1969 AP 49].
4 Kuldeep Singh v Comr of Police AIR 1999 SC 677 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109],
Kuldeep Singh v Comr of Police (1999) 2 SCC 10 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109],
Kuldeep Singh v Comr of Police (1998) 8 JT 603(the inquiry officer was biased as he did conduct an impartial domestic inquiry
which is an essential component of natural justice as also that of reasonable opportunity, contemplated by the Constitution of
India art 311(2); he inquiry officer, acted so arbitrarily in the matter and found the employee guilty in such a coarse manner that
it became apparent that he was merely carrying out the command from some superior officer who perhaps directed to implicate
the accused); Arjun Chaubey v Union of India AIR 1984 SC 1356 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC
90], Arjun Chaubey v Union of India (1984) 2 SCC 578 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90], Arjun
Chaubey v Union of India [1984] 3 SCR 302 [LNIND 1984 SC 90] [LNIND 1984 SC 90] [LNIND 1984 SC 90] (an employee was
dismissed by his superior officer on charge of misconduct in relation to himself, after considering the employee's explanation
himself; the order of dismissal was held to be illegal as violative of natural justice since no person can be a judge in his own
cause; any one having a personal stake in the inquiry must keep himself aloof from the inquiry); State of Uttar Pradesh v
Mohammad Nooh AIR 1958 SC 86 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99], State of Uttar Pradesh v
Mohammad Nooh [1958] SCR 595 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99], State of Uttar Pradesh v
Mohammad Nooh (1958) SCJ 242 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99].

PROCEEDINGS/C. DISCIPLINARY AUTHORITY/[005.129] Hearing by disciplinary authority
[005.129] Hearing by disciplinary authority The principles of natural justice require the disciplinary
authority, which has to take a final decision and can impose a penalty, to give an opportunity to the officer,
charged of misconduct, to file a representation before the disciplinary authority1.
A delinquent officer has a right of hearing not only during the inquiry proceedings conducted by the inquiry
officer into the charges levelled against him but also when those findings are considered by the disciplinary
authority, when the disciplinary authority forms a tentative opinion that it does not agree with the findings
recorded by the inquiry officer. When the disciplinary authority disagrees with the inquiry officer, it must give
reasons as to why it disagrees2. Until a final decision is taken in the matter, the inquiry does not come to an
end. The inquiry ends when the disciplinary authority has taken a final view and held whether the charges
are proved or not proved and punishment inflicted on the delinquent. Thus, the right of being heard is
178 178
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available to the delinquent employee up to the final stage3.
If the findings of the inquiry officer are favourable to the delinquent employee, holding that the charges are
not proved against him, it is imperative for the disciplinary authority to give an opportunity to the delinquent
officer, before reversing the findings of the inquiry officer4.
1 State Bank of India v Arvind K Shukla AIR 2001 SC 2398, State Bank of India v Arvind K Shukla (2001) 4 JT 415, State Bank
of India v Arvind K Shukla (2001) Lab IC 2387. As to hearing see [005.058].
2 Punjab National Bank v Kunj Behari Misra AIR 1998 SC 2713 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC
778], Punjab National Bank v Kunj Behari Misra (1998) 7 SCC 84 [LNIND 1998 SC 778] [LNIND 1998 SC 778] [LNIND 1998 SC
778], Punjab National Bank v Kunj Behari Misra (1998) 5 JT 548.
3 This is in consonance with the Constitution of India art 311(2) and it being a constitutional right of the employee, it cannot be
whittled down by any law or service rules made under Constitution of India art 309 (see generally[80]CONSTITUTIONAL LAW).

PROCEEDINGS/C. DISCIPLINARY AUTHORITY/[005.130] Post-decisional hearing
[005.130] Post-decisional hearing When the disciplinary authority has taken a final decision, holding an
employee guilty of misconduct, without giving him a hearing; a post-decisional hearing cannot cure the
defect. In such a situation, hearing must be held before holding the person guilty, so that there may still be
some scope left for, convincing the disciplinary authority1.
739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827] (the disciplinary authority took a final decision and
established charges against the employee along with recording this decision in writing, without giving him a hearing; thereafter,
a show cause notice was given to him against the proposed punishment of dismissal; the court ruled that the order of dismissal
was not valid).

PROCEEDINGS/C. DISCIPLINARY AUTHORITY/[005.131] Bias of disciplinary authority
[005.131] Bias of disciplinary authority Bias on the part of the disciplinary authority may vitiate disciplinary
proceedings1.
1 State of Punjab v V K Khanna [2001] 4 LRI 400, State of Punjab v V K Khanna AIR 2001 SC 343 [LNIND 2000 SC 1707]
[LNIND 2000 SC 1707] [LNIND 2000 SC 1707], State of Punjab v V K Khanna (2001) 2 SCC 330 [LNIND 2000 SC 1707]
[LNIND 2000 SC 1707] [LNIND 2000 SC 1707]. Also Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant [2001] 3 LRI 406,
Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND
2000 SC 1362], Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000
SC 1362] [LNIND 2000 SC 1362]. As to rule against bias as a principle of natural justice see [005.073].
179 179
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PROCEEDINGS/C. DISCIPLINARY AUTHORITY/[005.132] Second inquiry and interference of court
[005.132] Second inquiry and interference of court If the disciplinary authority exonerates the delinquent
civil servant finally, no re-inquiry or fresh inquiry on the same facts can then be ordered, unless there is a
specific provision for reviewing an order or exoneration of the kind in the service rules or any law to that
effect1. If an earlier order of removal from service is quashed because of a technical flaw in the inquiry and
the concerned government servant is reinstated, a second inquiry on merits can still be held on the same
charges2. Even if an employee is acquitted by a criminal court, departmental inquiry may still continue3.
The degree of proof required in a departmental disciplinary proceeding need not be of the same standard as
the degree of proof required for establishing the guilt of an accused in a criminal case. However, a mere
suspicion, however strong, cannot be substituted for proof.
The courts do not sit in appeal over the findings recorded by the disciplinary authority or the inquiry officer in
a departmental inquiry. However, it does not imply that the courts cannot interfere in any circumstance.
Furthermore, even if the concerned servant is found guilty in a departmental inquiry and action is taken
against him on that basis, he can be prosecuted in a court.
1 Dwarkachand v State of Rajasthan AIR 1958 Raj 38 [LNIND 1957 RAJ 198] [LNIND 1957 RAJ 198] [LNIND 1957 RAJ 198],
Dwarkachand v State of Rajasthan (1957) ILR 7 Raj 1029, Dwarkachand v State of Rajasthan (1957) Raj LW 587; Veervunni
Mooppan v State AIR 1960 Ker 294 [LNIND 1960 KER 65] [LNIND 1960 KER 65] [LNIND 1960 KER 65].
2 Union of India v MB Patnaik AIR 1981 SC 858 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72], Union of India
v MB Patnaik (1981) 2 SCC 159 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72], Union of India v MB Patnaik
[1981] 2 SCR 517; Anand Narain Shukla v State of Madhya Pradesh AIR 1979 SC 1923 [LNIND 1979 SC 315] [LNIND 1979
SC 315] [LNIND 1979 SC 315], Anand Narain Shukla v State of Madhya Pradesh (1980) 1 SCC 252 [LNIND 1979 SC 315]
[LNIND 1979 SC 315] [LNIND 1979 SC 315], Anand Narain Shukla v State of Madhya Pradesh [1980] 1 SCR 196 [LNIND 1979
3 Corpn of the City of Nagpur, Civil Lines, Nagpur v Ramchandra G Modak AIR 1984 SC 626 [LNIND 1981 SC 119] [LNIND
1981 SC 119] [LNIND 1981 SC 119], Corpn of the City of Nagpur, Civil Lines, Nagpur v Ramchandra G Modak (1984) 2 SCC
714, Corpn of the City of Nagpur, Civil Lines, Nagpur v Ramchandra G Modak [1981] 3 SCR 22 [LNIND 1981 SC 119] [LNIND
1981 SC 119] [LNIND 1981 SC 119].

PROCEEDINGS/D. SECOND OPPORTUNITY OF REPRESENTATION/[005.133] History
[005.133] History Prior to 1976, if a delinquent officer was proposed to be punished through dismissal,
removal or reduction in rank, after the completion of inquiry against a civil servant, then it was necessary to
give him another opportunity of making a representation as to why the proposed punishment must not be
awarded to him. It was illegal to impose any of these punishments without this formality1. At this stage, the
punishing authority was not bound to hear the civil servant and a written representation by him was regarded
as sufficient2.
1 See the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW). See also State of Maharashtra v
Bhaishankar Avalram Joshi AIR 1969 SC 1302 [LNIND 1969 SC 107] [LNIND 1969 SC 107] [LNIND 1969 SC 107], State of
Maharashtra v Bhaishankar Avalram Joshi (1969) 1 SCC 804 [LNIND 1969 SC 107] [LNIND 1969 SC 107] [LNIND 1969 SC
107], State of Maharashtra v Bhaishankar Avalram Joshi [1969] 3 SCR 917 [LNIND 1969 SC 107] [LNIND 1969 SC 107]
[LNIND 1969 SC 107]; Bachhittar Singh v State of Punjab AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108]
[LNIND 1962 SC 108], Bachhittar Singh v State of Punjab [1963] Supp 3 SCR 713; S Kapur Singh v Union of India AIR 1960
SC 493 [LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227], S Kapur Singh v Union of India [1960] 2 SCR 569
180 180
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[LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227], S Kapur Singh v Union of India (1960) SCJ 487 [LNIND
1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227]; Union of India v Jeewan Ram AIR 1958 SC 905 [LNIND 1958 SC
240] [LNIND 1958 SC 240] [LNIND 1958 SC 240].
2 U R Bhatt v Union of India AIR 1962 SC 1344 [LNIND 1960 SC 159] [LNIND 1960 SC 159] [LNIND 1960 SC 159], U R Bhatt
v Union of India (1962) 1 LLJ 656.

PROCEEDINGS/D. SECOND OPPORTUNITY OF REPRESENTATION/[005.134] Rationale behind second
opportunity
[005.134] Rationale behind second opportunity Second opportunity of making a representation enabled
the delinquent servant to plead that no case could be made out against him, that the conclusions of fact
drawn from the evidence were not correct or that the proposed punishment was excessive1.
However, the second opportunity protracted the disciplinary proceedings without affording any additional
safeguard to the guilty officials. In order to expedite disciplinary proceedings, procedural formalities were
reduced2.
Union of India (1958) SCJ 497 [LNIND 1957 SC 138] [LNIND 1957 SC 138] [LNIND 1957 SC 138]; Union of India v H C Goel
AIR 1964 SC 364 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208], Union of India v H C Goel [1964] 4 SCR
718 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208], Union of India v H C Goel (1964) 1 LLJ 38 [LNIND
2 Indian Law Institute, 'Disciplinary Proceedings against Government Servants', (1962)p 90; ' Reports of the Santhanam
Committee on Prevention of Corruption' (1964).

PROCEEDINGS/D. SECOND OPPORTUNITY OF REPRESENTATION/[005.135] Present position
[005.135] Present position In regard to the aspect of providing a second opportunity of representation to
the delinquent servant, the position now is that where it is proposed, after inquiry, to impose upon a
government servant the punishment of dismissal, removal or reduction in rank, it may be imposed on the
basis of the evidence adduced at the time of such inquiry, without giving him any opportunity of making
representation on the penalty proposed. However, after the inquiry officer has submitted his report,
containing his findings and recommendations but before the disciplinary authority takes a final view thereon,
a copy of the report of the inquiry officer must to be sent to the delinquent employee and his comments
invited thereon. This is to fulfil the requirements of natural justice. Thus, even if second stage of the inquiry
has been abolished, the delinquent is still entitled to represent against the conclusion of the inquiry officer1.
The position would be the same where statutory rules governed the procedure; the principle would apply
even when statutory rules were silent or even prohibited the supply of a copy of the inquiry report to the
delinquent; however, merely because an inquiry report has not been furnished to the delinquent employee,
the order of dismissal is not vitiated, unless it is shown that the delinquent has been prejudiced thereby. If the
court comes to the conclusion that the non-supply of the report would have made no difference to the
ultimate findings and the punishment given, the court must not interfere with the order of punishment.
Whether, in fact, prejudice has been caused to the employee or not on account of the denial to him of the
report has to be considered on the facts and circumstances of each case2.
181 181
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1 When the inquiry officer is other than the disciplinary authority, the disciplinary proceeding breaks into two stages. The first
stage ends when the disciplinary authority arrives at its conclusions on the basis of the evidence, inquiry officer's report and the
delinquent employee's reply to it. The second stage begins when the disciplinary authority decides to impose penalty on the
basis of its conclusions. The Constitution of India, 42nd Amendment Act has taken away the second right but the right of the
charged officer to receive the report of the inquiry officer has been treated as an essential part of the first stage itself: see
Managing Director, ECIL Hyderabad v B Karunakar AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND
1993 SC 1059], Managing Director, ECIL Hyderabad v B Karunakar (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC
1059] [LNIND 1993 SC 1059], Managing Director, ECIL Hyderabad v B Karunakar (1993) 6 JT 1; Union of India v Mohd
Ramzan Khan AIR 1991 SC 471 [LNIND 1990 SC 726] [LNIND 1990 SC 726] [LNIND 1990 SC 726], Union of India v Mohd
Ramzan Khan (1991) 1 SCC 588 [LNIND 1990 SC 726] [LNIND 1990 SC 726] [LNIND 1990 SC 726], Union of India v Mohd
Ramzan Khan [1990] Supp 3 SCR 248.
2 Oriental Insurance Co Ltd v S Balakrishnan AIR 2001 SC 2400 [LNIND 2001 SC 2895] [LNIND 2001 SC 2895] [LNIND 2001
SC 2895], Oriental Insurance Co Ltd v S Balakrishnan (2000) 4 JT 417, Oriental Insurance Co Ltd v S Balakrishnan (2001) Lab
IC 2379 (non supply of the report of inquiry officer to the delinquent employee caused no prejudice to him and refused to quash
the order of dismissal passed on him by the disciplinary authority).

ADMINISTRATIVE LAW/9. DISCIPLINARY PROCEEDINGS AND NATURAL JUSTICE/(3) DISCIPLINARY
RULES/[005.136] Enforceability of disciplinary rules
[005.136] Enforceability of disciplinary rules The procedure to be followed at inquiries conducted against
the civil servants may be laid down in disciplinary rules1. These rules codify several facets of natural justice2.
They are binding and not merely directory in nature. Statutory disciplinary authorities must act within the
rules3.
Under the concept of 'reasonable opportunity'4, the courts resort to the concept of natural justice which, in
substance means minimal procedural safeguards to the accused person. Therefore, if the service rules
provide more safeguards than the minimal, the rules must be observed. If, however, the rules fall below the
minimal safeguards, then the rules have to be supplemented with the concept of natural justice5.
If two sets of rules govern civil servants and both emanate from the Constitution of India, then both sets
would have an equal force of law6.
1 Ie the rules framed under the Constitution of India art 309 (see generally[80]CONSTITUTIONAL LAW).
2 State of Bombay (now Maharashtra) v Nurul Latif Khan AIR 1966 SC 269 [LNIND 1965 SC 48] [LNIND 1965 SC 48] [LNIND
1965 SC 48], State of Bombay (now Maharashtra) v Nurul Latif Khan [1965] 3 SCR 135 [LNIND 1965 SC 48] [LNIND 1965 SC
48] [LNIND 1965 SC 48], State of Bombay (now Maharashtra) v Nurul Latif Khan (1966) 2 SCJ 184 [LNIND 1965 SC 48]
[LNIND 1965 SC 48] [LNIND 1965 SC 48](the court held that under the Civil Services (Classification, Control and Appeal)
Rulesr 55, it was mandatory on the inquiry officer to hold an oral hearing, if the servant charged desired such an inquiry and the
denial of such an inquiry would introduce a fatal infirmity in the inquiry because of the contravention of the mandatory provisions
of the rule; this requirement was held to be based plainly upon consideration of natural justice).
3 State of Uttar Pradesh v Jogendra Singh AIR 1963 SC 1618 [LNIND 1963 SC 52] [LNIND 1963 SC 52] [LNIND 1963 SC 52],
State of Uttar Pradesh v Jogendra Singh [1964] 2 SCR 197 [LNIND 1963 SC 52] [LNIND 1963 SC 52] [LNIND 1963 SC 52],
State of Uttar Pradesh v Jogendra Singh (1964) 1 SCJ 399 [LNIND 1963 SC 52] [LNIND 1963 SC 52] [LNIND 1963 SC 52] (the
court held, with reference to a service rule in Uttar Pradesh that it gave an option to a gazetted civil servant to request the
Governor that his case be tried by an administrative tribunal and not otherwise and the rule imposed an obligation on the
Governor to grant such a request; the proceedings in the instant case were quashed as the servant's request to this effect was
not granted and this violated the rule in question); Ranendra Chandra Banerjee v Union of India AIR 1963 SC 1552 [LNIND
1963 SC 47] [LNIND 1963 SC 47] [LNIND 1963 SC 47], Ranendra Chandra Banerjee v Union of India [1964] 2 SCR 135
[LNIND 1963 SC 47] [LNIND 1963 SC 47] [LNIND 1963 SC 47], Ranendra Chandra Banerjee v Union of India (1964) 1 SCJ
578 [LNIND 1963 SC 47] [LNIND 1963 SC 47] [LNIND 1963 SC 47]; State of Uttar Pradesh v Babu Ram Upadhya AIR 1961
SC 751 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292], State of Uttar Pradesh v Babu Ram Upadhya
[1961] 2 SCR 679 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292], State of Uttar Pradesh v Babu Ram
Upadhya (1961) 1 SCA 593 [LNIND 1960 SC 292] [LNIND 1960 SC 292] [LNIND 1960 SC 292] (dismissal of a sub-inspector of
police by the superintendent of police without observing the rules pertaining to inquiry made under the Police Act 1861 was held
182 182
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bad as mandatory rules had not been observed).
4 Ie as contained in the Constitution of India art 311(2) (see generally[80]CONSTITUTIONAL LAW).
State of Uttar Pradesh v CS Sharma AIR 1968 SC 158 [LNIND 1967 SC 172] [LNIND 1967 SC 172] [LNIND 1967 SC 172],
State of Uttar Pradesh v CS Sharma (1967] 3 SCR 848 [LNIND 1967 SC 172] [LNIND 1967 SC 172] [LNIND 1967 SC 172]; S
Kapur Singh v Union of India AIR 1960 SC 493 [LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227], S Kapur
Singh v Union of India [1960] 2 SCR 569 [LNIND 1959 SC 227] [LNIND 1959 SC 227] [LNIND 1959 SC 227], S Kapur Singh v
The rules have to be considered in the light of the provisions of the Constitution of India art 311(2) to find out whether the rules
purport to provide reasonable opportunity of hearing to the delinquent employee: Kuldeep Singh v Comr of Police AIR 1999 SC
677 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109], Kuldeep Singh v Comr of Police (1999) 2 SCC 10
[LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109], Kuldeep Singh v Comr of Police (1998) 8 JT 603.
6 Secretary to Government of Tamil Nadu v D Subramanyan Rajadevan AIR 1996 SC 2634 [LNIND 1996 SC 1017] [LNIND
1996 SC 1017] [LNIND 1996 SC 1017], Secretary to Government of Tamil Nadu v D Subramanyan Rajadevan (1996) 5 SCC
334 [LNIND 1996 SC 1017] [LNIND 1996 SC 1017] [LNIND 1996 SC 1017], Secretary to Government of Tamil Nadu v D
Subramanyan Rajadevan (1996) 6 JT 456(there were two separate rules for civil servants in the State of Tamil Nadu: (1)
general disciplinary rules; and (2) rules for cases of corruption; it was stated that the inquiry into corruption cases must be held
under the relevant rules and not under the general disciplinary rules; as both sets of rules have been framed under the
Constitution of India art 309, they both have equal force of law).

ADMINISTRATIVE LAW/9. DISCIPLINARY PROCEEDINGS AND NATURAL JUSTICE/(3) DISCIPLINARY
RULES/[005.137] Effect of failure to adhere to disciplinary rules
[005.137] Effect of failure to adhere to disciplinary rules Whether every violation of the disciplinary rules
and regulations governing the inquiry against the delinquent public servant, would automatically vitiate the
inquiry, must be gathered from the following:
(1) In case of an order imposing punishment on an employee, consequent upon a disciplinary

inquiry held in violation of the rules regulations, the statutory provisions governing such
inquiries must not be set aside automatically. It must be inquired whether:
(a) the provision violated is of a substantive character; or
(b) the provision is procedural in nature.
(2) A substantive provision must normally be complied with and the theory of substantial
compliance or the test of prejudice would not apply in such a case.
(3) Procedural provisions are meant to afford a reasonable and adequate opportunity to the
delinquent employee. Accordingly, violation of any and every procedural provision cannot be
said to automatically vitiate the inquiry held or order passed.
(4) Except in case of absence of notice, hearing and opportunity1, any complaint of violation of
procedural rules must be examined from the point of view of prejudice, that is, whether such
violation has prejudiced the delinquent employee in defending himself properly and effectively.
It is only if the court finds that the furnishing of the report would have made a difference to the
result of the case that it must set aside the order2.
(5) If it is found that he has been so prejudiced, appropriate orders must be made to remedy the
prejudice including setting aside the inquiry and/or the order of punishment. If no prejudice is
caused, no interference is called for.
(6) If the procedural provisions are so fundamental in character that their violation is a proof of
prejudice by itself, then, the court may not insist on further proof.
(7) The test is of prejudice, that is, whether a person has received a fair hearing considering all
things and this aspect can also be looked at from the point of view of mandatory and directory
provisions.
183 183
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(8) In case of violation of a mandatory rule, it has to be ascertained whether the rule is conceived
in the interest of the person proceeded against or in public interest. In the former case, he can
waive the same either expressly or by his conduct. In case of waiver, the order imposing
punishment cannot be set aside. If he has not waived it or the provision is such that cannot be
waived, then the court has to give appropriate directions3.
(9) In case of violation of a directory rule, the complaint of violation has to be examined from the
standpoint of substantial compliance. The order passed can be set aside only where such
violation has caused prejudice to the delinquent employee.
1 Ministry of Finance v S B Ramesh AIR 1998 SC 853 [LNIND 1998 SC 126] [LNIND 1998 SC 126] [LNIND 1998 SC 126],
Ministry of Finance v S B Ramesh (1998) 3 SCC 227 [LNIND 1998 SC 126] [LNIND 1998 SC 126] [LNIND 1998 SC 126],
Ministry of Finance v S B Ramesh (1998) 1 JT 319 (departmental inquiry was quashed as being totally unsatisfactory and
without observing the minimum required procedure for proving the charge; an order made without giving any notice to the
affected employee and without giving him any hearing, has been held to be bad in law).
2 State of Uttar Pradesh v Harendra Arora AIR 2001 SC 2319 [LNIND 2001 SC 1155] [LNIND 2001 SC 1155], State of Uttar
Pradesh v Harendra Arora (2001) 6 SCC 392 [LNIND 2001 SC 1155] [LNIND 2001 SC 1155], State of Uttar Pradesh v
Harendra Arora (2001) 1 JT (Supp) 70 (under a civil service rule, the report of the inquiry officer had to be furnished to the
delinquent officer before passing the order of punishment; the report was not sent to him in the case mentioned below but he
was dismissed from service; the Supreme Court ruled that the effect of the non-submission of the inquiry report to the
delinquent on the punishment awarded to him would depend on the question whether in fact prejudice had been caused to the
concerned employee because of denial of the report to him; that if non-supply of the report would have made no difference to
the ultimate findings and the punishment given by the disciplinary authority, the court ought not to interfere with the order of
punishment; in no case could the court set aside the order mechanically); Oriental Insurance Co Ltd v S Balakrishnan AIR 2001
SC 2400 [LNIND 2001 SC 2895] [LNIND 2001 SC 2895] [LNIND 2001 SC 2895], Oriental Insurance Co Ltd v S Balakrishnan
(2000) 4 JT 417, Oriental Insurance Co Ltd v S Balakrishnan (2001) Lab IC 2379; State Bank of Patiala v S K Sharma AIR
1996 SC 1669 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680], State Bank of Patiala v S K Sharma
(1996) 3 SCC 364 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC 2680], State Bank of Patiala v S K Sharma
(1996) 2 LLJ 296 (a service rule provided that copies of statement of witnesses will be provided to the delinquent officer at least
three days before inquiry begins; in the instant case, the concerned was directed to peruse the documents half an hour before
the commencement of the inquiry; thus, there was on infringement of the rule; nevertheless, the Supreme Court refused to
quash the order of removal of service, as no prejudice resulted to him on account of not furnishing him the copies of the
statements of witnesses); Managing Director, ECIL Hyderabad v B Karunakar AIR 1994 SC 1074 [LNIND 1993 SC 1059]
[LNIND 1993 SC 1059] [LNIND 1993 SC 1059], Managing Director, ECIL Hyderabad v B Karunakar (1993) 4 SCC 727 [LNIND
1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059], Managing Director, ECIL Hyderabad v B Karunakar (1993) 6 JT
1 (where, therefore, even after the furnishing of the report, no different consequence would have followed, it would be a
perversion of justice to permit the employee to resume duty and to get all the consequential benefits).
3 Krishan Lal v State of Jammu and Kashmir (1994) 4 SCC 422 [LNIND 1994 SC 277] [LNIND 1994 SC 277] [LNIND 1994 SC
277], Krishan Lal v State of Jammu and Kashmir (1995) 2 LLJ 718 [LNIND 1994 SC 277] [LNIND 1994 SC 277] [LNIND 1994
SC 277] (a statutory rule required supply of a copy of the inquiry officer's report to the delinquent officer; the provision was
treated as mandatory being only in the interest of the person concerned and not relatable to public policy or in public interest or
to serve a public purpose; the provisions could therefore, be waived by the party concerned).

ADMINISTRATIVE LAW/10. EFFECT OF FAILURE OF NATURAL JUSTICE/[005.138] Void and voidable
[005.138] Void and voidable A voidable order means that the order was legally valid at its inception and it
remains valid, until it is set aside or quashed by the courts, that is, it has legal effect up to the time it is
quashed. On the other hand, a void order is no order at all from its inception; it is a nullity and void ab initio1.
An affected person has to go to a court for an authoritative determination as to the nature of the impugned
order2.
An order made without observing natural justice, when it ought to have been done, makes the order voidable
and not a nullity3. However, later it was settled that such an order would be void and not voidable4.
184 184
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The meaning of void is however, relative rather than absolute and the court may in effect turn void acts into
valid ones by refusing to grant remedies5. The judicial policy is to balance justice to the individual with the
considerations of public interest and decide accordingly6.
In India, by and large, the case law has been free of the void/voidable controversy and the judicial thinking
has been that a quasi judicial order made without following natural justice is void and a nullity. An order
depriving a person of his civil rights passed without affording him an opportunity of being heard suffers from
the vice of violation of natural justice and is thus, an arbitrary order7.
The party who is denied natural justice need not establish particular prejudice for want of such opportunity
because the principles of natural justice know of no exclusionary rule dependent on whether it would have
made any difference if natural justice has been observed8. The nonobservance of natural justice is itself a
prejudice to any individual and proof of prejudice, independent of proof of denial of natural justice, is not
necessary9.
In cases of absence of notice10 or absence of hearing11, the order passed is invalid or a nullity12.
1 See Wade, 'Administrative law' (1982)p 310; De Smith, 'Judicial Review of Administrative Action' (1980)p 151; Rubinsteins,
Jurisdiction and Illegality (1965)p 5; Gravells, Some Problems in Administrative Law: A wastedopportunity of clarification v
(1977) 93 LQR 327.
2 Hounslow London Borough Council v Twickenham Garden Developments Ltd [1971] Ch 233 at 260, Hounslow London
Borough Council v Twickenham Garden Developments Ltd [1970] 3 All ER 326 at 348 (a decision reached by a tribunal wholly
outside its jurisdiction and in complete defiance of natural justice is about as void as anything can be; however, if nobody who is
entitled to challenge or question it chooses to do so, it remains in being). See Hartley and Griffith, Government and Law(1975)p
364.
3 Durayappah v Fernando [1967] 2 AC 337, Durayappah v Fernando [1967] 2 All ER 152, PC (the concerned minister
dissolved the Jaffna Municipal Council in Ceylon on the ground of incompetence; the minister gave no hearing to the council
and the mayor challenged the order without associating the council with him; the Privy Council ruled that although the minister
ought to have observed natural justice in passing the order, nevertheless, no relief could be given since the minister's order was
only voidable and not a nullity and so it could not be challenged by the mayor alone; that the order having been passed against
the municipal council, it could have been challenged by the council but not by the mayor alone; that had the order been a nullity,
it could have been challenged by anyone having a legitimate interest in the conduct of the council and the council would be
deemed to be in office; however, since the order was voidable, it could be set aside only at the instance of the person against
whom it was passed, that is in the present case, the council).
4 R B Shreeram Durga Prasad and Fatehchand Nursing Das v Settlement Commissioner AIR 1989 SC 1038 [LNIND 1989 SC
710] [LNIND 1989 SC 710] [LNIND 1989 SC 710], R B Shreeram Durga Prasad and Fatehchand Nursing Das v Settlement
Commissioner (1989) 1 SCC 630, R B Shreeram Durga Prasad and Fatehchand Nursing Das v Settlement Commissioner
[1989] 1 SCR 335 [LNIND 1989 SC 710] [LNIND 1989 SC 710] [LNIND 1989 SC 710]; SL Kapoor v Jagmohan AIR 1981 SC
136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v Jagmohan (1980) 4 SCC 379 [LNIND
1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v Jagmohan [1981] 1 SCR 746 [LNIND 1980 SC 391]
[LNIND 1980 SC 391] [LNIND 1980 SC 391]; Chintapalli Agency Taluk, Arrack Sales Co op Society Ltd v Secretary (Food and
Agriculture) Govt of Andhra Pradesh AIR 1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275],
Chintapalli Agency Taluk, Arrack Sales Co op Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh (1977) 4
SCC 337 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275], Chintapalli Agency Taluk, Arrack Sales Co op
Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh (1977) UJ 651; State of Orissa v Binapani Dei AIR
1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37], State of Orissa v Binapani Dei [1967] 2 SCR
625 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37], State of Orissa v Binapani Dei (1967) 2 LLJ 266 [LNIND
1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]; Malloch v Aberdeen Corpn [1971] 2 All ER 1278 at 1282, 1294,
Malloch v Aberdeen Corpn [1971] 1 WLR 1578 at 1582, 1595 HL, (the House of Lords characterised an order of dismissal of a
teacher by a statutory body without giving him a hearing as a nullity); Anisminic Ltd v Foreign Compensation Commission
[1969] 2 AC 147, Anisminic Ltd v Foreign Compensation Commission [1969] 1 All ER 208 HL, (failure of natural justice goes to
the jurisdiction of the body concerned and therefore, its decision is a nullity which a privative clause in the relevant statue
cannot protect); Ridge v Baldwin [1964] AC 40, Ridge v Baldwin [1963] 2 All ER 66 HL, (a chief constable was dismissed
without observing natural justice and he appealed to the Home Secretary who confirmed the dismissal order; under the relevant
law, the decision of the Home Secretary was final and binding but the chief constable came to the court for a declaration that his
dismissal was a nullity; the question was whether his application was maintainable for it was argued against it that the decision
of the Home Secretary was final and binding and that appeal to him by the chief constable amounted to waiver by him; the court
stated that a declaration given without regard to the principles of natural justice is void).
5 See Wade, 'Administrative law', (1982)pp 314-15: Void is therefore, meaningless in any absolute sense. Its meaning is
relative, depending upon the court's willingness to grant relief in any particular situation. If this principle of legal relativity is
185 185
Page
borne in mind, confusion over void or voidable can be avoided. See also De Smith, 'Judicial Review of Administrative Action'
(1980)p 152.
6 Hoffman-La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, Hoffman-La Roche & Co AG v
Secretary of State for Trade and Industry [1974] 2 All ER 1128 HL,.
7 Haji Abdool Shakoor & Co v Union of India (2001) 10 JT 438; Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant AIR
2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], Kumaon Mandal Vikas Nigam Ltd v Girja
Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362], Kumaon Mandal Vikas
Nigam Ltd v Girja Shankar Pant (2000) 4 SCJ 52 (a disciplinary inquiry conducted by a statutory body against its employee was
quashed on the ground of denial to him of a reasonable opportunity to defend himself); Babu Lal v State of Haryana AIR 1991
SC 1310 [LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25], Babu Lal v State of Haryana (1991) 2 SCC 335
[LNIND 1991 SC 25] [LNIND 1991 SC 25] [LNIND 1991 SC 25], Babu Lal v State of Haryana [1991] 1 SCR 73 [LNIND 1991 SC
25] [LNIND 1991 SC 25] [LNIND 1991 SC 25]; Om Prakash Goel v Himachal Pradesh Tourism Development Corporation Ltd,
Shimla AIR 1991 SC 1490 [LNIND 1991 SC 267] [LNIND 1991 SC 267] [LNIND 1991 SC 267], Om Prakash Goel v Himachal
Pradesh Tourism Development Corporation Ltd, Shimla (1991) 3 SCC 291 [LNIND 1991 SC 267] [LNIND 1991 SC 267] [LNIND
1991 SC 267], Om Prakash Goel v Himachal Pradesh Tourism Development Corporation Ltd, Shimla [1991] 2 SCR 701;
Shrawan Kumar Jha v State of Bihar AIR 1991 SC 1117 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180],
Shrawan Kumar Jha v State of Bihar (1991) Supp 1 SCC 330, Shrawan Kumar Jha v State of Bihar (1991) Lab IC 1317; R B
Shreeram Durga Prasad and Fatehchand Nursing Das v Settlement Commissioner AIR 1989 SC 1038 [LNIND 1989 SC 710]
[LNIND 1989 SC 710] [LNIND 1989 SC 710], R B Shreeram Durga Prasad and Fatehchand Nursing Das v Settlement
Commissioner (1989) 1 SCC 630, R B Shreeram Durga Prasad and Fatehchand Nursing Das v Settlement Commissioner
[1989] 1 SCR 335 [LNIND 1989 SC 710] [LNIND 1989 SC 710] [LNIND 1989 SC 710]; North Bihar Agency v State of Bihar AIR
1981 SC 1758, North Bihar Agency v State of Bihar (1981) 3 SCC 131, North Bihar Agency v State of Bihar (1981) SCC (Cr)
651; Sarjoo Prasad v The General Manager AIR 1981 SC 1481 [LNIND 1981 SC 45] [LNIND 1981 SC 45] [LNIND 1981 SC
45], Sarjoo Prasad v The General Manager (1981) 3 SCC 544 [LNIND 1981 SC 45] [LNIND 1981 SC 45] [LNIND 1981 SC 45],
Sarjoo Prasad v The General Manager (1981) SCC Lab 533; State of Gujarat v Patel Chaturbhai Narsinhbhai AIR 1975 SC
630, State of Gujarat v Patel Chaturbhai Narsinhbhai (1975) 1 SCC 583 [LNIND 1975 SC 22] [LNIND 1975 SC 22] [LNIND 1975
SC 22]; State of Orissa v Binapani Dei AIR 1967 SC 1269 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37],
State of Orissa v Binapani Dei [1967] 2 SCR 625 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37], State of
Orissa v Binapani Dei (1967) 2 LLJ 266 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37]; Collector of Monghyr v
Keshav Pershad Goenka AIR 1962 SC 1694 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND 1962 SC 136], Collector of
Monghyr v Keshav Pershad Goenka [1963] 1 SCR 98 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND 1962 SC 136];
Jabalpore Electric Supply Co Ltd v The Madhya Pradesh Electricity Board AIR 1974 Cal 309 [LNIND 1974 CAL 102] [LNIND
1974 CAL 102] [LNIND 1974 CAL 102].
8 Nawabkhan Abbaskhan v State of Gujarat AIR 1974 SC 1471 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC
53], Nawabkhan Abbaskhan v State of Gujarat (1974) 2 SCC 121 [LNIND 1974 SC 53] [LNIND 1974 SC 53] [LNIND 1974 SC
53], Nawabkhan Abbaskhan v State of Gujarat (1974) SCC Cr 467(the Bombay Police Act 1951 s 56, empowers the Police
Commissioner to extern any undesirable person on certain grounds set out therein; an order passed by the commissioner on
the petitioner was disobeyed by him and he was prosecuted for this in a criminal court; during the pendency of his case, on a
writ petition filed by the petitioner, the high court quashed the externment order on the ground of failure of natural justice; the
trial court then acquitted the appellant; the government appealed against the acquittal and the high court convicted him for
disobeying the order; the high court took the position that the order in question was not void ab initio; that the appellant had
disobeyed the order much earlier than when it was quashed by the high court; that the order was in existence on the date it was
infringed by him; that the high court's own decision invalidating the order in question was not retroactive and did not render it
non est or a nullity from its inception but it was invalidated only from the date the court declared it to be so by its judgment;
however, when the matter came in appeal before the Supreme Court, it approached the matter from a different angle; the order
of externment affected a fundamental right under the Constitution of India art 19 of the appellant in a manner which was not
reasonable; the order was thus illegal and unconstitutional and hence void; the Court ruled definitively that an order infringing a
constitutionally guaranteed right made without hearing the party affected, where hearing was required, would be void ab initio
and ineffectual to bind the parties from the very beginning and a person cannot be convicted for non observance of such an
order; the appellant could not thus be convicted for flouting the police commissioner's order); Management MS Nally Bharat
Engineering Co Ltd v State of Bihar (1990) 2 SCC 48 [LNIND 1990 SC 72] [LNIND 1990 SC 72] [LNIND 1990 SC 72],
Management MS Nally Bharat Engineering Co Ltd v State of Bihar [1990] 1 SCR 290 [LNIND 1990 SC 72] [LNIND 1990 SC 72]
[LNIND 1990 SC 72], Management MS Nally Bharat Engineering Co Ltd v State of Bihar (1990) 2 LLJ 211 [LNIND 1990 SC 72]
[LNIND 1990 SC 72] [LNIND 1990 SC 72] (the Bihar Government transferred a labour dispute from the labour court at Dhanbad
to the labour court at Patna; this was done on the application of the workman but without giving a hearing to the management;
the management challenged the order and the Supreme Court held the order to be null and void saying that fairness demanded
that the management be given an opportunity to have its say against the proposed transfer of the case as it was a party
thereto); SL Kapoor v Jagmohan AIR 1981 SC 136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL
Kapoor v Jagmohan (1980) 4 SCC 379 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v
Jagmohan [1981] 1 SCR 746 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391].
9 Jaswant Singh Saluja v Chief Settlement Comr, New Delhi AIR 1971 SC 748, Jaswant Singh Saluja v Chief Settlement
Comr, New Delhi (1972) 4 SCC 78, Jaswant Singh Saluja v Chief Settlement Comr, New Delhi (1971) UJ 137; Shrawan Kumar
Jha v State of Bihar AIR 1991 SC 1117 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180], Shrawan Kumar
Jha v State of Bihar (1991) Supp 1 SCC 330, Shrawan Kumar Jha v State of Bihar (1991) Lab IC 1317; Anoop Jaiswal v
Government of India AIR 1984 SC 636 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21], Anoop Jaiswal v
Government of India (1984) 2 SCC 369 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21], Anoop Jaiswal v
186 186
Page
Government of India (1984) 1 Lab LJ 337 [LNIND 1984 SC 21] [LNIND 1984 SC 21] [LNIND 1984 SC 21]; Raj Restaurant v
Municipal Corporation of Delhi AIR 1982 SC 1550, Raj Restaurant v Municipal Corporation of Delhi (1982) 3 SCC 338, Raj
Restaurant v Municipal Corporation of Delhi (1982) 2 Scale 934; North Bihar Agency v State of Bihar AIR 1981 SC 1758, North
Bihar Agency v State of Bihar (1981) 3 SCC 131, North Bihar Agency v State of Bihar (1981) SCC (Cr) 651; Erusian Equipment
and Chemicals Ltd v State of West Bengal AIR 1975 SC 266 [LNIND 1974 SC 357] [LNIND 1974 SC 357] [LNIND 1974 SC
357], Erusian Equipment and Chemicals Ltd v State of West Bengal (1975) 1 SCC 70 [LNIND 1974 SC 357] [LNIND 1974 SC
357] [LNIND 1974 SC 357], Erusian Equipment and Chemicals Ltd v State of West Bengal (1975) 1 All LR 22.
10 As to the requirement of notice as an essential part of fair hearing see [005.055]-[005.059].
11 As to the requirement of hearing as an essential part of natural justice see [005.058]-[005.059].
12 State Bank of Patiala v SK Sharma AIR 1996 SC 1669 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC
2680]at 1681, State Bank of Patiala v SK Sharma (1996) 3 SCC 364 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND
1996 SC 2680], State Bank of Patiala v SK Sharma (1996) 3 JT 722.

ADMINISTRATIVE LAW/10. EFFECT OF FAILURE OF NATURAL JUSTICE/[005.139] Denial of rules of
natural justice
[005.139] Denial of rules of natural justice In cases of clear denial of natural justice, court may conclude
that prejudice has been caused to the party concerned and quash the order1. However, relief may be denied
by the courts to the petitioner if only a facet of natural justice has been ignored and no prejudice is thereby
caused to the petitioner2.
Similarly, the courts may refuse to quash an administrative order on the plea of lack of an opportunity to
cross examine witnesses or denial of a personal hearing3 if the affected party fails to raise the matter before
the concerned adjudicatory body and seeks to get the decision quashed on that ground at a later stage. This
amounts to implied waiver4.
Board of Technical Education, Uttar Pradesh v Dhanwantri Kumar AIR 1991 SC 271 [LNIND 1990 SC 626] [LNIND 1990 SC
626] [LNIND 1990 SC 626], Board of Technical Education, Uttar Pradesh v Dhanwantri Kumar (1990) All LJ 874 (orders made
by the Board cancelling examination results were quashed because the notices issued by the Board to these candidates were
so vague that they could not have defended themselves at the inquiry); Travancore Rayons Ltd v Union of India AIR 1971 SC
862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439], Travancore Rayons Ltd v Union of India (1969) 3 SCC
868 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439], Travancore Rayons Ltd v Union of India [1970] 3 SCR
257; Ram Narayan Kishori v University of Calcutta AIR 1982 Cal 1 [LNIND 1981 CAL 284] [LNIND 1981 CAL 284] [LNIND
1981 CAL 284], Ram Narayan Kishori v University of Calcutta (1982 86 Cal WN 146 (at an inquiry against students accused of
using unfair means at the examination, several norms of fair hearing were infringed, witnesses were not examined in the
presence of the concerned students; they were also not allowed to adduce rebuttal evidence; the Calcutta high court ruled that,
in the circumstances, the students were denied natural justice).
Kashinath Dikshita v Union of India (1986) 2 SLR 620 (the government failed to furnish to the petitioner copies of certain
documents which were relied upon to establish charges against him; quashing the order of dismissal passed against him, the
Supreme Court observed that the government was not able to satisfy us that no prejudice was occasioned to the appellant; the
Court assumed that the appellant was prejudiced by the non supply of copies of documents to him and the onus was placed on
the government to show that he was not prejudiced; the court also barred the Government from holding an inquiry afresh
because of long gap).
2 State Bank of Patiala v S K Sharma AIR 1996 SC 1669 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND 1996 SC
2680]at 1681, State Bank of Patiala v S K Sharma (1996) 3 SCC 364 [LNIND 1996 SC 2680] [LNIND 1996 SC 2680] [LNIND
1996 SC 2680], State Bank of Patiala v S K Sharma (1996) 3 JT 722 (the effect of violation of a facet of the rule of audi alteram
partem has to be examined from the stand point of prejudice; in other words, what the court/tribunal has to see is whether in the
totality of the circumstances, the delinquent officer/employee did or did not have a fair hearing) (as to the rule of audi alteram
partem see [005.054]); Chandrama Tewari v Union of India AIR 1988 SC 117 [LNIND 1987 SC 772] [LNIND 1987 SC 772]
[LNIND 1987 SC 772], Chandrama Tewari v Union of India (1987) Supp SCC 229, Chandrama Tewari v Union of India (1988)
SCC (L & S) 226 (an order of dismissal was not quashed even though certain materials were not supplied to the appellant at the
187 187
Page
inquiry stage because the Court concluded that it did not prejudice the appellant); KL Tripathi v State Bank of India AIR 1984
SC 273 [LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL Tripathi v State Bank of India (1984) 1 SCC 43
[LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283], KL Tripathi v State Bank of India (1984) 1 SCWR 150
[LNIND 1983 SC 283] [LNIND 1983 SC 283] [LNIND 1983 SC 283] (on the question whether absence of an opportunity to cross
examine witnesses would amount to violation of natural justice, the Supreme Court ruled that it would have to be established
that real prejudice was caused to the concerned person by the procedure followed by the adjudicatory body in question; when
no real prejudice has been caused to the party concerned by absence of an opportunity to cross examine witnesses, it does not
invalidate or vitiate the decision arrived at fairly); JMA Industries v Union of India AIR 1980 Del 200 [LNIND 1980 DEL 24]
[LNIND 1980 DEL 24] [LNIND 1980 DEL 24], JMA Industries v Union of India (1980) ILR 1 Del 339 (the high court refused to
quash the impugned order even though the court accepted that the show cause notice was inadequate as it only repeated the
statutory language without giving any facts; it was found doubtful if any actual prejudice had been caused to them by the
inadequacy of the show cause notice; however, the court did ask the concerned authority to give one more hearing to the
petitioners to show cause); Hira Nath Mishra v Principal, Rajendra Medical College, Ranchi AIR 1973 SC 1260 [LNIND 1973
SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113], Hira Nath Mishra v Principal, Rajendra Medical College, Ranchi (1973) 1
SCC 805 [LNIND 1973 SC 113] [LNIND 1973 SC 113] [LNIND 1973 SC 113]; Managing Director, ECIL Hyderabad v B
Karunakar AIR 1994 SC 1074 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059], Managing Director, ECIL
Hyderabad v B Karunakar (1993) 4 SCC 727 [LNIND 1993 SC 1059] [LNIND 1993 SC 1059] [LNIND 1993 SC 1059], Managing
Director, ECIL Hyderabad v B Karunakar (1993) 6 JT 1 (in case a copy of the inquiry report is not given to the employee and he
is dismissed from office, the court will consider the question whether any prejudice was caused to him or not on account of the
denial of the report to him; when, therefore, even after the furnishing of the report no different consequence would have
followed, it would be a perversion of justice to permit the employee to resume duty; therefore, a copy of the report must be
given to him and he be given an opportunity to show how he was prejudiced because of non supply of the report; the court
would not interfere if it comes to the conclusion that it would have made no difference to the ultimate findings; on the other
hand, the court would set aside the order of dismissal if it comes to the conclusion that the furnishing of the report would have
made a difference to the result of the case).
4 Krishan Lal v State of Jammu & Kashmir (1994) 4 SCC 422 [LNIND 1994 SC 277] [LNIND 1994 SC 277] [LNIND 1994 SC
277], Krishan Lal v State of Jammu & Kashmir (1995) 2 LLJ 718 [LNIND 1994 SC 277] [LNIND 1994 SC 277] [LNIND 1994 SC
277] (if a party does not claim before the adjudicative authority representation by a lawyer, then he cannot later make a
grievance thereof and claim quashing of the order on the ground of denial of legal representation); Ganesh Sugar Mills v State
of Uttar Pradesh AIR 1986 SC 743, Ganesh Sugar Mills v State of Uttar Pradesh (1986) 1 SCC 623, Ganesh Sugar Mills v
State of Uttar Pradesh (1986) SCC (Tax) 259 (the Supreme Court ruled that the notice in the instant case was vague and was,
thus, liable to the quashed but still the court refused to quash the notice on the ground that the question of vagueness of notice
had not been argued before the high court; instead, the Court asked the concerned authority to give the necessary details to the
petitioners before adjudicating upon the matter).

ADMINISTRATIVE LAW/10. EFFECT OF FAILURE OF NATURAL JUSTICE/[005.140] Failure to give
reasons
[005.140] Failure to give reasons Giving of reasons for making an order adversely affecting a person is
regarded as a component of the audi alteram partem rule1.
A strict view may be taken of non-communication of reasons to the party by the adjudicator. However, on the
other hand, a more flexible view may be taken and the order may not be quashed for failure to give reasons2.
1 Ajantha Industries v Central Board of Direct Taxes, New Delhi AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831]
[LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes, New Delhi (1976) 1 SCJ 435, Ajantha Industries v
Central Board of Direct Taxes, New Delhi [1976] 2 SCR 884 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC
831]. (under Income Tax, Act 1961 s 127, the board may transfer a case from one income tax officer to another after giving the
assessee a reasonable opportunity of being heard and after recording the reasons for doing so; merely recording of reasons in
the file is not sufficient; Travancore Rayons Ltd v Union of India AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439]
[LNIND 1969 SC 439], Travancore Rayons Ltd v Union of India (1969) 3 SCC 868 [LNIND 1969 SC 439] [LNIND 1969 SC 439]
[LNIND 1969 SC 439], Travancore Rayons Ltd v Union of India [1970] 3 SCR 257 (a case which involved assessment of excise
duty, the Supreme Court quashed the order of the government on account of failure to give reasons and remanded the case to
the government); Chowgule & Co (Hind) Pvt Ltd v Union of India AIR 1971 SC 2021, Chowgule & Co (Hind) Pvt Ltd v Union of
India (1971) 3 SCC 162; Mahabir Prasad Santosh Kumar v State of Uttar Pradesh AIR 1970 SC 1302 [LNIND 1970 SC 188]
[LNIND 1970 SC 188] [LNIND 1970 SC 188], Mahabir Prasad Santosh Kumar v State of Uttar Pradesh (1970) 72 Bom LR 342
(where the Supreme Court has characterised the non giving of reasons by the quasi judicial authorities as striking at the very
root of the rule of law); Bhagat Raja v Union of India AIR 1967 SC 1606 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND
188 188
Page
1967 SC 98], 1610, Bhagat Raja v Union of India [1967] 3 SCR 302 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC
98], Bhagat Raja v Union of India (1967) 2 SCA 253 [LNIND 1967 SC 98] [LNIND 1967 SC 98] [LNIND 1967 SC 98] (the
Central Government acting as the appellate authority affirmed the order of the state government which had rejected the
appellant's application for granting a mining lease; no reasons were given by any of the governments; the Court found that the
appellate authority had a special form which was used whenever a review application was to be rejected by it; the Court
quashed the order and directed the Central Government to decide the review application afresh). As to the rule of audi alteram
partem see [005.054].
2 Bombay Oil Industries Pvt Ltd v Union of India AIR 1984 SC 169, Bombay Oil Industries Pvt Ltd v Union of India (1984) 1
SCC 141, Bombay Oil Industries Pvt Ltd v Union of India [1983] 3 SCR 624 [LNIND 1983 SC 200] [LNIND 1983 SC 200]
[LNIND 1983 SC 200]; JMA Industries v Union of India AIR 1980 Del 200 [LNIND 1980 DEL 24] [LNIND 1980 DEL 24] [LNIND
1980 DEL 24], JMA Industries v Union of India (1980) ILR 1 Del 339 (the government refused to register the trade mark of the
petitioner as it was not in the public interest to register it without giving any reasons; the reasons, however, were on the record
though they were not communicated to the petitioner; the court refused to quash the government's decision simply because the
government failed to communicate these reasons to the petitioner; though the court deprecated the tendency of the
administrative authorities of not supplying reasons to the affected individual, yet it argued that it would be wasteful and unjust of
this court to refuse to see the reasons which were originally given in the order on the file and to allow the writ petition only
because before the writ petition was filed the reasons were not communicated); Rangnath v Daulatrao AIR 1975 SC 2146
[LNIND 1974 SC 440] [LNIND 1974 SC 440] [LNIND 1974 SC 440], Rangnath v Daulatrao (1975) 1 SCC 686 [LNIND 1974 SC
440] [LNIND 1974 SC 440] [LNIND 1974 SC 440], Rangnath v Daulatrao [1975] 3 SCR 99 [LNIND 1974 SC 440] [LNIND 1974
SC 440] [LNIND 1974 SC 440] (the appellant had sought to recover from his tenant the possession of land of which he was the
Inamdar which was abolished by the Hyderabad Abolition of Inams and Cash Grants Act 1954; the government denied him the
relief because of the abolition of Inams by the Acts by a non speaking order; the Supreme Court still upheld the order because
the matter did not involve adjudication of facts but rested on law and order and there was no error in that regard); Ahmedabad
Municipal Corpn v Ramanlal Govindram AIR 1975 SC 1187 [LNIND 1975 SC 115] [LNIND 1975 SC 115] [LNIND 1975 SC 115],
Ahmedabad Municipal Corpn v Ramanlal Govindram (1975) 1 SCC 778 [LNIND 1975 SC 115] [LNIND 1975 SC 115] [LNIND
1975 SC 115], Ahmedabad Municipal Corpn v Ramanlal Govindram [1975] 3 SCR 935 [LNIND 1975 SC 115] [LNIND 1975 SC
115] [LNIND 1975 SC 115] (a municipality passed an order of eviction against a tenant but did not communicate the reasons to
the party though they were on the record; without quashing the order, the court merely contended by saying that it showed
inefficiency and warned that it must not happen again); Woolcombers of India Ltd v Woolcombers Workers' Union AIR 1973 SC
2758 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251], Woolcombers of India Ltd v Woolcombers Workers'
Union (1974) 3 SCC 318 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251], Woolcombers of India Ltd v
Woolcombers Workers' Union [1974] 1 SCR 504 [LNIND 1973 SC 251] [LNIND 1973 SC 251] [LNIND 1973 SC 251] (the matter
involved a dispute between an employer and his employees with regard to wages; the industrial tribunal, while fixing wage
rates, failed to give reasons; the Court refused to set aside the award merely for failure of the tribunal to give reasons if there
was evidence on the record; the Court then went on to examine the record to find material in support of the tribunal's
conclusions; having failed to find such material, it did not ultimately uphold the award of the tribunal; the Court did however
observe that the absence of reasons in support of conclusion is indeed a serious flaw in the award); Bhagat Ram Patanga v
State of Punjab AIR 1972 SC 1571 [LNIND 1972 SC 215] [LNIND 1972 SC 215] [LNIND 1972 SC 215], Bhagat Ram Patanga v
State of Punjab (1972) 2 SCC 170 [LNIND 1972 SC 215] [LNIND 1972 SC 215] [LNIND 1972 SC 215], Bhagat Ram Patanga v
State of Punjab [1973] 1 SCR 92 [LNIND 1972 SC 215] [LNIND 1972 SC 215] [LNIND 1972 SC 215] (the government passed
an order removing a member from a municipality without giving reasons for his removal; since the state government had
produced the relevant file before the high court, the Court was satisfied that there had been a proper consideration of the
petitioner's explanation and that there had been no violation of natural justice); Nand Ram Hunat Ram v Union of India AIR
1966 SC 1922 [LNIND 1966 SC 102] [LNIND 1966 SC 102] [LNIND 1966 SC 102], Nand Ram Hunat Ram v Union of India
[1966] Supp SCR 104 (the government found that the partners of a firm to whom a mine was leased out by the government
were quarrelling among themselves and that wages of labours had not been paid and the mine was being flooded because
essential services had stopped working; in the circumstances, the government terminated the lease and took over the mine
without giving any reasons; the Court upheld the government's action and found that the facts were quite clear and well known
and that it was satisfied on the facts before it that the governmental action was justified); Madhya Pradesh Industries Ltd v
Union of India AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190], Madhya Pradesh
Industries Ltd v Union of India [1996] 1 SCR 466 [LNIND 1996 SC 92] [LNIND 1996 SC 92] [LNIND 1996 SC 92], Madhya
Pradesh Industries Ltd v Union of India (1996) 1 SCJ 204.

ADMINISTRATIVE LAW/10. EFFECT OF FAILURE OF NATURAL JUSTICE/[005.141] Curing failure of
natural justice at appellate stage
[005.141] Curing failure of natural justice at appellate stage Where a person has not had a fair trial by an
appropriate trial body, it is not open to the appellate body to discard its appellate function and itself give him
that fair trial1. However, where the appellate body exercises the power of re-hearing that is, when it exercises
both the appellate and original powers, the above stated principle may not apply2.
189 189
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Generally, in India an order that is void because of failure of natural justice at the initial stage cannot be
cured even if natural justice is followed at the appellate stage3. An order that is null and void cannot become
valid through confirmation by a higher body on appeal4. However, in some exceptional circumstances, failure
of natural justice at the initial level may be cured when the court itself gives a hearing5 to the affected person
in a writ petition. In this way, the above mentioned principle has been diluted to some extent6. The reason
behind the diluted approach is that breach of natural justice is now regarded as amounting to jurisdictional
error7.
1 Leary v National Union of Vehicle Builders [1971] Ch 34 at 54-55, Leary v National Union of Vehicle Builders [1970] 2 All ER
713 at 724-725 (failure of natural justice by the lower tribunal is not cured by providing natural justice to the appellant by the
appellate tribunal; if one accepts the contention that a defect of natural justice in the trial body can be cured by the presence of
natural justice in the appellate body this has the result of depriving the member of his right of appeal from the expelling body; if
the rules and the law combine to give the member the right to a fair trial and the right of appeal, he cannot be told to be satisfied
with an unjust trial and a fair appeal; even if the appeal is treated as a hearing de novo, the member is being stripped of his right
to appeal to another body from the effective decision to expel him); Lloyd v Mcmahon [1987] AC 625, Lloyd v Mcmahon [1987]
1 All ER 1118 HL, (failure of natural justice at the lower level may be cured only if there is an appeal mechanism to rehear the
matter, take evidence on oath, does not limit introduction of further material, fully examines the whole merits and is not confined
merely to a review of evidence which was available to the lower adjudicatory body and not if the appeal is only on law and the
defects in the initial inquiry are prejudicial to the aggrieved person).
2 Calvin v Carr [1980] AC 574, Calvin v Carr [1979] 2 All ER 440 PC, (in consensual bodies, such as social clubs, if the
proceedings at both the levels, original as well as appellate, satisfy the demands of natural justice, then the impugned order
may be upheld; what is required is examination of the hearing process, original and appellate as a whole and a decision on the
question as to whether after it has been gone through the complainant has had a fair deal of the kind that he bargained for);
Stringer v Minister of Housing and Local Government [1971] 1 All ER 65, Stringer v Minister of Housing and Local Government
[1970] 1 WLR 1281 (a statutory provision provided for appeal from the local planning authority to the minister and a further
provision provided that, on appeal, the Minister could deal with the application as if it had been made to him in the first instance;
on the basis of these provisions, the court ruled that when the decision of the local planning authority was void, the Minister
could rehear the matter de novo, deal with the application and make a decision on it).
3 Institute of Chartered Accountants of India v L K Ratna AIR 1987 SC 71 [LNIND 1986 SC 394] [LNIND 1986 SC 394] [LNIND
1986 SC 394], Institute of Chartered Accountants of India v L K Ratna (1987) 4 SCC 537 [LNIND 1987 SC 680] [LNIND 1987
SC 680] [LNIND 1987 SC 680], Institute of Chartered Accountants of India v L K Ratna (1986) JT 671 (a professional person
was punished for his professional misconduct, the damage to his professional reputation was immediate and far reaching which
could never be completely salvaged; therefore, punishment imposed on a professional without giving him an opportunity of
hearing violates natural justice and an appeal to the high court under the relevant statute could not cure such a defect; the
Supreme Court cautioned that it was necessary to ensure that there is no breach of fundamental procedure in the original
proceeding and to avoid treating an appeal as an over all substitute for the original proceeding); Farid Ahmed Abdul Samad v
Municipal Corporation of the City of Ahmedabad AIR 1976 SC 2095 [LNIND 1976 SC 240] [LNIND 1976 SC 240] [LNIND 1976
SC 240], Farid Ahmed Abdul Samad v Municipal Corporation of the City of Ahmedabad (1976) 3 SCC 719 [LNIND 1976 SC
240] [LNIND 1976 SC 240] [LNIND 1976 SC 240], Farid Ahmed Abdul Samad v Municipal Corporation of the City of
Ahmedabad (1976) 2 SCWR 172 (if the order was invalid at its inception, its invalidity cannot be cured by its approval by the
standing committee and confirmation of the same by the state government; as regards appeal to the court, the Supreme Court
stated that appeal did not lie in all matters which could be considered by the commissioner; therefore, the appeal was not a
complete substitute for a right to personal hearing by the commissioner); Shri Mandir Sita Ramji v Govt of Delhi AIR 1974 SC
1868 [LNIND 1974 SC 209] [LNIND 1974 SC 209] [LNIND 1974 SC 209]; G Rajalakshmi v Appellate Authority AIR 1980 AP
100 [LNIND 1979 AP 52] [LNIND 1979 AP 52] [LNIND 1979 AP 52](high court was called upon to consider the question that if
the trial tribunal does not consider all the objections filed before it, whether the appellate tribunal can consider the merits of the
lis like the original authority and record findings thereon; the high court ruled that a failure of natural justice cannot be cured by
sufficiency of natural justice in the appellate body and emphasised that such an approach would curb the tendency of the
tribunals to give a short shrift to the proceedings before them; therefore, the proper course in such a case would be to remit the
matter to the original tribunal and, thus, vindicate and strengthen the larger principle of natural justice); Kashiram Dalmia v
State AIR 1978 Pat 265; Laxmidhar v State of Orissa AIR 1974 Ori 127 [LNIND 1973 ORI 37] [LNIND 1973 ORI 37] [LNIND
1973 ORI 37](when the trial body does not observe natural justice, the omission cannot be remedied at the appellate level by
giving a sufficient hearing to the concerned person; where evidence was not received properly at the initial level, the entire
proceeding stood vitiated because its foundation was not in accordance with law).
4 Mysore State Road Transport Corpn v Mirza Khasim AIR 1977 SC 734 [LNIND 1976 SC 495] [LNIND 1976 SC 495] [LNIND
1976 SC 495].
6 Olga Tellis v Bombay Municipal Corp AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215],
Olga Tellis v Bombay Municipal Corp (1985) 3 SCC 545 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215],
Olga Tellis v Bombay Municipal Corp (1986) Cr LR (SC) 23 (the municipal commissioner failed to give any notice to the
squatters on municipal land before seeking to evict them; the court ruled that giving of notice in the situation was mandatory;
however, instead of quashing the commissioner's decision, the court ruled that the failure of natural justice at the
190 190
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commissioner's level was cured by a hearing given by it to the affected persons); Charan Lal Sahu v Union of India AIR 1990
SC 1480 [LNIND 1989 SC 639] [LNIND 1989 SC 639] [LNIND 1989 SC 639](where sufficient opportunity is available when
review application is heard on notice, no further opportunity is necessary and it cannot be said that injustice has been done);
Union Carbide Corporation v Union of India AIR 1992 SC 248, Union Carbide Corporation v Union of India (1991) 4 SCC 584,
Union Carbide Corporation v Union of India [1991] Supp 1 SCR 251.
7 Ravi S Naik v Union of India AIR 1994 SC 1558, 1568, Ravi S Naik v Union of India (1994) 2 SCC Supp 641, Ravi S Naik v
Union of India (1994) 2 SCJ 21.

ADMINISTRATIVE LAW/10. EFFECT OF FAILURE OF NATURAL JUSTICE/[005.142] Moulding of relief
[005.142] Moulding of relief Ordinarily. when an order is made in violation of natural justice, it is void in the
sense of being liable to be avoided by a court with retroactive effect. So, when a court declares the order
void, the court order goes back to the date when the impugned order had been made. The order is held void
ab initio and status quo at the date of making of the order is thereby restored1. The authority may then start
the proceeding afresh2.
In giving relief, the courts enjoy discretion and they may tailor the ultimate relief to suit the totality of
circumstances. The court may declare an order to be null and void. However, there are cases where in spite
of failure of the audi alteram partem3, the court has directed the decision making authority to give a hearing
to the party concerned and decide the matter accordingly instead of quashing the impugned order and
restoring the parties to status quo ante4.
High courts and the Supreme Court, in their writ jurisdiction, enjoy the power to mould the relief according to
the exigencies of the factual situation5. For instance, when a disciplinary proceeding against a public servant
is quashed for want of audi alteram partem, the concerned government servant may be restored to his
original position, the disciplinary authority being free thereafter to initiate a fresh action against him if it so
likes6. However, this is not an invariable rule and in a suitable or exceptional situation, while the government
servant is restored to his original position, the court may not restore to him the full benefits7 or may bar the
authority from initiating any fresh inquiry against him8.
1 Nawab Khan (an order is null and void if the statute clothing the administrative tribunal with power, conditions it with the
obligation to hear, expressly or by implication; an order which infringes a fundamental freedom passed in violation of the audi
alteram partem rule is a nullity; when a competent Court holds such officials act or order invalid or sets it aside, it operates as if
the impugned act or order was never valid).
2 Dhakeswari Cotton Mills Ltd v Comr of Income Tax, West Bengal AIR 1965 SC 65 [LNIND 1964 SC 170] [LNIND 1964 SC
170] [LNIND 1964 SC 170], Dhakeswari Cotton Mills Ltd v Comr of Income Tax, West Bengal [1955] 1 SCR 941 [LNIND 1954
SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]; Suprintendent (Tech I) Central Excise v Pratap Rai, AIR 1978 SC 1244
[LNIND 1978 SC 139] [LNIND 1978 SC 139] [LNIND 1978 SC 139], Suprintendent (Tech I) Central Excise v Pratap Rai, (1978)
SCC (Cr) 371, Suprintendent (Tech I) Central Excise v Pratap Rai, (1978) SCJ 490; Shivji Nathubhai v Union of India AIR 1960
SC 606 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13], Shivji Nathubhai v Union of India (1960) SCJ 579
[LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13], Shivji Nathubhai v Union of India [1960] 2 SCR 775 [LNIND
3 As to the rule of audi alteram partem see [005.054].
4 Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25](the
passport could not be impounded without giving a hearing to the passport holder; nevertheless, the Court did not quash the
order impounding the passport of the petitioner even though failure of natural justice had occurred, as the Attorney General
gave an undertaking that the government would comply with natural justice; returning the passport to the petitioner might have
led her to leave the country, frustrating any final adverse order passed by the government after hearing; further, even if the
passport would have been ordered to be returned to her, the government could have immediately passed a fresh order
impounding the passport); Swadeshi Cotton Mills v Union of India AIR 1981 SC 818 [LNIND 1981 SC 28] [LNIND 1981 SC 28]
[LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India (1981) 1 SCC 664 [LNIND 1981 SC 28] [LNIND 1981 SC 28]
[LNIND 1981 SC 28], Swadeshi Cotton Mills v Union of India [1981] 2 SCR 533 [LNIND 1981 SC 28] [LNIND 1981 SC 28]
[LNIND 1981 SC 28] (the appellant mill was taken over by the Central Government under the Industries (Development and
191 191
Page
Regulation) Act 1951, without giving a hearing to the owner; the Court ruled that hearing ought to have been given to the mill
owner; that decisions in violation of the audi alteram partem rule, where it is an implied requirement, are null and void;
nevertheless, in the instant case, the Court desisted from striking down the order as invalid on that account; the Court referred
the matter back to the Government to give a full, fair and effective hearing to the aggrieved party on all aspects touching the
validity and/or correctness of the order to take over and thereafter to take a fresh decision or necessary remedial action; this, in
effect, boils down to a post decisional hearing rather than pre decisional hearing); S L Kapoor v Jagmohan AIR 1981 SC 136
[LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], S L Kapoor v Jagmohan (1980) 4 SCC 379 [LNIND 1980
SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], S L Kapoor v Jagmohan [1981] 1 SCR 746 [LNIND 1980 SC 391] [LNIND
1980 SC 391] [LNIND 1980 SC 391] (a municipality was superseded without giving it a hearing; the Supreme Court thought that
hearing ought to have been given before superseding the municipality; however, the order of supercession was not set aside
and the committee was not reinstated leaving the Administration free to take action again if it so wanted); P Ksailingam v PSG
College of Technology AIR 1981 SC 789 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P Ksailingam v PSG
College of Technology (1981) 1 SCC 405 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P Ksailingam v PSG
College of Technology [1981] 2 SCR 490 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9] (the Government passed
an order reinstating a teacher in a private college without giving a hearing to the management; the Court ruled that there was a
breach of natural justice but even then, the Court did not think it necessary to quash the order and remit the case to the
Government for rehearing and allowed the government order to stand); D Subba Rao v State of Andhra Pradesh AIR 1975 SC
94, D Subba Rao v State of Andhra Pradesh (1975) 4 SCC 808, D Subba Rao v State of Andhra Pradesh (1974) UJ 143 (the
state government removed the president of a panchayat samiti, a statutory body, without giving him a hearing; without quashing
the order, the Supreme Court ruled that the petitioner be given an opportunity to submit his representation and the same be
considered by the government; in the meantime, the order of dismissal was provisionally to remain in force, pending the fresh
hearing by the government within a specified time).
5 See the Constitution of India arts 226 and 32 respectively (see generally[80]CONSTITUTIONAL LAW).
6 Virendra Kumar v Union of India AIR 1981 SC 947, Virendra Kumar v Union of India (1981) 1 SCC 485, Virendra Kumar v
Union of India (1981) 2 SCJ 92 (an order of termination of service was set aside because of failure of natural justice and the
person concerned was reinstated in service and awarded salary from the date of termination of service); Anand Narain Shukla
v State of Madhya Pradesh AIR 1969 SC 1923, Anand Narain Shukla v State of Madhya Pradesh (1980) 1 SCC 252 [LNIND
1979 SC 315] [LNIND 1979 SC 315] [LNIND 1979 SC 315], Anand Narain Shukla v State of Madhya Pradesh [1980] 1 SCR
196 [LNIND 1979 SC 315] [LNIND 1979 SC 315] [LNIND 1979 SC 315]; Mafatlal Narandas Barot v J D Rathod, Divisional
Controller, State Road Transport, Mehsana AIR 1966 SC 1364 [LNIND 1965 SC 372] [LNIND 1965 SC 372] [LNIND 1965 SC
372], Mafatlal Narandas Barot v J D Rathod, Divisional Controller, State Road Transport, Mehsana (1966) 1 Lab LJ 437,
Mafatlal Narandas Barot v J D Rathod, Divisional Controller, State Road Transport, Mehsana (1966) SCD 869; Devendra
Pratap Narain Rai Sharma v State of Uttar Pradesh AIR 1962 SC 1334 [LNIND 1961 SC 348] [LNIND 1961 SC 348] [LNIND
1961 SC 348], Devendra Pratap Narain Rai Sharma v State of Uttar Pradesh (1962) 2 SCJ 282, Devendra Pratap Narain Rai
Sharma v State of Uttar Pradesh [1962] Supp 1 SCR 315.
7 The Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narain Vajpayee AIR 1980 SC 840 [LNIND 1980 SC 13]
(1980) 3 SCC 459 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13], The Managing Director, Uttar Pradesh
Warehousing Corpn v Vijay Narain Vajpayee (1980) 1 SCWR 381 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC
13] (the high court had ordered reinstatement of the employee, dismissed from service without observing natural justice, with
full back wages; the Supreme Court, however, held that the writ was not an appropriate remedy for ordering full wages; that if
after termination of the employment, the workman/employee was gainfully employed elsewhere, it was to be considered as one
of the important factors in determining whether or not reinstatement must be with full back wages with continuity of
employment); The Divisional Personnel Officer, Western Railway, Kota v Sundar Dass AIR 1981 SC 2177 [LNIND 1981 SC
410] [LNIND 1981 SC 410] [LNIND 1981 SC 410], The Divisional Personnel Officer, Western Railway, Kota v Sundar Dass
(1981) 4 SCC 563 [LNIND 1981 SC 410] [LNIND 1981 SC 410] [LNIND 1981 SC 410], The Divisional Personnel Officer,
Western Railway, Kota v Sundar Dass [1982] 1 SCR 937 (a distinction may be made between a situation when the employee is
under suspension and when he is not, pending disciplinary proceedings against him; in the former case, if the government
decides to take back the employee, he gets his full salary; however, in case the authority concerned decides to hold a fresh
hearing against the employee on the same charges, then as provided in the Central Services (Classification, Control and
Appeal) Rules 1965, the government servant must be deemed to be under suspension from the date of the original order of
dismissal); Devendra Pratap Narain Rai Sharma v State of Uttar Pradesh AIR 1962 SC 1334 [LNIND 1961 SC 348] [LNIND
1961 SC 348] [LNIND 1961 SC 348], Devendra Pratap Narain Rai Sharma v State of Uttar Pradesh (1962) 2 SCJ 282,
Devendra Pratap Narain Rai Sharma v State of Uttar Pradesh [1962] Supp 1 SCR 315 (where, however, the employees is not
under suspension till the day of his dismissal, the judicial approach has generally been to logically follow the result of quashing,
namely, his reinstatement with full back salary).
8 Union of India v MB Patnaik AIR 1981 SC 858 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72], Union of India
v MB Patnaik (1981) 2 SCC 159 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72], Union of India v MB Patnaik
(1981) SCC Lab 296 (the Court prohibited a fresh inquiry having regard to the long lapse of time of 20 years since the alleged
offences were committed); Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC
35] [LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC
35] [LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) SCC Lab 342 (taking into account the minor
infraction of duty of the delinquent employee and his low status, the Court did not find conducting a fresh inquiry as worthwhile;
however, in the interest of justice and fairplay, the Court itself took the exceptional course of imposing the minor penalty of
withholding his two increments); Subramaniam v Collector of Customs AIR 1979 SC 2178; P Ksailingam v PSG College of
Technology AIR 1981 SC 789 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P Ksailingam v PSG College of
Technology (1981) 1 SCC 405 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P Ksailingam v PSG College of
Technology [1981] 2 SCR 490 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9].
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Page 1

ADMINISTRATIVE LAW/11. ADMINISTRATIVE ADJUDICATION/(1) INTRODUCTION/[005.143]
Adjudicatory bodies
[005.143] Adjudicatory bodies The term 'administrative adjudication' denotes the system of deciding
disputes by bodies other than the courts. Traditionally, the courts adjudicate the disputes either between two
individuals, or between the state and the individual. The Constitution provides for a Supreme Court at the
apex of the judicial system1 and a high court for each state2. Each state will also have district and
subordinate courts3. The subordinate courts function under the control and supervision of the respective high
court4.
Disputes are resolved, by apart from the abovementioned judicial system, by an alternative system
comprising adjudicatory bodies ranging from tribunals5 to administrative officers exercising quasi-judicial
powers6.
A quasi-judicial body is a statutory body empowered to decide a dispute. The decision of a non-statutory
adjudicatory body may not have any binding force7.
The Constitution recognises the adjudicatory bodies by providing for filing of appeals in the Supreme Court
from courts and tribunals8 and vesting high courts with a supervisory power over courts and tribunals within
its territorial jurisdiction9.
Structurally, the adjudicatory bodies are categorised as follows:
(1) Tribunals constituted under the Constitution to decide disputes and complaints with respect to
recruitment and conditions of service of persons appointed to public services and posts in
connection with the affairs of the Centre or a state10;
(2) Tribunals constituted under the Constitution to decide disputes with respect to taxes, Foreign
Exchange, Customs, Industrial and Labour Disputes, Land Reforms, Urban Land Ceiling,
Election of legislators, Foodstuffs including concomitant offences against such laws as also
incidental matters11;
(3) Other tribunals12; and
(4) Administrative officials exercising adjudicatory functions13.
1 Constitution of India arts 124-147 see[80]CONSTITUTIONAL LAW.
4 Constitution of India arts 227 and 235. As to the supervision of high courts see [005.211] and following.
5 As to interpretation of the term 'tribunal' see [005.144] and following.
6 Associated Cement Co Ltd v P N Sharma AIR 1965 SC 1595 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964 SC
346], Associated Cement Co Ltd v P N Sharma (1965) 1 SCA 723 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964
SC 346], Associated Cement Co Ltd v P N Sharma (1965) 1 Lab LJ 433 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND
1964 SC 346] (although the state, as the sovereign body, transfers its judicial functions and powers to the courts, it does not
mean that the state cannot create any other mechanism for the settlement of disputes); see also S P Sampath Kumar v Union
of India AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500], S P Sampath Kumar v Union of
India (1987) 1 SCC 124 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC 500], S P Sampath Kumar v Union of
India (1987) SCJ 401. As to meaning of quasi- judicial see [005.148].
7 State of Himachal Pradesh v Raja Mahendra Pal AIR 1999 SC 1786 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND
1999 SC 328], State of Himachal Pradesh v Raja Mahendra Pal (1999) 4 SCC 43 [LNIND 1999 SC 328] [LNIND 1999 SC 328]
[LNIND 1999 SC 328], State of Himachal Pradesh v Raja Mahendra Pal (1999) 1 SCJ 680 [LNIND 1999 SC 328] [LNIND 1999
SC 328] [LNIND 1999 SC 328].
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Page 2
8 Ie under the Constitution of India art 136: see [005.242] and following.
9 Ie under the Constitution of India art 227: see [005.212].
10 Ie under the Constitution of India art 323 A: see [005.144].
11 Ie under the Constitution of India art 323 B: see [005.145].
12 As to 'other tribunals' see [005.145].
13 As to administrative officials exercising adjudicatory functions see [005.147].

Administrative tribunals
[005.144] Administrative tribunals The Constitution empowers the Parliament to frame laws to provide for
adjudication, by tribunals, of disputes and complaints with respect to recruitment and conditions of service of
persons appointed to public services and posts in connection with the affairs of the Centre, or a State, or any
local authority, or any other authority within the territory of India, or under the control of the Government of
India, or any other corporation owned or controlled by the government1.
Central Administrative Tribunal (CAT) as well as State Administrative Tribunals (SAT) are established under
the provisions of the Administrative Tribunals Act 1985 enacted by Parliament2. The tribunals are
autonomous bodies independent of the executive power and enjoy the status equivalent to that of a high
court3, and comprises a mixture of judicial and administrative persons4. Appeals from the tribunals lie
straight to the Supreme Court5.
However, the decisions of the abovementioned tribunal are subject to the writ jurisdiction and supervisory
jurisdiction of both the Supreme Court and the high court6.
1 Ie the Constitution of India art 323 A. SP Sampath Kumar v Union of India AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND
1986 SC 500] [LNIND 1986 SC 500], SP Sampath Kumar v Union of India (1987) 1 SCC 124 [LNIND 1986 SC 500] [LNIND
1986 SC 500] [LNIND 1986 SC 500], SP Sampath Kumar v Union of India (1987) SCJ 401; Union of India v Parma Nanda AIR
1989 SC 1185 [LNIND 1989 SC 154] [LNIND 1989 SC 154] [LNIND 1989 SC 154], Union of India v Parma Nanda (1989) 2
SCC 177 [LNIND 1989 SC 154] [LNIND 1989 SC 154] [LNIND 1989 SC 154], Union of India v Parma Nanda (1989) 2 Lab LJ
57; L Chandra Kumar v Union of India AIR 1997 SC 1125 [LNIND 1997 SC 488] [LNIND 1997 SC 488] [LNIND 1997 SC 488],
L Chandra Kumar v Union of India (1997) 3 SCC 261 [LNIND 1997 SC 488] [LNIND 1997 SC 488] [LNIND 1997 SC 488], L
Chandra Kumar v Union of India (1997) Lab IC 1069.
2 Ie the Administrative Tribunals Act 1985 s 4.
3 See SP Sampath Kumar v Union of India AIR 1987 SC 386 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC
500], SP Sampath Kumar v Union of India (1987) 1 SCC 124 [LNIND 1986 SC 500] [LNIND 1986 SC 500] [LNIND 1986 SC
500], SP Sampath Kumar v Union of India (1987) SCJ 401.
Union of India v SL Abbas AIR 1993 SC 2444 [LNIND 1993 SC 399] [LNIND 1993 SC 399] [LNIND 1993 SC 399], Union of
India v SL Abbas (1993) 4 SCC 357 [LNIND 1993 SC 399] [LNIND 1993 SC 399] [LNIND 1993 SC 399], Union of India v SL
Abbas [1993] 3 SCR 427; MB Mazumdar v Union of India AIR 1990 SC 2263 [LNIND 1990 SC 444] [LNIND 1990 SC 444]
[LNIND 1990 SC 444], MB Mazumdar v Union of India (1990) 4 SCC 501 [LNIND 1990 SC 444] [LNIND 1990 SC 444] [LNIND
1990 SC 444], MB Mazumdar v Union of India [1990] 3 SCR 946 [LNIND 1990 SC 444] [LNIND 1990 SC 444] [LNIND 1990 SC
444].
(Central Administrative Tribunal (CAT) consists of a chairman, several vice-chairmen and members of two categories--judicial
and administrative. The chairman is a person who is or has been a High Court Judge. All appointments to CAT are made by the
President in consultation with the Chief Justice of India.
CAT sits in benches--each bench consisting of a judicial member and an administrative member. No member of CAT can be
194
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removed from office except by an order made by the President on the ground of proved misbehavior or incapacity after an
inquiry made by a Supreme Court Judge. These provisions give complete autonomy to CAT.
CAT is required to follow natural justice in its procedure; is subject to the jurisdiction of the Supreme Court under arts 32 and
136, but not to the writ jurisdiction of the high court under art 226. Appeals from the Tribunal lie to the Supreme Court. CAT has
power to summon witnesses and commit persons for its contempt.
CAT thus provides a specialized forum for adjudication of service matters relating to the employees of the Central Government
and has relieved the high courts from the load of such cases. It has quickened the disposal of service disputes between the
Central. Government and its employees).
5 Ie under the Constitution of India art 136.
6 L Chandra Kumar v Union of India AIR 1997 SC 1125 [LNIND 1997 SC 488] [LNIND 1997 SC 488] [LNIND 1997 SC 488], L
Chandra Kumar v Union of India (1997) Lab IC 1069.

Administrative tribunals for specified matters
[005.145] Administrative tribunals for specified matters The Constitution1 empowers the appropriate
legislature to make laws to provide for adjudication or trial by tribunals of any disputes, complaints or
offences with respect to all or any of the specified matters2. The specified matters are:
(1) Taxes3
(2) Foreign Exchange, import and export across frontiers 4;
(3) Industrial and Labour Disputes5;
(4) Land Reforms6;
(5) Urban Land Ceiling7;
(6) Election of legislators8; and
(7) production, procurement, supply and distribution of essential foodstuff9.
The abovementioned provision overrides other constitutional provisions or any other law in force10. However,
the tribunal is subject to the jurisdiction of the Supreme Court11 as well as the high court12.
The chief difference between the abovementioned tribunals and tribunals constituted to decide disputes and
complaints with respect to recruitment and conditions of service of persons is that the latter is governed by
requisite laws made only by Parliament and the former is governed by laws made either by Parliament or the
state legislature empowered with respective legislative power13.
1 The Constitution of India art 323B: see[80]CONSTITUTIONAL LAW.
2 The Constitution of India art 323B(2).
3 The Constitution of India art 323B(2) (a).
4 The Constitution of India art 323B(2)(b).
5 The Constitution of India art 323B(2)(c).
6 The Constitution of India art 323B(2)(d).
7 The Constitution of India art 323B(2)(e).
8 The Constitution of India art 323B(2)(f).
9 The Constitution of India art 323B(2)(g).

195
Page 4
10 The Constitution of India art 323B(4).
11 Ie under the Constitution of India arts 32 and 136: see [005.242].
Chandra Kumar v Union of India (1997) Lab IC 1069; see Awadhesh Kumar Singh v State AIR 1988 Pat 273.
13 See [005.144] (for instance, the Customs, Excise and Gold (Control) Appellate Tribunal (CEGAT) is established under the
provision of the Constitution to hear appeals from the decisions of the lower customs and excise authorities).

ADMINISTRATIVE LAW/11. ADMINISTRATIVE ADJUDICATION/(1) INTRODUCTION/[005.146] Other
tribunals
[005.146] Other tribunals Separation of executive and judicial functions is one of the directive principles
narrated in the Constitution1. Similarly separation of powers is governed by the consitutional doctrine2.
If disputes between citizens and the government were to be decided by adjudicatory bodies being an integral
part of the administration, it would give rise to bias in the adjudicating body towards the administration and
against the citizen3.
A tribunal is established by statutory provisions and assigned a sphere of jurisdiction to operate4. Some of
the tribunals established by statutes are:
(1) Monopolies and Restrictive Trade Practices Commission5;

(2) Board of Industrial and Financial Reconstruction6;
(3) Company Law Board7;
(4) Railway Claims Tribunal8;
(5) Income Tax Appellate Tribunal9;
(6) Consumer Disputes Redressal Commission10;
(7) Debts Recovery Tribunal11;
The tribunals12 mentioned above are subject to judicial supervision under certain constitutional provisions13.
1 Ie the Constitution of India art 50 (the state shall take steps to separate the judiciary from the executive in the public services
of the State). As to directive principles see[80]CONSTIUTIONAL LAW.
2 See note 1 above.
3 As to rule against bias see [005.074].
4 See notes 5-11 below.
5 Ie the Monopolies and Restrictive Trade Practices Act 1969 (in the area of economic regulation, the Monopolies and
Restrictive Trade Practices Commission adjudicates upon complaints of unfair and restrictive trade practices).
6 Ie the Sick Industrial Companies Act 1985 (the Board of Industrial and Financial Reconstruction (BIFR) has lawyers and other
professionals as its members).
7 Ie the Indian Companies Act 1956 (Company Law Board, a specialised body charged with the responsibility to act as the
watchdog over corporate process).
8 Ie the Railway Claims Tribunal Act 1987 (the Railway Claims Tribunal adjudicates upon claims against the Railways arising
out of accidents to trains carrying passengers. A High Court Judge (sitting or retired) is appointed as its Chairman).
9 Ie the Income Tax Act 1961 (the Income Tax Appellate Tribunal composed of judicial and accountant members hears appeals
against assessment of income tax by lower income-tax officials; a judicial member is the Chairman of the tribunal): see
[280]TAXATION AND REVENUE.
196
Page 5
10 Ie the Consumer Protection Act 1980 ((i) District Consumer Disputes Redressal Forum; (ii) State Consumer Disputes
Redressal Commission; and (iii) National Consumer Disputes Redressal Commission adjudicates complaints by the
consumers): see[85]CONSUMER PROTECTION.
11 Ie the Recovery of Debts Due to Banks and Financial Institutions Act 1993 (known shortly as RDB Act 1993 s 17 vests
exclusive jurisdiction in the Debts Recovery Tribunal to entertain and decide applications from banks and financial institutions
for recovery of debts due to them. under s 18 of the Act, no other court has jurisdiction in relation to the matters falling under s
17; But the Supreme Court and the High Courts exercise power under arts 32, 136, 226 and 227. Once the Tribunal passes an
order that the debt is due, the tribunal issues a certificate to the Recovery officer for recovery of the debt); see Allahabad Bank
v Canara Bank [2000] 2 LRI 207;; Allahabad Bank v Canara Bank AIR 2000 SC 1535 [LNIND 2000 SC 2274] [LNIND 2000 SC
2274] [LNIND 2000 SC 2274]; (the provisions of RDB Actss 17 and 18 are exclusive so far as the question of adjudication of the
liability of Defendant to the Appellant Bank is concerned); see also Hara Parbati Cold Storage Pvt Ltd v UCO Bank (2000) 8 JT
(SC) 239; Bank of Tokyo-Mitsubishi Ltd v Chembra Estates Bombay AIR 2000 Bom 170.
12 As to the concept of tribunals for purposes of judicial review see [005.211] and [005.246].
13 Ie under the Constitution of India arts 32, 136, 226 and 227: see [005.210] and following. See Associated Cement
Companies Ltd v P N Sharma AIR 1965 SC 1595 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964 SC 346],
Associated Cement Companies Ltd v P N Sharma [1965] 2 SCR 366 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND 1964
SC 346], Associated Cement Companies Ltd v P N Sharma (1965) 1 LLJ 433 [LNIND 1964 SC 346] [LNIND 1964 SC 346]
[LNIND 1964 SC 346]; All Party Hill Leaders' Conference, Shillong v WA Sangma AIR 1977 SC 2155 [LNIND 1977 SC 264]
[LNIND 1977 SC 264] [LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA Sangma (1977) 4 SCC 161
[LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA Sangma
[1978] 1 SCR 393 [LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264] (the Supreme Court has stated that the
expression 'tribunal' in art 136 would include within its ambit 'all adjudicating bodies, provided they are constituted by the state
and are invested with judicial as distinguished from purely administrative or executive functions).

ADMINISTRATIVE LAW/11. ADMINISTRATIVE ADJUDICATION/(1) INTRODUCTION/[005.147] Officials
acting as adjudicators
[005.147] Officials acting as adjudicators Besides tribunals, administrative officers are empowered to
exercise adjudicatory powers along with their administrative powers1. For instance, the Passport Authority
can impound a passport in the interest of the public2. Similarly, the Central Government, or the Chief
Controller of Imports and Exports, can debar a person from importing, or receiving import licences3. The
initial adjudication, relating to control and regulation of foreign dealings, under the Foreign Exchange
Regulation Act 1973, is entrusted with the Director of Enforcement4.
The Supreme Court, with a view to enable the administrator to base his decision objectively, has evolved
certain safeguards, inter alia, the rule against bias5.
1 Hindustan Petroleum Corpn v Yashwant Gajanan Joshi AIR 1991 SC 933 [LNIND 1990 SC 763] [LNIND 1990 SC 763]
[LNIND 1990 SC 763], Hindustan Petroleum Corpn v Yashwant Gajanan Joshi (1991) Supp 2 SCC 592, Hindustan Petroleum
Corpn v Yashwant Gajanan Joshi [1990] Supp 3 SCR 434 (the corporation upon acquiring land, appointed one of its officers to
assess compensation for the land acquired; the Supreme Court rejected the argument that the Corporation ought not to have
appointed its own officer to assess compensation as the Corporation was itself an interested party). Accountant & Secretarial
Services Pvt Ltd v Union of India AIR 1993 Cal 102 [LNIND 1993 CAL 66] [LNIND 1993 CAL 66] [LNIND 1993 CAL 66].
2 Ie under the Passport Act 1967 s 10(3) (c).
3 Ie under the Imports (Control) order 1955 s 3.
4 Ie the Foreign Exchange Regulation Act 1973 s 6 (provides a comprehensive and a pervasive system of control on
transactions in foreign exchange. The initial adjudication under the Act was done by an official known as the Director of
Enforcement. An appeal from his decision lay to an Appellate Board).
5 Madhya Pradesh Housing Board v Mohd Shafi (1992) 2 SCC 168 [LNIND 1992 SC 941] [LNIND 1992 SC 941] [LNIND 1992
SC 941], Madhya Pradesh Housing Board v Mohd Shafi [1992] 1 SCR 657 [LNIND 1992 SC 941] [LNIND 1992 SC 941] [LNIND
1992 SC 941], Madhya Pradesh Housing Board v Mohd Shafi (1992) 3 JT 523; Collector, Allahabad v Raja Ram Jaiswal AIR
1985 SC 1622 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC 155], Collector, Allahabad v Raja Ram Jaiswal
(1985) 3 SCC 1 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC 155], Collector, Allahabad v Raja Ram Jaiswal
[1985] 3 SCR 995 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC 155]; Narindrajit Singh and Ranjit Singh v
197
Page 6
State of Uttar Pradesh AIR 1973 SC 552 [LNIND 1972 SC 604] [LNIND 1972 SC 604] [LNIND 1972 SC 604], Narindrajit Singh
and Ranjit Singh v State of Uttar Pradesh (1973) 1 SCC 157 [LNIND 1972 SC 604] [LNIND 1972 SC 604] [LNIND 1972 SC
604], Narindrajit Singh and Ranjit Singh v State of Uttar Pradesh [1973] 2 SCR 698 [LNIND 1972 SC 604] [LNIND 1972 SC
604] [LNIND 1972 SC 604]; see Narendra Bahadur Singh v State of Uttar Pradesh AIR 1977 SC 660 [LNIND 1976 SC 455]
[LNIND 1976 SC 455] [LNIND 1976 SC 455], Narendra Bahadur Singh v State of Uttar Pradesh (1977) 1 SCC 216 [LNIND
1976 SC 455] [LNIND 1976 SC 455] [LNIND 1976 SC 455], Narendra Bahadur Singh v State of Uttar Pradesh [1977] 2 SCR
226 [LNIND 1976 SC 455] [LNIND 1976 SC 455] [LNIND 1976 SC 455]; S Alwardas v State of Andhra Pradesh AIR 1995 AP
71 [LNIND 1994 AP 195] [LNIND 1994 AP 195] [LNIND 1994 AP 195]; Central Govt Servants Co-op Housing Society Ltd v
Wahab Uddin AIR 1981 SC 866 [LNIND 1981 SC 124] [LNIND 1981 SC 124] [LNIND 1981 SC 124]; Urban Improvement Trust
v Balveer Singh AIR 1985 Raj 71; see also Abraham Mathai v Sub-Inspector (Land Acquisition Officer) (1990) 4 SCC 136
[LNIND 1990 SC 381] [LNIND 1990 SC 381] [LNIND 1990 SC 381]; As to rule against bias see [005.074].

ADMINISTRATIVE LAW/11. ADMINISTRATIVE ADJUDICATION/(1) INTRODUCTION/[005.148] Meaning of
term 'quasi-judicial'
[005.148] Meaning of term 'quasi-judicial' Although the Constitution makes provisions for a well-ordered
and well-regulated-judicial system, the courts cannot monopolize the entire business of adjudication.
Alongwith with the courts, a plethora of bodies and officials also carry on adjudicatory functions under
powers conferred on them by legislation and determine innumerable classes of applications, claims and
controversies between the administration and individuals, or between the individuals themselves1. The
adjudicatory bodies are characterized as quasi-judicial, indicating that they are not simple courts but partake
some features of both courts as well as the administration. Hence, quasijudicial indicates a process which is
simultaneously both judicial as well as administrative2.
2 M P Jain, 'A Treatise on Administrative Law', (Vol 1).

ADMINISTRATIVE LAW/11. ADMINISTRATIVE ADJUDICATION/(2) NORMS APPLICABLE TO
ADJUDICATORY BODIES/A. RULES OF PROCEDURE AND EVIDENCE/[005.149] Civil Procedure
[005.149] Civil Procedure The rules of procedure as laid down by the Civil Procedure Code 19081, do not
apply to adjudicatory bodies2. In the absence of statutory rules for the purpose, the Supreme Court and high
courts have, over a period of time, developed certain norms applicable to these bodies3.
1 As to rules of procedure see generally [65]CIVIL PROCEDURE.
2 As to adjudicatory bodies see [005.143] and following.
3 As to norms regulating adjudicatory bodies see [005.150] and following.

ADJUDICATORY BODIES/A. RULES OF PROCEDURE AND EVIDENCE/[005.150] Evidence
[005.150] Evidence Adjudicatory bodies are not governed by the Indian Evidence Act 18721. One of the
reasons is to enable the authorities to arrive at decisions expeditiously and inexpensively by following
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procedures which are sufficiently informal and non-technical2. Application of the principles of natural justice
does not imply that what is not evidence can be acted upon by a quasi-judicial body nor does it imply that
where issues are seriously contested and have to be established, the requirements relating to proof can be
dispensed with3. Hence, although strict rules of evidence may not be applicable to quasijudicial bodies4, they
are not free to rely on evidence irrespective of its probity and quality5. All materials which are logically
probative to a prudent mind are admissible in evidence, and hence hearsay evidence of a high probative
value can be received by adjudicatory bodies6. The adequacy or sufficiency of evidence led on a point and
the inference of facts to be drawn from the said finding are within the exclusive jurisdiction of the tribunal and
beyond the scrutiny of courts7. The test to apply is not the acceptability of evidence in the sense of technical
rules governing regular court proceedings, but in a fair commonsense way as men of understanding will
accept8. Moreover, adjudicatory bodies cannot base their conclusions on pure conjectures and surmises
without the support of any legal evidence9. For instance, the Supreme Court quashed an order passed by
the Chief Settlement Commissioner in exercise of his revisional power under the Displaced Persons (Claims)
Supplementary Act 195410, on the ground that the Commissioner had based his conclusions on pure
conjectures and surmises without the support of legal evidence on the record to support them11. An order
based on pure assumptions and conjectures and on no evidence whatsoever is invalid and the order will be
quashed12. Furthermore, findings of fact based on the examination of evidence by the adjudicatory body in a
perverse manner will be quashed13. Where some of the findings by a tribunal which influenced its decision
were beyond its competence, and the rest were either speculative or contrary to evidence on record, then the
same were liable to be set aside14. Assessment of tax to the best judgment15 must be based on relevant and
dependable data and will be set aside if it is based on imagination or on arbitrary data16. In disciplinary
proceedings against professional persons, the findings must be based on a higher degree of proof, higher
than that required in a civil suit17 but lower than that required to sustain a conviction in a criminal
prosecution18. In disciplinary proceedings against government officers, the standard of evidence adopted is
less stringent19.
Furthermore, like any other evidence, hearsay evidence must be disclosed to the concerned party with a
view to provide him the opportunity to be heard20. The Supreme Court quashed the findings of the Income
Tax Appellate Tribunal against the assessee on grounds of nondisclosure of evidence and on being based
on hearsay and not on any material evidence21.
Under the Constitution, a finding of fact by a domestic tribunal cannot be interfered with unless the finding is
based on no evidence or purely on surmises and conjectures22. Furthermore, where the decision of the
adjudicatory body is supported by legal evidence, some of which may be irrelevant, the court cannot interfere
if the finding can be sustained on the rest of the evidence23. In proceedings for confiscation of goods under
Sea Customs Act 187824, the function of considering the sufficiency of the evidence, is the duty of the
collector or the appellate authority25.
1 As to rules of evidence see generally [145]EVIDENCE. As to evidence on oath see [005.151](in the case of certain
adjudicatory bodies, specific statutory provisions exclude the application of the Indian Evidence Act 1872. Even in the absence
of such a statutory exclusionary provision, there is the general judicially developed norm excluding application of the Act to
adjudicatory bodies).
2 Dhakeswari Cotton Mills Ltd v Comr of Income-Tax, West Bengal AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC
149] [LNIND 1954 SC 149], Dhakeswari Cotton Mills Ltd v Comr of Income-Tax, West Bengal [1955] 1 SCR 951, Dhakeswari
Cotton Mills Ltd v Comr of Income-Tax, West Bengal (1955) SCJ 122 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954
SC 149]; see also Union of India v TR Varma AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC
91], Union of India v TR Varma [1958] SCR 499 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of India
v TR Varma (1958) SCJ 142; New Prakash Transport Co Ltd v New Suwarna Transport Co Ltd AIR 1957 SC 232 [LNIND 1956
SC 132] [LNIND 1956 SC 132] [LNIND 1956 SC 132], New Prakash Transport Co Ltd v New Suwarna Transport Co Ltd [1957]
SCR 98, New Prakash Transport Co Ltd v New Suwarna Transport Co Ltd (1957) SCA 178(decision of the tribunals observing
rules of natural justice in the conduct of the inquiry is not liable to be impeached on the ground that the procedure followed was
not in accordance with that provided under the Indian Evidence Act 1872).
3 Bareilly Electric Supply Co Ltd v The Workmen AIR 1972 SC 330 [LNIND 1971 SC 383] [LNIND 1971 SC 383] [LNIND 1971
SC 383], Bareilly Electric Supply Co Ltd v The Workmen (1972) 2 SCC 617, Bareilly Electric Supply Co Ltd v The Workmen
4 Bank of India v Degala Suryanarayana AIR 1999 SC 2407 [LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC
199
Page 8
580], Bank of India v Degala Suryanarayana (1999) 4 JT 489 [LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC
580], Bank of India v Degala Suryanarayana (1999) 4 Scale 75 [LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC
580] (strict rules of evidence are not applicable to departmental inquiry proceedings. The only requirement of law is that the
allegation against the delinquent officer must be established by such evidence acting upon which a reasonable person acting
reasonably and with objectivity may arrive at a finding upholding the charge against the delinquent officer).
5 See Bareilly Electric Supply Co Ltd v The Workmen AIR 1972 SC 330 [LNIND 1971 SC 383] [LNIND 1971 SC 383] [LNIND
1971 SC 383], Bareilly Electric Supply Co Ltd v The Workmen (1972) 2 SCC 617, Bareilly Electric Supply Co Ltd v The
Workmen [1972] 1 SCR 241 [LNIND 1971 SC 383] [LNIND 1971 SC 383] [LNIND 1971 SC 383](even if all technicalities of the
Indian Evidence Act 1872 are not strictly applicable it is inconceivable that the tribunal can act on what is not evidence such as
hearsay, nor can it justify the tribunal in basing its award on copies of documents when the originals which are in existence are
not produced and proved by one of the methods either by affidavit or by witnesses who have executed them. Moreover, the
tribunal must provide the opportunity for an inspection that is relevant to the enquiry).
6 TA Miller Ltd v Minister of Housing and Local Government [1968] 2 All ER 633, TA Miller Ltd v Minister of Housing and Local
Government [1968] 1 WLR 992 CA,; see R v Hull Prison Board of Visitors, exp St Germain (No 2) [1979] 3 All ER 545, R v Hull
Prison Board of Visitors, exp St Germain (No 2) [1979] 1 WLR 1401, R v Hull Prison Board of Visitors, exp St Germain (No 2)
[1979] Cri LR 726.
7 State of Andhra Pradesh v Chitra Venkata Rao AIR 1975 SC 2151 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975
SC 309], State of Andhra Pradesh v Chitra Venkata Rao (1975) 2 SCC 557 [LNIND 1975 SC 309] [LNIND 1975 SC 309]
[LNIND 1975 SC 309], State of Andhra Pradesh v Chitra Venkata Rao [1976] 1 SCR 521 [LNIND 1975 SC 309] [LNIND 1975
SC 309] [LNIND 1975 SC 309].
8 State of Haryana v Rattan Singh AIR 1977 SC 1512, State of Haryana v Rattan Singh (1977) 2 SCC 491, State of Haryana v
Rattan Singh (1977) UJ 298.
9 Bank of India v Degala Suryanarayana AIR 1999 SC 2407 [LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC
580], Bank of India v Degala Suryanarayana (1999) 4 JT 489 [LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC
580], Bank of India v Degala Suryanarayana (1999) 4 Scale 75 [LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC
580]; Jagannath Prasad Sharma v State of Uttar Pradesh AIR 1961 SC 1245 [LNIND 1961 SC 89] [LNIND 1961 SC 89]
[LNIND 1961 SC 89], Jagannath Prasad Sharma v State of Uttar Pradesh [1962] 1 SCR 151 [LNIND 1961 SC 89] [LNIND 1961
SC 89] [LNIND 1961 SC 89], Jagannath Prasad Sharma v State of Uttar Pradesh (1961) 2 LLJ 166 [LNIND 1961 SC 89]
[LNIND 1961 SC 89] [LNIND 1961 SC 89]; see Devendra Bhai Shankar Mehta v Rameshchandra Vithaldas Sheth AIR 1992
SC 1398 [LNIND 1992 SC 337] [LNIND 1992 SC 337] [LNIND 1992 SC 337]at 1405, Devendra Bhai Shankar Mehta v
Rameshchandra Vithaldas Sheth (1992) 3 SCC 473 [LNIND 1992 SC 337] [LNIND 1992 SC 337] [LNIND 1992 SC 337],
Devendra Bhai Shankar Mehta v Rameshchandra Vithaldas Sheth (1992) 3 JT 560 [LNIND 1992 SC 337] [LNIND 1992 SC
337] [LNIND 1992 SC 337]; Bareilly Electric Supply Co Ltd v The Workmen AIR 1972 SC 330 [LNIND 1971 SC 383] [LNIND
1971 SC 383] [LNIND 1971 SC 383], Bareilly Electric Supply Co Ltd v The Workmen (1972) 2 SCC 617, Bareilly Electric Supply
Co Ltd v The Workmen [1972] 1 SCR 241 [LNIND 1971 SC 383] [LNIND 1971 SC 383] [LNIND 1971 SC 383].
10 Ie the Displaced Persons (Claims) Supplementary Act 1954 s 5 (b).
11 Tribhuban Parkash Nayyar v Union of India AIR 1970 SC 540 [LNIND 1969 SC 388] [LNIND 1969 SC 388] [LNIND 1969 SC
388], Tribhuban Parkash Nayyar v Union of India (1970) 2 SCJ 387 [LNIND 1969 SC 388] [LNIND 1969 SC 388] [LNIND 1969
SC 388]; Brij Nandan Kansal v State of Uttar Pradesh AIR 1988 SC 908 [LNIND 1988 SC 149] [LNIND 1988 SC 149] [LNIND
1988 SC 149], Brij Nandan Kansal v State of Uttar Pradesh (1988) Supp SCC 761 [LNIND 1988 SC 149], Brij Nandan Kansal v
State of Uttar Pradesh [1988] 3 SCR 79 [LNIND 1988 SC 149] [LNIND 1988 SC 149] [LNIND 1988 SC 149]; Pandurang
Dattatraya Khandekar v The Bar Council of Maharashtra AIR 1984 SC 110 [LNIND 1993 SC 319] [LNIND 1993 SC 319] [LNIND
1993 SC 319], Pandurang Dattatraya Khandekar v The Bar Council of Maharashtra (1984) 2 SCC 556 [LNIND 1983 SC 297]
[LNIND 1983 SC 297] [LNIND 1983 SC 297], Pandurang Dattatraya Khandekar v The Bar Council of Maharashtra [1984] 1
SCR 414; Bishnu Ram Borah v Parag Saikia AIR 1984 SC 898 [LNIND 1983 SC 337] [LNIND 1983 SC 337] [LNIND 1983 SC
337], Bishnu Ram Borah v Parag Saikia (1984) 2 SCC 488 [LNIND 1983 SC 337] [LNIND 1983 SC 337] [LNIND 1983 SC 337],
Bishnu Ram Borah v Parag Saikia [1984] 1 SCR 825 [LNIND 1983 SC 337] [LNIND 1983 SC 337] [LNIND 1983 SC 337].
12 Rukmanand Bairoliya v State of Bihar AIR 1971 SC 746, Rukmanand Bairoliya v State of Bihar (1971) 3 SCC 167,
Rukmanand Bairoliya v State of Bihar (1971) UJ 143.
13 Haji Zainullah Khan(decd) by LRS v Nagar Mahapalika, Allahabad (1994) 5 SCC 667.
14 Parry & Co Ltd v Judge of the Second Industrial Tribunal, Calcutta AIR 1970 SC 1334 [LNIND 1968 SC 358] [LNIND 1968
SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v Judge of the Second Industrial Tribunal, Calcutta [1969] 2 SCR 976 [LNIND
1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v Judge of the Second Industrial Tribunal, Calcutta
(1970) 2 SCJ 433 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]; see also State of West Bengal v Atul
Krishna Shaw AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND 1990 SC 466] [LNIND 1990 SC 466], State of West Bengal v
Atul Krishna Shaw (1991) Supp 1 SCC 4141, State of West Bengal v Atul Krishna Shaw [1990] Supp 1 SCR 91.
15 As to best judgment assessment see [280]TAXATION AND REVENUE.
16 Dhirajlal Girdharilal v Comr of Income-Tax, Bombay AIR 1955 SC 271 [LNIND 1954 SC 298] [LNIND 1954 SC 298] [LNIND
1954 SC 298], Dhirajlal Girdharilal v Comr of Income-Tax, Bombay (1954) 26 ITR 736 [LNIND 1954 SC 298] [LNIND 1954 SC
200
Page 9
298] [LNIND 1954 SC 298]; Omar Salay Mohamed Sait v Comr of Income-Tax, Madras AIR 1959 SC 1238, Omar Salay
Mohamed Sait v Comr of Income-Tax, Madras (1959) 37 ITR 151; Lalchand Bhagat Ambica Ram v Comr of Income-Tax. Bihar
and Orissa AIR 1959 SC 1295 [LNIND 1959 SC 120] [LNIND 1959 SC 120] [LNIND 1959 SC 120], Lalchand Bhagat Ambica
Ram v Comr of Income-Tax. Bihar and Orissa [1960] 1 SCR 301 [LNIND 1959 SC 120] [LNIND 1959 SC 120] [LNIND 1959 SC
120], Lalchand Bhagat Ambica Ram v Comr of Income-Tax. Bihar and Orissa (1959) 37 ITR 288 [LNIND 1959 SC 120] [LNIND
1959 SC 120] [LNIND 1959 SC 120].
17 As to civil suits see generally [65]CIVIL PROCEDURE.
18 KL Shinde v Mysore AIR 1976 SC 1080 [LNIND 1976 SC 140] [LNIND 1976 SC 140] [LNIND 1976 SC 140], KL Shinde v
Mysore (1976) 3 SCC 76 [LNIND 1976 SC 140] [LNIND 1976 SC 140] [LNIND 1976 SC 140], KL Shinde v Mysore [1976] 3
SCR 913 [LNIND 1976 SC 140] [LNIND 1976 SC 140] [LNIND 1976 SC 140]; State of Andhra Pradesh v Chitra Venkata Rao
AIR 1975 SC 2151 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975 SC 309], State of Andhra Pradesh v Chitra
Venkata Rao (1975) 2 SCC 557 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975 SC 309], State of Andhra Pradesh v
Chitra Venkata Rao [1976] 1 SCR 521 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975 SC 309]; see Union of India v
TR Varma AIR 1957 SC 882 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of India v TR Varma [1958]
SCR 499 [LNIND 1957 SC 91] [LNIND 1957 SC 91] [LNIND 1957 SC 91], Union of India v TR Varma (1958) SCJ 142; State of
Orissa v Murlidhar Jena AIR 1963 SC 404 [LNIND 1961 SC 545] [LNIND 1961 SC 545] [LNIND 1961 SC 545]. As to criminal
prosecution see [105]CRIMINAL LAW AND PROCEDURE. (departmental proceedings do not stand on the same footing as
criminal prosecutions in which high degree of proof is required).
19 See also Pandurang Dattatraya Khandekar v The Bar Council of Maharashtra AIR 1984 SC 110 [LNIND 1993 SC 319]
[LNIND 1993 SC 319] [LNIND 1993 SC 319], Pandurang Dattatraya Khandekar v The Bar Council of Maharashtra (1984) 2
SCC 556 [LNIND 1983 SC 297] [LNIND 1983 SC 297] [LNIND 1983 SC 297], Pandurang Dattatraya Khandekar v The Bar
Council of Maharashtra [1984] 1 SCR 414 (the Supreme Court quashed the decision of the disciplinary committee of the Bar
Council as it had held two advocates guilty of professional misconduct on the basis of evidence which fell short of the standard
of proof required to sustain the charge. However, in disciplinary proceedings against government servants, the Supreme Court
has adopted a less stringent standard of evidence).
20 R v Commission for Racial Equality, ex p Cottrell and Rothon [1980] 3 All ER 265, R v Commission for Racial Equality, ex p
Cottrell and Rothon [1980] 1 WLR 1580, R v Commission for Racial Equality, ex p Cottrell and Rothon [1980] IRLR 279, R v
Commission for Racial Equality, ex p Cottrell and Rothon 124 Sol Jo 882;
21 Kishinchand Chellaram v Comr of Income-Tax, Bombay City II, Bombay AIR 1980 SC 2117 [LNIND 1980 SC 385] [LNIND
1980 SC 385] [LNIND 1980 SC 385], Kishinchand Chellaram v Comr of Income-Tax, Bombay City II, Bombay (1980) Supp SCC
660 [LNIND 1980 SC 385], Kishinchand Chellaram v Comr of Income-Tax, Bombay City II, Bombay [1981] Supp 1 SCR 720;
see Dhakeswari Cotton Mills Ltd v Comr of Income-Tax, West Bengal AIR 1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC
SC 149].
22 Ie under the Constitution of India art 226. See Mukunda Bore v Bangshidhar Buragohain AIR 1980 SC 1524, Mukunda Bore
v Bangshidhar Buragohain (1980) 4 SCC 336, Mukunda Bore v Bangshidhar Buragohain (1980) UJ 526.
23 Zora Singh v JM Tandon AIR 1971 SC 1537, Zora Singh v JM Tandon (1971) 3 SCC 834, Zora Singh v JM Tandon (1970)
UJ 829.
24 Ie under the Sea Customs Act 1878 s 167(8).
25 Collector of Customs, Madras v D Bhoormull AIR 1974 SC 859 [LNIND 1974 SC 131] [LNIND 1974 SC 131] [LNIND 1974
SC 131], Collector of Customs, Madras v D Bhoormull (1974) 2 SCC 544 [LNIND 1974 SC 131] [LNIND 1974 SC 131] [LNIND
1974 SC 131], Collector of Customs, Madras v D Bhoormull [1974] 3 SCR 833 [LNIND 1974 SC 131] [LNIND 1974 SC 131]
[LNIND 1974 SC 131].

ADJUDICATORY BODIES/A. RULES OF PROCEDURE AND EVIDENCE/[005.151] Evidence on oath
[005.151] Evidence on oath Under the Oaths Act 1969, an oath and an affirmation may be made by all
witnesses who may be lawfully examined by or before any court or person authorised to examine or to
receive evidence1. However, since oath taking is a voluntary act and cannot impose upon the witness to take
oath, any omission in that regard will not invalidate the proceedings2.
The inquiring authority enjoys the discretionary power to give weightage to the evidence according to its
201
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nature taking into account whether the evidence had been given on oath or without it.
Every person giving evidence, on any subject before any court or person authorised to administer oaths and
affirmations, is bound to state the truth on that subject3. Hence, if evidence is taken without oath, the party
against whom evidence is being given loses one significant safeguard: he cannot proceed against the
witness for perjury if he tells a lie. Every adjudicatory body does not have legal authority to take evidence on
oath. Only such a body can do so as has legal authority to do so.
1 Ie under the Oaths Act 1969 s 4. As to evidence see [005.150].
2 Ie under the Oaths Act 1969 s 7.
3 Ie under the Oaths Act 1969 s 8.

ADJUDICATORY BODIES/B. RULES OF LIMITATION/[005.152] Limitation period
[005.152] Limitation period The Limitation Act 1963, being procedural law, and not substantive law, is
applicable to matters as provided by the legislature either expressly or by necessary implication1. For
instance, under the Advocates Act 19612, appeals to the Bar Council of India and the Supreme Court are
governed by the Limitation Act 19633. The application of the Act cannot be extended by analogy or reference
to proceedings to which they do not apply expressly or by necessary implication4.
The Limitation Act 1963 is applicable to proceedings in the courts5 and not to proceedings in tribunals and
other adjudicatory bodies6. Where an order for recovery of rent7 from an occupant of public premises for a
period of six years was challenged on the ground that the recovery of rent for more than three years was
time-barred under the Act, the court upheld the order on the ground that jurisdiction of civil courts was
entirely barred in matters governed by the Public Premises (Eviction of Unauthorised Occupants) Act 1971
and hence, the Limitation Act 1963 cannot be inferentially applied to proceedings before the estate officer8.
Applications presented to bodies other than courts are not governed for purposes of limitation by the
Limitation Act 19639.
Where a statute prescribes the period of limitation10, the Limitation Act 196311, unless expressly barred, will
be applicable12. Furthermore, a statute may confer power on the tribunal to condone delay13. The Income
Tax Appellate Tribunal is empowered to condone the delay in filing an appeal if it is satisfied that there was
sufficient cause for not filing the appeal within the prescribed period. However, where a statute provides for
the condonation of delay, it is regulated by the statutory provision and not the Limitation Act 1963.
When a statute fixes a time limit for an aggrieved party to seek remedy, the period for calculation of limitation
starts on the date of the communication of the order14. However, if the department concerned seeks to
revise the order suo motu, then the period of limitation will be calculated from the date of passing the order in
question irrespective of its communication to the affected party15.
Furthermore, in case of fraud or misrepresentation, the law of limitation, delay and laches may be ignored16.
1 A S K Krishnappa Chettiar v S V V Somaiah alias Navniappa Chettiar AIR 1964 SC 227 [LNIND 1963 SC 59] [LNIND 1963
SC 59] [LNIND 1963 SC 59], A S K Krishnappa Chettiar v S V V Somaiah alias Navniappa Chettiar [1964] 2 SCR 241 [LNIND
2 Ie under the Advocates Act 1961 s 39.

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3 Ie the Limitation Act 1963 ss 5andss 12.
4 A S K Krishnappa Chettiar v S V V Somaiah alias Navniappa Chettiar AIR 1964 SC 227 [LNIND 1963 SC 59] [LNIND 1963
SC 59] [LNIND 1963 SC 59], A S K Krishnappa Chettiar v S V V Somaiah alias Navniappa Chettiar [1964] 2 SCR 241 [LNIND
1963 SC 59] [LNIND 1963 SC 59] [LNIND 1963 SC 59]; see Comr of Sales Tax, Uttar Pradesh, Lucknow v Parson Tools and
Plants, Kanpur AIR 1975 SC 1039 [LNIND 1975 SC 87] [LNIND 1975 SC 87] [LNIND 1975 SC 87], Comr of Sales Tax, Uttar
Pradesh, Lucknow v Parson Tools and Plants, Kanpur (1974) 4 SCC 22, Comr of Sales Tax, Uttar Pradesh, Lucknow v Parson
Tools and Plants, Kanpur (1975) Tax LR 1529 [LNIND 1975 SC 87] [LNIND 1975 SC 87] [LNIND 1975 SC 87] see contra Comr
of Sales Tax, Uttar Pradesh v Madan Lal Das & Sons AIR 1977 SC 523 [LNIND 1976 SC 352] [LNIND 1976 SC 352] [LNIND
1976 SC 352], Comr of Sales Tax, Uttar Pradesh v Madan Lal Das & Sons (1976) 4 SCC 464 [LNIND 1976 SC 352] [LNIND
1976 SC 352] [LNIND 1976 SC 352], Comr of Sales Tax, Uttar Pradesh v Madan Lal Das & Sons [1977] 1 SCR 683 [LNIND
5 As to application of the Limitation Act 1963 to court proceedings see [205]LIMITATION OF ACTIONS.
6 Sakuru v Tanaji AIR 1985 SC 1279 [LNIND 1985 SC 218] [LNIND 1985 SC 218] [LNIND 1985 SC 218], Sakuru v Tanaji
(1985) 3 SCC 590 [LNIND 1985 SC 218] [LNIND 1985 SC 218] [LNIND 1985 SC 218], Sakuru v Tanaji [1985] Supp 2 SCR 109;
Birla Cement Works v G M Western Railways AIR 1995 SC 1111 [LNIND 1995 SC 4] [LNIND 1995 SC 4] [LNIND 1995 SC 4],
Birla Cement Works v G M Western Railways (1995) 2 SCC 493 [LNIND 1995 SC 4] [LNIND 1995 SC 4] [LNIND 1995 SC 4],
Birla Cement Works v G M Western Railways (1995) 2 JT 59; RDK Sita Devi v C Anna Rao AIR 1970 AP 43 [LNIND 1968 AP
2] [LNIND 1968 AP 2] [LNIND 1968 AP 2], RDK Sita Devi v C Anna Rao (1969) 1 Andh WR 48, RDK Sita Devi v C Anna Rao
(1969) 1 Andh LT 56.
7 Ie under the Public Premises (Eviction of Unauthorised Occupants) Act 1971 s 7.
8 LS Nair v Hindustan Steel Ltd, Bhilai AIR 1980 MP 106 [LNIND 1980 MP 80] [LNIND 1980 MP 80] [LNIND 1980 MP 80], LS
Nair v Hindustan Steel Ltd, Bhilai (1980) MPLJ 429, LS Nair v Hindustan Steel Ltd, Bhilai (1980) Jab LJ 133.
9 Town Municipal Council, Athani v Presiding Officer, Labour Court, Hubli AIR 1969 SC 1335 [LNIND 1969 SC 135] [LNIND
1969 SC 135] [LNIND 1969 SC 135], Town Municipal Council, Athani v Presiding Officer, Labour Court, Hubli (1969) 1 SCC
873 [LNIND 1969 SC 135] [LNIND 1969 SC 135] [LNIND 1969 SC 135], Town Municipal Council, Athani v Presiding Officer,
Labour Court, Hubli [1970] 1 SCR 51 [LNIND 1969 SC 135] [LNIND 1969 SC 135] [LNIND 1969 SC 135], see Management of
the State Bank of Hyderabad v Vasudev Anand Bhide AIR 1970 SC 196 [LNIND 1969 SC 181] [LNIND 1969 SC 181] [LNIND
1969 SC 181], Management of the State Bank of Hyderabad v Vasudev Anand Bhide [1970] 1 SCR 365 [LNIND 1969 SC 181]
[LNIND 1969 SC 181] [LNIND 1969 SC 181], Management of the State Bank of Hyderabad v Vasudev Anand Bhide (1970) 1
SCA 469 [LNIND 1969 SC 181] [LNIND 1969 SC 181] [LNIND 1969 SC 181] (Limitation Act 1963 art 137; Nityanand M Joshi v
Life Insurance Corpn AIR 1970 SC 209 [LNIND 1969 SC 187] [LNIND 1969 SC 187] [LNIND 1969 SC 187], Nityanand M Joshi
v Life Insurance Corpn [1970] 1 SCR 396 [LNIND 1969 SC 187] [LNIND 1969 SC 187] [LNIND 1969 SC 187], Nityanand M
Joshi v Life Insurance Corpn (1969) 2 SCJ 749 [LNIND 1969 SC 187] [LNIND 1969 SC 187] [LNIND 1969 SC 187]; Shardaben
v MI Pandya AIR 1971 Guj 151 [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120], Shardaben v MI
Pandya (1971) 12 Guj LR 97, Shardaben v MI Pandya (1979) ACJ 222(Limitation Act 1963 art 137 is not applicable to an
application filed by workmen relating to a dispute concerning payment of wages before the labour court under s 33C(2) of the
Industrial Disputes Act 1947. No limitation is prescribed for such applications. of the Limitation Actarticle 137 lays down the
period of limitation for filing applications. The Supreme Court has held that article 137 would not apply to an application filed
before the labour court as it is not a court within the Limitation Act 1963. The scheme of the Limitation Act is that it only deals
with applications to courts).
10 Ie the Railway Claims Tribunal Act 1987 s 17.
11 Central Coalfields Ltd v Union of India AIR 1993 Pat 150, Central Coalfields Ltd v Union of India (1993) 2 Bih LJ 1, Central
Coalfields Ltd v Union of India (1993) 2 Pat LJR (Pat) 49(the high court applied the Limitation Act 1963 art 137 to filing of an
application before the Railway Claims Tribunal claiming compensation for short supply of goods by the Railways. The Railway
Claims Tribunal Act 1987 lays down a period of limitation for filing several types of applications before the tribunal but this
provision does not cover cases of short supply of goods. Prior to the institution of the Railway Claims Tribunal, claims against
the Railways were filed in the courts where the Limitation Act was applicable. The same tradition continues to hold good even
after the institution of the tribunal in cases where the Railway Claims Tribunal Act 1987 fails to provide a period of limitation).
12 Ie the Limitation Act 1963 s 5.
13 Mahesh Harilal Khamar v BN Narasimhan AIR 1982 Guj 298, Mahesh Harilal Khamar v BN Narasimhan (1982) 2 Guj LR
124, Mahesh Harilal Khamar v BN Narasimhan (1982) Guj LH 700.
14 Collector of Central Excise, Madras v M M Rubber & Co, Tamil Nadu AIR 1991 SC 2141 [LNIND 1991 SC 431] [LNIND
1991 SC 431] [LNIND 1991 SC 431], Collector of Central Excise, Madras v M M Rubber & Co, Tamil Nadu (1992) Supp 1 SCC
471, Collector of Central Excise, Madras v M M Rubber & Co, Tamil Nadu [1991] 3 SCR 862 [LNIND 1991 SC 431] [LNIND
1991 SC 431] [LNIND 1991 SC 431].
15 State of Gujarat v Patel Raghav Natha AIR 1969 SC 1297 [LNIND 1969 SC 177] [LNIND 1969 SC 177] [LNIND 1969 SC
177], State of Gujarat v Patel Raghav Natha (1969) 2 SCC 187 [LNIND 1969 SC 177] [LNIND 1969 SC 177] [LNIND 1969 SC
177], State of Gujarat v Patel Raghav Natha [1970] 1 SCR 335 [LNIND 1969 SC 177] [LNIND 1969 SC 177] [LNIND 1969 SC
177]; Mohamad Kavi Mohamad Amin v Fatimabai Ibrahim, (1997) 6 SCC 71; see also N Balakrishnan v M Krishnamurthy AIR
203
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1998 SC 3222 [LNIND 1998 SC 851] [LNIND 1998 SC 851] [LNIND 1998 SC 851], N Balakrishnan v M Krishnamurthy (1998) 7
SCC 123 [LNIND 1998 SC 851] [LNIND 1998 SC 851] [LNIND 1998 SC 851], N Balakrishnan v M Krishnamurthy (1998) 6 JT
242.
16 Pukh Raj v State of Rajasthan AIR 2000 Raj 89.

ADJUDICATORY BODIES/C. DOCTRINES/[005.153] Doctrine of stare decisis
[005.153] Doctrine of stare decisis Adjudicatory bodies are not bound by their own decisions. The doctrine
of Stare Decisis does not apply to such bodies except that an adjudicatory body may be bound by the
decision of a body higher in the hierarchy, or the decisions of the concerned high court, or, ultimately of the
Supreme Court1. Where there is no such binding precedent, an adjudicatory body may differ from its earlier
decision if it thinks proper to do so in the circumstances of a case.
However, in the interests of orderly administration of justice, uniformity of decisions of an adjudicatory body
is better than inconsistency in decisions. Judicial inconsistency would shake public confidence in the
administration of justice2. Adjudicatory bodies must not depart from its previous interpretation and application
where it would not be fair or just to do so3.
Furthermore, an erroneous decision by a bench of a tribunal, in order to be rectified, must be referred to a

larger bench4.
1 Union of India v Kamlakshi Finance Corpn Ltd AIR 1992 SC 711, Union of India v Kamlakshi Finance Corpn Ltd (1992) Supp
1 SCC 433, Union of India v Kamlakshi Finance Corpn Ltd (1992) 1 JT 85.
2 Union of India v Paras Laminates (Pvt) Ltd AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC
426], Union of India v Paras Laminates (Pvt) Ltd (1990) 4 SCC 453 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990
SC 426], Union of India v Paras Laminates (Pvt) Ltd [1990] 3 SCR 789 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND
1990 SC 426] (the Supreme Court has emphasized upon adjudicatory bodies that they ought to adopt a consistent approach.
One bench of a tribunal must not lightly disregard an earlier decision of another bench of the same tribunal, particularly, when
the earlier decision is rendered by a larger bench. The rationale of this rule is the need for continuity, certainty and predictability
in the administration of justice. Persons affected by decisions of tribunals or courts have a right to expect that those exercising
judicial functions will follow the reason or the ground of the judicial decision in the earlier case on identical matters).
3 HTV Ltd v Price Commission, 1976 ICR 170 (Lord Denning in emphasizing the duty of the Commission to act with fairness
and consistency, further stated that, if the commission has interpreted the words of the relevant Act in a particular sense, or
regularly applied the Act in a particular way, it should continue to interpret it and apply it in the same way thereafter unless there
is good cause for departing from it. At any rate, the concerned body should not depart from it in any case where it has, by its
conduct, led the concerned person to believe that he can safely act on that interpretation of the law, or on that method of
applying it, and he does so act on it).
4 Union of India v Paras Laminates (Pvt) Ltd AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC
426], Union of India v Paras Laminates (Pvt) Ltd (1990) 4 SCC 453 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990
SC 426], Union of India v Paras Laminates (Pvt) Ltd [1990] 3 SCR 789 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND
1990 SC 426] (the correctness of a two member bench decision of CEGAT was doubted by another two-member bench and so
was referred to a three-member bench for reconsideration).

ADJUDICATORY BODIES/C. DOCTRINES/[005.154] Res judicata
[005.154] Res judicata The principle of res judicata1 governs, inter alia, the findings of adjudicatory bodies
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acting in judicial or quasi-judicial authority2. Hence, when a decision has been made by a competent revenue
officer, the same cannot be questioned or reviewed by the subsequent revenue officer on the same issue3.
However, where the tribunal exceeds its jurisdiction, the decision will be void and cannot be regarded as res
judicata4. Power of an adjudicatory body to review, to revise or to reopen a case is not inherent and must be
conferred specifically by an express provision in the parent statute5 or by necessary implication6. Hence an
order passed upon reopening a case without being authorised to do so, would be a nullity7. Where the
vice-Chancellor of a University, by virtue of the power conferred on him8, disapproved the order of dismissal
on the ground that the charges did not justify the dismissal, and subsequently, on reviewing his earlier order,
approved the dismissal, the Supreme Court quashed the order of the vice-Chancellor on the ground that 'a
quasi-judicial authority cannot review its own order, unless the power of review is expressly conferred on it by
the statute under which it derives its jurisdiction'9. The absence of power to review inhibits a second inquiry
by the disciplinary authority10. Departmental proceedings taken against a government officer cannot be
classified as quasi-judicial and administerial proceedings. Any action decided to be taken against a
government officer found guilty of misconduct is a judicial order and cannot be varied at the will of the
authority who is empowered to impose the punishment11.
In matters involving income tax or sales tax, the doctrine of res judicata may not be applicable since each
year's assessment being final only for that particular year, the tax is determined for a particular period12.
Hence, a question settled in relation to one assessment year may be reopened during the assessment for
the subsequent year13 and an income tax officer may depart from his earlier decision14. There is no estoppel
in the matters mentioned above, and the officer is not bound by the method followed in the earlier years15.
However, tax authorities cannot reopen, capriciously or arbitrarily, a question that has been previously
settled. Hence, an earlier decision cannot be reopened:
(1) if that decision is not arbitrary or perverse;

(2) if it has been arrived at after due enquiry;
(3) if no fresh facts are placed before the authority giving the later decision;
(4) if the authority giving the earlier decision has taken into consideration all material evidence16.
Furthermore, if an adjudicatory body reached an ex parte decision, where the affected party was prevented
by reasonable and sufficient cause from appearing before it on the date fixed for the hearing, the authority
concerned has an inherent jurisdiction to rehear the matter on an application from the affected party17.
Similarly, when an adjudicatory body passes an order without providing the affected party an opportunity to
be heard, the authority can reopen the case and pass a de novo order after hearing the parties18.
In matters relating to industrial disputes19, the principle of res judicata has been held to apply to industrial
adjudication when a matter in dispute in a subsequent case has earlier been directly and substantially in
issue between the same parties and has been heard and finally decided by the tribunal20. However, whether
the matter in dispute in a subsequent case had been earlier directly and substantially in issue between the
same parties, and whether the same matter had been heard and finally decided by the tribunal, will be of
pertinent consideration and will have to be determined before holding in a particular case that the principle of
res judicata is applicable.
Moreover, in industrial adjudication, extreme technical considerations, while applying the principle of res
judicata, usually invoked in civil proceedings, may not be allowed to outweigh substantial justice to the
parties21. Furthermore, the court clarifies that it does not mean that a question once decided can never be
reopened and hence, certain classes of cases, inter alia, such as, disputes regarding wage structure, and
service conditions, which arise as circumstances change as, for instance, spiralling prices may not be barred
from being re-agitated by the rule of res judicata22.
Order by an adjudicatory body obtained by fraud is a nullity and nonest in law. Hence, an adjudicatory body
inheres in it the power to review by recalling its orders on grounds of fraud, misrepresentation or other similar
grounds23.
Besides fraud, a tribunal may also recall an earlier order made by it, inter alia, in the following circumstances:
205
Page 14
(i) the proceedings culminating into an order suffer from the inherent lack of jurisdiction and that
lack of jurisdiction is patent; or
(ii) there has been a mistake on the part of the court or tribunal prejudicing a party;
(iii) A judgment was rendered in ignorance of the fact that a necessary party had not been served
a notice at all, or had died and his estate was not represented24.
The decision of a competent tribunal may be regarded as res judicata if the same matter is raised
subsequently before a court. A complaint of negligence in discharge of his duties filed against an advocate
was dismissed by the State Bar Council and, subsequently on appeal, by the Bar Council of India. When the
complainant filed a suit in a court seeking damages against the lawyer on the ground of negligence, the high
court ruled that the suit was not maintainable as the earlier decision by the Bar Council would operate as res
judicata, and the court could not take cognisance of the matter which had earlier been disposed of by the
Council25.
1 Ie under the Code of Civil Procedure 1908 s 11 As to the principle of res judicata see CIVIL PROCEDURE[65.128] and
following (res judicata means that once a dispute between the parties has been decided on merits by a competent court, it
should then not be re-opened. The underlying idea is that there must be some finality to litigation. Once an adjudicatory
authority makes a decision, it becomes final and can be reopened only if power of review is conferred on the authority by the
statute under which it is functioning).
2 Patel Chunibhai Dajibha v Narayanrao Khanderao Jambekar AIR 1965 SC 1457 [LNIND 1964 SC 340] [LNIND 1964 SC 340]
[LNIND 1964 SC 340], Patel Chunibhai Dajibha v Narayanrao Khanderao Jambekar [1965] 2 SCR 328 [LNIND 1964 SC 340]
[LNIND 1964 SC 340] [LNIND 1964 SC 340]; Harbhajan Singh v Karam Singh AIR 1966 SC 641 [LNIND 1965 SC 222] [LNIND
1965 SC 222] [LNIND 1965 SC 222], Harbhajan Singh v Karam Singh [1966] 1 SCR 817 [LNIND 1965 SC 222] [LNIND 1965
SC 222] [LNIND 1965 SC 222], Harbhajan Singh v Karam Singh (1966) 1 SCJ 727 [LNIND 1965 SC 222] [LNIND 1965 SC 222]
[LNIND 1965 SC 222]; State of Madhya Pradesh (now Maharashtra) v Haji Hasan Dada AIR 1966 SC 905 [LNIND 1965 SC
346] [LNIND 1965 SC 346] [LNIND 1965 SC 346], State of Madhya Pradesh (now Maharashtra) v Haji Hasan Dada [1966] 2
SCR 854 [LNIND 1965 SC 346] [LNIND 1965 SC 346] [LNIND 1965 SC 346], State of Madhya Pradesh (now Maharashtra) v
Haji Hasan Dada (1966) 17 STC 343 [LNIND 1965 SC 346] [LNIND 1965 SC 346] [LNIND 1965 SC 346]; Comr of Income-Tax
v Straw Products Ltd AIR 1966 SC 1113 [LNIND 1965 SC 349] [LNIND 1965 SC 349] [LNIND 1965 SC 349], Comr of
Income-Tax v Straw Products Ltd [1966] 2 SCR 881 [LNIND 1965 SC 349] [LNIND 1965 SC 349] [LNIND 1965 SC 349], Comr
of Income-Tax v Straw Products Ltd (1966) 60 ITR 156; Bhagwanji Bawanji Patel v State of Gujarat AIR 1971 Guj 64,
Bhagwanji Bawanji Patel v State of Gujarat (1971) 12 Guj LR 56; Mehar Singh Nanak Chand v Naunihal Thakar Dass AIR
1972 SC 2533, Mehar Singh Nanak Chand v Naunihal Thakar Dass (1973) 3 SCC 731, Mehar Singh Nanak Chand v Naunihal
Thakar Dass (1972) UJ 821; Gram Panchayat, Village Kanonda v Director, Consolidation of Holdings, Haryana, Chandigarh
AIR 1990 SC 763 [LNIND 1989 SC 512] [LNIND 1989 SC 512] [LNIND 1989 SC 512], Gram Panchayat, Village Kanonda v
Director, Consolidation of Holdings, Haryana, Chandigarh (1989) Supp 2 SCC 465, Gram Panchayat, Village Kanonda v
Director, Consolidation of Holdings, Haryana, Chandigarh [1989] Supp 1 SCR 576.
3 Debabrata Tripathy v State of West Bengal AIR 1981 Cal 114 [LNIND 1981 CAL 1] [LNIND 1981 CAL 1] [LNIND 1981 CAL
1], Debabrata Tripathy v State of West Bengal 85 Cal WN 411, Debabrata Tripathy v State of West Bengal (1981) 1 Cal LJ 269
[LNIND 1981 CAL 1] [LNIND 1981 CAL 1] [LNIND 1981 CAL 1].
4 Vaddakath Valappil Mammikutty Hajis children Muhammad Haji v Moonamkutty Valappil Kalliani Amma's children Kunhunni
Nair AIR 1993 Ker 104 [LNIND 1992 KER 381] [LNIND 1992 KER 381] [LNIND 1992 KER 381], Vaddakath Valappil
Mammikutty Hajis children Muhammad Haji v Moonamkutty Valappil Kalliani Amma's children Kunhunni Nair (1993) ILR 2 Ker
111, Vaddakath Valappil Mammikutty Hajis children Muhammad Haji v Moonamkutty Valappil Kalliani Amma's children
Kunhunni Nair (1993) 1 Ker LJ 1.
5 Ie the Railways Act 1989 s 45 (the tribunal is empowered to vary or revoke the decision after conducting such inquiry as it
considers necessary).
6 Patel Narshi Thakershi v Pradyumansinghji Arjunsinghji AIR 1970 SC 1273; Bhagwanji Bawanji Patel v State of Gujarat AIR
1971 Guj 64, Bhagwanji Bawanji Patel v State of Gujarat (1971) 12 Guj LR 56; H C Suman v Rehabititation Ministry
Employees' Cooperative House Building Society Ltd, New Delhi AIR 1991 SC 2160 [LNIND 1991 SC 421] [LNIND 1991 SC
421] [LNIND 1991 SC 421], H C Suman v Rehabititation Ministry Employees' Cooperative House Building Society Ltd, New
Delhi (1991) 4 SCC 485 [LNIND 1991 SC 421] [LNIND 1991 SC 421] [LNIND 1991 SC 421], H C Suman v Rehabititation
Ministry Employees' Cooperative House Building Society Ltd, New Delhi [1991] 3 SCR 839 [LNIND 1991 SC 421] [LNIND 1991
SC 421] [LNIND 1991 SC 421]; Gadde Venkateswara Rao v Government of Andhra Pradesh AIR 1966 SC 828 [LNIND 1965
SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254], Gadde Venkateswara Rao v Government of Andhra Pradesh [1966] 2
SCR 172 [LNIND 1965 SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254], Gadde Venkateswara Rao v Government of
Andhra Pradesh (1966) 2 SCJ 270 [LNIND 1965 SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254]; Tikaram v Mundikota
Shikshan Prasarak Mandal AIR 1984 SC 1621 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984 SC 205], Tikaram v
Mundikota Shikshan Prasarak Mandal (1984) 4 SCC 219 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984 SC 205],
Tikaram v Mundikota Shikshan Prasarak Mandal [1985] 1 SCR 339 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984
206
Page 15
SC 205]; Harbhajan Singh v Financial Comr (Taxation) Punjab AIR 1990 P & H 237, Harbhajan Singh v Financial Comr
(Taxation) Punjab (1989) 95 Punj LR 358, Harbhajan Singh v Financial Comr (Taxation) Punjab (1989) Punj LJ 273; Pukh Raj
v State of Rajasthan AIR 2000 Raj 89.
7 Kuntesh Gupta v Management of Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh) AIR 1987 SC 2186, Kuntesh Gupta v
Management of Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh) (1987) 4 SCC 525, Kuntesh Gupta v Management of
Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh) [1988] 1 SCR 357; Mehar Singh Nanak Chand v Naunihal Thakar Dass
AIR 1972 SC 2533, Mehar Singh Nanak Chand v Naunihal Thakar Dass (1973) 3 SCC 731, Mehar Singh Nanak Chand v
Naunihal Thakar Dass (1972) UJ 821.
8 The Uttar Pradesh State Universities Act 1973 s 50.
9 Kuntesh Gupta v Management of Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh) AIR 1987 SC 2186, Kuntesh Gupta v
Management of Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh) (1987) 4 SCC 525, Kuntesh Gupta v Management of
Hindu Kanya Mahavidyalaya, Sitapur (Uttar Pradesh) [1988] 1 SCR 357; see Tikaram v Mundikota Shikshan Prasarak Mandal
AIR 1984 SC 1621 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984 SC 205], Tikaram v Mundikota Shikshan
Prasarak Mandal (1984) 4 SCC 219 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984 SC 205], Tikaram v Mundikota
Shikshan Prasarak Mandal [1985] 1 SCR 339 [LNIND 1984 SC 205] [LNIND 1984 SC 205] [LNIND 1984 SC 205] (the Director
of Education, in a quasijudicial proceeding passed an order, but subsequently reversed it upon reviewing. The Supreme Court
quashed the new order as the director had no power to review his own quasi-judicial decision).
10 State of Assam v JN Roy Biswas AIR 1975 SC 2277 [LNIND 1975 SC 569] [LNIND 1975 SC 569] [LNIND 1975 SC 569],
State of Assam v JN Roy Biswas (1976) 1 SCC 234 [LNIND 1975 SC 569] [LNIND 1975 SC 569] [LNIND 1975 SC 569], State
of Assam v JN Roy Biswas [1976] 2 SCR 128 [LNIND 1975 SC 569] [LNIND 1975 SC 569] [LNIND 1975 SC 569].
11 Bachhittar Singh v State of Punjab AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108],
Bachhittar Singh v State of Punjab [1962] Supp 3 SCR 713; see also State of Punjab v Sodhi Sukhdev Singh AIR 1961 SC 493
[LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC 270], State of Punjab v Sodhi Sukhdev Singh [1961] 2 SCR 598
[LNIND 1960 SC 285] [LNIND 1960 SC 285] [LNIND 1960 SC 285], State of Punjab v Sodhi Sukhdev Singh (1961) 2 SCJ 691
[LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC 270]; Kashinath G Jalmi v The Speaker AIR 1993 SC 1873
[LNIND 1993 SC 319] [LNIND 1993 SC 319] [LNIND 1993 SC 319], Kashinath G Jalmi v The Speaker (1993) 2 SCC 703
[LNIND 1993 SC 319] [LNIND 1993 SC 319] [LNIND 1993 SC 319], Kashinath G Jalmi v The Speaker [1993] 2 SCR 820
12 Instalment Supply (Pvt) Ltd v Union of India AIR 1962 SC 53 [LNIND 1961 SC 229] [LNIND 1961 SC 229] [LNIND 1961 SC
229], Instalment Supply (Pvt) Ltd v Union of India [1962] 2 SCR 644 [LNIND 1961 SC 229] [LNIND 1961 SC 229] [LNIND 1961
SC 229], Instalment Supply (Pvt) Ltd v Union of India (1961) 2 SCJ 625.
13 Instalment Supply (Pvt) Ltd v Union of India AIR 1962 SC 53 [LNIND 1961 SC 229] [LNIND 1961 SC 229] [LNIND 1961 SC
229], Instalment Supply (Pvt) Ltd v Union of India [1962] 2 SCR 644 [LNIND 1961 SC 229] [LNIND 1961 SC 229] [LNIND 1961
SC 229], Instalment Supply (Pvt) Ltd v Union of India (1961) 2 SCJ 625; see Comr of Income-Tax, West Bengal-II, Calcutta v
Durga Prasad More AIR 1971 SC 2439, Comr of Income-Tax, West Bengal-II, Calcutta v Durga Prasad More (1972) 4 SCC 36,
Comr of Income-Tax, West Bengal-II, Calcutta v Durga Prasad More (1971) 82 ITR 540; Visheshwara Singh (decd) v Comr of
Income-Tax AIR 1961 SC 1062 [LNIND 1960 SC 344] [LNIND 1960 SC 344] [LNIND 1960 SC 344], Visheshwara Singh (decd)
v Comr of Income-Tax [1961] 3 SCR 287 [LNIND 1960 SC 344] [LNIND 1960 SC 344] [LNIND 1960 SC 344], Visheshwara
Singh (decd) v Comr of Income-Tax (1961) 41 ITR 685 [LNIND 1960 SC 344] [LNIND 1960 SC 344] [LNIND 1960 SC 344].
14 Joint Family of Udayan Chinubhai v Comr of Income-Tax, Gujarat AIR 1967 SC 762 [LNIND 1966 SC 263] [LNIND 1966 SC
263] [LNIND 1966 SC 263], Joint Family of Udayan Chinubhai v Comr of Income-Tax, Gujarat [1967] 1 SCR 913 [LNIND 1966
SC 263] [LNIND 1966 SC 263] [LNIND 1966 SC 263], Joint Family of Udayan Chinubhai v Comr of Income-Tax, Gujarat (1967)
63 ITR 416 [LNIND 1966 SC 263] [LNIND 1966 SC 263] [LNIND 1966 SC 263].
15 Comr of Income-Tax, Calcutta v British Paints India Ltd AIR 1991 SC 1338 [LNIND 1990 SC 793] [LNIND 1990 SC 793]
[LNIND 1990 SC 793], Comr of Income-Tax, Calcutta v British Paints India Ltd (1992) Supp 1 SCC 55, Comr of Income-Tax,
Calcutta v British Paints India Ltd [1990] Supp 3 SCR 525.
16 T M M Sankaralinga Nadar & Bros v Comr of Income-Tax, Madras AIR 1930 Mad 209, T M M Sankaralinga Nadar & Bros v
Comr of Income-Tax, Madras (1930) ILR 53 Mad 420, T M M Sankaralinga Nadar & Bros v Comr of Income-Tax, Madras 126
IC 273; HA Shah & Co v Comr of Income-Tax and Excess Profits Tax, Bombay City (1956) 30 ITR 618 [LNIND 1955 BOM 104]
[LNIND 1955 BOM 104] [LNIND 1955 BOM 104]. See also Burmah Shell Refineries Ltd v G B Chand (Income-Tax Officer)
(1966) 61 ITR 493.
17 Grindlays Bank Ltd v Central Government Industrial Tribunal AIR 1981 SC 606 [LNIND 1980 SC 484] [LNIND 1980 SC 484]
[LNIND 1980 SC 484], Grindlays Bank Ltd v Central Government Industrial Tribunal (1980) Supp SCC 420 [LNIND 1980 SC
484] [LNIND 1980 SC 484] [LNIND 1980 SC 484], Grindlays Bank Ltd v Central Government Industrial Tribunal [1981] 2 SCR
341 [LNIND 1980 SC 484] [LNIND 1980 SC 484] [LNIND 1980 SC 484] (tribunal has inherent jurisdiction, although not by any
express provision, but ancillary to Income Tax Acts 254 to restore and rehear an appeal disposed of on merits in the absence of
a party who was prevented by reasonable and sufficient cause from appearing before it on the date of the hearing).
18 Comr of Income-Tax (Central), Calcutta v B N Bhattacharjee AIR 1979 SC 1725 [LNIND 1979 SC 274] [LNIND 1979 SC
274] [LNIND 1979 SC 274], Comr of Income-Tax (Central), Calcutta v B N Bhattacharjee (1979) 4 SCC 121 [LNIND 1979 SC
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274] [LNIND 1979 SC 274] [LNIND 1979 SC 274], Comr of Income-Tax (Central), Calcutta v B N Bhattacharjee [1979] 2 SCR
1133.
19 Rajendra Jha v Presiding Officer, Labour Court, Bokaro Steel City, District Dhanbad AIR 1984 SC 1696 [LNIND 1984 SC
218] [LNIND 1984 SC 218] [LNIND 1984 SC 218], Rajendra Jha v Presiding Officer, Labour Court, Bokaro Steel City, District
Dhanbad (1984) Supp SCC 520, Rajendra Jha v Presiding Officer, Labour Court, Bokaro Steel City, District Dhanbad [1985] 1
SCR 544 [LNIND 1984 SC 218] [LNIND 1984 SC 218] [LNIND 1984 SC 218] (multiplicity of litigation and agitation and
re-agitation of the same dispute between the same employer and his employees is not conducive to industrial peace which is
the principal objective of all labour legislation bearing on labour adjudication).
20 As to industrial disputes see [165]INDUSTRIAL LAW.
21 Management, Shahdra (Delhi) Saharanpur Light Railway Co Ltd v S S Railway Workers Union AIR 1969 SC 513 [LNIND
1968 SC 281] [LNIND 1968 SC 281] [LNIND 1968 SC 281], Management, Shahdra (Delhi) Saharanpur Light Railway Co Ltd v
S S Railway Workers Union [1969] 2 SCR 131 [LNIND 1968 SC 281] [LNIND 1968 SC 281] [LNIND 1968 SC 281],
Management, Shahdra (Delhi) Saharanpur Light Railway Co Ltd v S S Railway Workers Union (1969) Lab IC 837; Bharat
Barrel and Drum Manufacturing Co Pvt Ltd v Bharat Barrel Employees Union AIR 1987 SC 1415 [LNIND 1987 SC 375] [LNIND
1987 SC 375] [LNIND 1987 SC 375], Bharat Barrel and Drum Manufacturing Co Pvt Ltd v Bharat Barrel Employees Union
(1987) 2 SCC 591 [LNIND 1987 SC 375] [LNIND 1987 SC 375] [LNIND 1987 SC 375], Bharat Barrel and Drum Manufacturing
Co Pvt Ltd v Bharat Barrel Employees Union [1987] 2 SCR 825 [LNIND 1987 SC 375] [LNIND 1987 SC 375] [LNIND 1987 SC
375].
22 Management, Shahdra (Delhi) Saharanpur Light Railway Co Ltd v S S Railway Workers Union AIR 1969 SC 513 [LNIND
1968 SC 281] [LNIND 1968 SC 281] [LNIND 1968 SC 281], Management, Shahdra (Delhi) Saharanpur Light Railway Co Ltd v
S S Railway Workers Union [1969] 2 SCR 131 [LNIND 1968 SC 281] [LNIND 1968 SC 281] [LNIND 1968 SC 281],
Management, Shahdra (Delhi) Saharanpur Light Railway Co Ltd v S S Railway Workers Union (1969) Lab IC 837; Bharat
Barrel and Drum Manufacturing Co Pvt Ltd v Bharat Barrel Employees Union AIR 1987 SC 1415 [LNIND 1987 SC 375] [LNIND
1987 SC 375] [LNIND 1987 SC 375], Bharat Barrel and Drum Manufacturing Co Pvt Ltd v Bharat Barrel Employees Union
(1987) 2 SCC 591 [LNIND 1987 SC 375] [LNIND 1987 SC 375] [LNIND 1987 SC 375], Bharat Barrel and Drum Manufacturing
Co Pvt Ltd v Bharat Barrel Employees Union [1987] 2 SCR 825 [LNIND 1987 SC 375] [LNIND 1987 SC 375] [LNIND 1987 SC
375].
23 United India Insurance Co Ltd v Rajendra Singh [2000] 2 LRI 12, United India Insurance Co Ltd v Rajendra Singh AIR 2000
SC 1165 [LNIND 2000 SC 477] [LNIND 2000 SC 477] [LNIND 2000 SC 477], United India Insurance Co Ltd v Rajendra Singh
(2000) SCC (Cri) 726 (no court or tribunal can be regarded as powerless to recall its order if it is convinced that the order was
passed through fraud or misrepresentation of such dimension as would affect the very basis of the claim).
24 Budhia Swain v Gopinath Deb [1999] 3 LRI 435, Budhia Swain v Gopinath Deb AIR 1999 SC 2089 [LNIND 1999 SC 512]
[LNIND 1999 SC 512] [LNIND 1999 SC 512], Budhia Swain v Gopinath Deb (1999) 4 SCC 396 [LNIND 1999 SC 512] [LNIND
1999 SC 512] [LNIND 1999 SC 512].
25 Maghraj Calla v Kajodi Mal AIR 1994 Raj 11 (Code of Civil Procedure 1908 s 11 is not exhaustive of the entire doctrine of
res judicata, and the general principle of res judicata can be applied in other situations as well which do not strictly fall within the
scope of Code of Civil Procedure s 11).

ADJUDICATORY BODIES/D. PRINCIPLES/[005.155] Jurisdiction
[005.155] Jurisdiction Lack of jurisdiction vitiates tribunal proceedings, and renders them, and the orders
passed therein, a nullity1. Moreover, inherent lack of jurisdiction in a tribunal cannot be cured or created by
the act of the parties. Absence of any objection to the jurisdiction of a tribunal, by the parties during the
course of hearing by the tribunal, cannot cure the defect of jurisdiction in the tribunal concerned3.
Jurisdiction means authority and power to hear and decide a matter. The power to decide a matter does not
depend on the regular or erroneous exercise of its power to decide, or upon the correctness of the decision,
since power to decide necessarily involves powers to decide rightly as well as wrongly4. Where a tribunal
hears an appeal from the decision of a lower authority, at the instance of a party not entitled in law to file an
appeal, the decision of the tribunal cannot be regarded as that of a jurisdictional error but may be regarded
as an error of law within jurisdiction5. If a tribunal having jurisdiction to entertain an appeal decides wrongly,
that the party has a right to appeal, then the decision is not void as it has the jurisdiction to decide6. When a
tribunal has jurisdiction to conduct an inquiry, the fact that it overlooks an applicable mandatory statutory
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provision in the course of the inquiry will not denude it of its jurisdiction7.
1 Hira Lal Patni v Kali Nath AIR 1962 SC 199 [LNIND 1961 SC 236] [LNIND 1961 SC 236] [LNIND 1961 SC 236], Hira Lal
Patni v Kali Nath [1961] 2 SCR 747, Hira Lal Patni v Kali Nath (1961) 2 SCJ 592 [LNIND 1961 SC 236] [LNIND 1961 SC 236]
[LNIND 1961 SC 236]; Budhia Swain v Gopinath Deb [1999] 3 LRI 435, Budhia Swain v Gopinath Deb AIR 1999 SC 2089
[LNIND 1999 SC 512] [LNIND 1999 SC 512] [LNIND 1999 SC 512], Budhia Swain v Gopinath Deb (1999) 4 SCC 396 [LNIND
3 See Mayapati v State of Haryana AIR 1973 P & H 356, Mayapati v State of Haryana (1972) Punj LJ 576, Mayapati v State of
Haryana (1972) Rev LR 722; Dayalal N Joshi v State Transport Authority Orissa, Cuttack AIR 1973 Ori 39, Dayalal N Joshi v
State Transport Authority Orissa, Cuttack ((1973) ILR Cut 106.
4 Harnam Singh v State of Punjab AIR 1974 P & H 288, Harnam Singh v State of Punjab (1974) 76 Punj LR 502. See also
Anisminic Ltd v Foreign Compensation Commission [1969] 2 AC 147, Anisminic Ltd v Foreign Compensation Commission
[1969] 1 All ER 208, Anisminic Ltd v Foreign Compensation Commission [1969] 2 WLR 163 HL,. See further Gurdit Singh v
State of Punjab AIR 1974 SC 1791 [LNIND 1974 SC 148] [LNIND 1974 SC 148] [LNIND 1974 SC 148], Gurdit Singh v State of
Punjab (1974) 2 SCC 260 [LNIND 1974 SC 148] [LNIND 1974 SC 148] [LNIND 1974 SC 148], Gurdit Singh v State of Punjab
[1974] 3 SCR 896 [LNIND 1974 SC 148] [LNIND 1974 SC 148] [LNIND 1974 SC 148]. See further Judicial Control [005.020]
and following.
5 Raghuraj Prasad Singh v Basudeo Singh AIR 1950 Pat 318, Raghuraj Prasad Singh v Basudeo Singh (1950) ILR 29 Pat
318, Mohan Lal v The Charge Officer, Purnea AIR 1974 Pat 275, Mohan Lal v The Charge Officer, Purnea (1974) Pat LJR 273,
Mohan Lal v The Charge Officer, Purnea (1974) BLJR 282.
6 Harnam Singh v State of Punjab AIR 1974 P & H 288, Harnam Singh v State of Punjab (1974) 76 Punj LR 502.
7 Grindlays Bank Ltd v Central Government Industrial Tribunal AIR 1981 SC 606 [LNIND 1980 SC 484] [LNIND 1980 SC 484]
[LNIND 1980 SC 484], Grindlays Bank Ltd v Central Government Industrial Tribunal (1980) Supp SCC 420 [LNIND 1980 SC
484] [LNIND 1980 SC 484] [LNIND 1980 SC 484], Grindlays Bank Ltd v Central Government Industrial Tribunal [1981] 2 SCR

ADJUDICATORY BODIES/D. PRINCIPLES/[005.156] Incidental powers
[005.156] Incidental powers Courts may imply certain incidental or ancillary powers, in the absence of an
express statutory provision authorising the adjudicatory body1, so as to enable the body to discharge its
functions effectively in consonance with the principles of natural justice2.
Some examples of such incidental powers are given below:
(1) When a body passes an ex parte decision, the body can re-open the matter to provide the
respondent an opportunity to be heard although there may be no specific statutory provision
giving the tribunal the jurisdiction to do so.
(2) An adjudicatory body can adjourn the matter from time to time.
(3) An adjudicatory body can permit a person to file a case before it as an indigent without
express statutory authority for the purpose3.
(4) A tribunal can pass an interim order ex parte against the defendant for a short duration4.
1 As to adjudicatory bodies see [005.143] and following.
2 Union of India v Paras Laminates Pvt Ltd AIR 1991 SC 696 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990 SC
426], Union of India v Paras Laminates Pvt Ltd (1990) 4 SCC 453 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990
SC 426], Union of India v Paras Laminates Pvt Ltd [1990] 3 SCR 789 [LNIND 1990 SC 426] [LNIND 1990 SC 426] [LNIND 1990
SC 426] (a two-member bench of the Customs, Excise and Gold (Control) Appellate Tribunal expressed doubt about the
correctness of an earlier decision by a three member bench. The Tribunal President referred the matter to a five member
bench. A question was raised about the validity of the action taken by the President. Under the Indian Customs Act 1962 s 129
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C(5), the Tribunal President has the power to refer to another bench any question on which there is difference of opinion among
the members of a bench, but there is no specific provision authorising him to make a reference to a bench of any question on
which there is a difference of opinion between the two benches. Nevertheless, the Supreme Court upheld the President's action
by interpreting s 129 C(5) broadly as including such a power as it was necessary for the healthy functioning of the tribunal). As
to 'principles of natural justice' see [005.054] and following.
3 A A Haja Muniuddin v Indian Railways AIR 1993 SC 361 [LNIND 1992 SC 840] [LNIND 1992 SC 840] [LNIND 1992 SC 840],
A A Haja Muniuddin v Indian Railways (1992) 4 SCC 736 [LNIND 1992 SC 840], A A Haja Muniuddin v Indian Railways (1992)
JT Supp SC 642.
4 Industrial Credit and Investment Corpn of India Ltd v Grapco Industries Ltd [1999] 3 LRI 538, Industrial Credit and Investment
Corpn of India Ltd v Grapco Industries Ltd AIR 1999 SC 1975 [LNIND 1999 SC 410] [LNIND 1999 SC 410], Industrial Credit
and Investment Corpn of India Ltd v Grapco Industries Ltd (1999) 4 SCC 710 [LNIND 1999 SC 410] [LNIND 1999 SC 410]. See
also Ramaniyam Real Estates Ltd v Triveni Apartments Owners Welfare Association AIR 1999 Mad 24 [LNIND 1998 MAD 710]
[LNIND 1998 MAD 710] [LNIND 1998 MAD 710], Ramaniyam Real Estates Ltd v Triveni Apartments Owners Welfare
Association (1998) 3 Mad LJ 205, Ramaniyam Real Estates Ltd v Triveni Apartments Owners Welfare Association (1999) 1
Mad LW 604 (the District Consumer Forum and a State Consumer Forum have the power to issue a commission to make a
local inspection as these are adjudicatory bodies having trappings of a civil court and power to adjudicate disputes among the
parties).

ADJUDICATORY BODIES/D. PRINCIPLES/[005.157] Natural justice
[005.157] Natural justice An adjudicatory body1 is bound to abide by the principles of natural justice2 when
the parent Act under which the specific body is functioning, and the rules made thereunder, do not state the
procedure to be followed by the concerned body.
A tribunal or any other adjudicatory body is not bound to follow those provisions of the Civil Procedure Code
1908 which is applicable only to courts3.
1 As to adjudicatory bodies see [005.143].
2 For principles of natural justice see [005.054].
3 Industrial Credit and Investment Corpn of India Ltd v Grapco Industries Ltd [1999] 3 LRI 538, Industrial Credit and Investment
Corpn of India Ltd v Grapco Industries Ltd AIR 1999 SC 1975 [LNIND 1999 SC 410] [LNIND 1999 SC 410], Industrial Credit
and Investment Corpn of India Ltd v Grapco Industries Ltd (1999) 4 SCC 710 [LNIND 1999 SC 410] [LNIND 1999 SC 410]
(when the parent Act of a tribunal said that it was not bound by the procedure laid down in the Code of Civil Procedure but 'shall
be guided by the principles of natural justice'; the Supreme Court observed: 'it does not mean that it will not have jurisdiction to
exercise powers of a court of civil procedure. Rather, the tribunal can travel beyond the Code of Civil Procedure and the only
fetter on its powers is to observe the principles of natural justice').

ADJUDICATORY BODIES/D. PRINCIPLES/[005.158] Breach of statutory procedural rules
[005.158] Breach of statutory procedural rules The relevant statute, under which a tribunal is created,
may prescribe procedural rules, classified into mandatory or directory rules, for the tribunal to follow along
with the principles of natural justice. Non-observance of a statutory rule of mandatory nature will invalidate
the entire proceedings1. It may not be so, if a directory rule is not observed.
1980 SC 136], Sunil Kumar Banerjee v State of West Bengal [1980] 3 SCR 179 [LNIND 1980 SC 136] [LNIND 1980 SC 136]
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Page 19
[LNIND 1980 SC 136] (the appellant complained of violation of a statutory rule forming part of the All India Services (Discipline
and Appeal) Rules 1969; the Rules provide that the enquiry officer may, after the member of the services closes his case, and
shall if the member of the services has not examined himself, generally question him on the circumstances appearing against
him in evidence for the purpose of enabling the member of the service to explain any circumstances appearing in the evidence
against him.
The Supreme Court rejected the argument that since the inquiry officer did not observe this rule so the proceedings were
invalidated. The Court said that the rule in question was very similar to Code of Criminal Procedure s 313, and that it was well
settled that mere non-examination under this section was not a ground for interference unless prejudice was established. So,
failure to comply with the rule did not vitiate the inquiry unless delinquent officer was able to establish prejudice. In the instant
case, the High Court had found that the applicant was in no way prejudiced by the failure to observe the requirement of the rule
in question).
See also RP Bhatt v Union of India AIR 1986 SC 1040 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518], RP
Bhatt v Union of India (1986) 2 SCC 651 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518], RP Bhatt v Union
of India [1985] Supp 1 SCR 947; GS Sodhi v Union of India AIR 1991 SC 1617, GS Sodhi v Union of India (1991) 2 SCC 382,
GS Sodhi v Union of India (1991) 5 JT 55; Rajendra Singh v State of Madhya Pradesh AIR 1996 SC 2736, Rajendra Singh v
State of Madhya Pradesh (1996) 5 SCC 460, Rajendra Singh v State of Madhya Pradesh (1996) 7 JT 216.

ADJUDICATORY BODIES/D. PRINCIPLES/[005.159] Non-application of mind and acting under dictation
[005.159] Non-application of mind and acting under dictation An order passed by the adjudicatory body
without application of mind to a material circumstance brought before it suffers from a patent error and will be
quashed1.
'Dictation' means an instruction from a senior authority directing the lower adjudicatory authority on how a
particular case must be decided. However, an adjudicatory body cannot be dictated to by senior authorities
as to how it must exercise its adjudicatory function in a specific case2. The Supreme Court and the high
courts have emphasized that an adjudicatory officer is not required to follow the dictates of his superior in
discharging his adjudicatory functions and must apply his own mind in deciding the matter before it3. For
instance, an order modified by the cane commissioner at the instance of the Chief Minister, who was not a
recognised authority under the statute empowering the commissioner to pass the order4, was quashed on
grounds of invalidity5. Interference by an extraneous body is contrary to the nature of the power conferred
upon the authority6. Where the Commercial Tax Officer, while assessing the appellant to tax, on the basis of
the facts as established, was of the opinion that the assessee was not liable to sales tax, but nevertheless
imposed tax on the assessee upon instructions from the assistant commissioner, the Supreme Court
characterised the procedure as non-judicial, unfair and contrary to the principles of natural justice7. Similarly,
when an assessment is made by the assistant collector, the collector to whom an appeal lies against the
order of assessment cannot control or fetter assistant collector's judgment in the matter of assessment. Any
directions issued by the collector are invalid and the proceedings before the assistant collector will be
vitiated8.
Hence, an adjudicatory decision must be rendered by the authority on which the adjudicatory power has
been conferred and not by any other authority, although it may be higher in rank than the authorised
decisionmaking authority9. Power to issue, revoke or suspend a licence conferred on the district magistrate
is exercisable on satisfaction of that officer of certain objective conditions and is plainly quasi-judicial10. The
abovementioned principle is of great importance when adjudicatory powers are being exercised by
administrative officers who function subject to the administrative control of senior officers. Although
administratively he may be subject to the 'control' of senior officers, he ought to act independently while
acting as an adjudicator11. Where a statutory provision in the parent statute provides for government 'control'
over an adjudicatory body, the courts interpret the word 'control' narrowly and confine it to 'control in
administrative matters' only and do not extend it to the discharge of its adjudicatory functions by the
concerned body12. Hence, the government cannot even issue general directions to adjudicatory bodies so as
to affect their judicial functions, and that the government's control can only extend to administrative, and not
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to quasi-judicial functions13.
In such a context, the rule being discussed here may be helpful in immunising the concerned adjudicatory
official from departmental pressures to decide a specific dispute in a particular manner. The department is
barred from issuing any directive to the adjudicator, and he is barred from seeking any guidance from the
department, as to how he has to exercise his adjudicative functions. It is for the adjudicator himself to apply
his mind to the merits of the dispute and decide the same according to his own judgment.
Reference has already been made to the concept of official or departmental bias which in relevant to
adjudication by administrative officials9.
1 Kays Concern v Union of India AIR 1976 SC 1525 [LNIND 1976 SC 158] [LNIND 1976 SC 158] [LNIND 1976 SC 158], Kays
Concern v Union of India (1976) 4 SCC 706 [LNIND 1976 SC 158] [LNIND 1976 SC 158] [LNIND 1976 SC 158], Kays Concern
v Union of India [1976] 3 SCR 1042 [LNIND 1976 SC 158] [LNIND 1976 SC 158] [LNIND 1976 SC 158] (a decision of the
Central Government in appeal from a State Government under r 54 r 54of the Mineral Concession Rules 1960 was quashed by
the Supreme Court as the Government had not applied its mind to an important consideration which was duly brought to its
notice).
2 Rosario Rodrigues v WG Renadive AIR 1970 Goa 94; See Interstate Transport Commission, New Delhi v P Manjunath
Kamath AIR 1972 SC 2250 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972 SC 341], Interstate Transport
Commission, New Delhi v P Manjunath Kamath (1973) 3 SCC 733 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972
SC 341], Interstate Transport Commission, New Delhi v P Manjunath Kamath [1973] 1 SCR 765 [LNIND 1972 SC 341] [LNIND
1972 SC 341] [LNIND 1972 SC 341].
3 Godika Transport Co v TAT Jaipur AIR 1975 Raj 174, Godika Transport Co v TAT Jaipur (1974) Raj LW 534; Papanasam
Fishing Co-operative Society Ltd v Collector, Thanjavur AIR 1975 Mad 81 [LNIND 1974 MAD 185] [LNIND 1974 MAD 185]
[LNIND 1974 MAD 185], Papanasam Fishing Co-operative Society Ltd v Collector, Thanjavur (1975) 1 Mad LJ 168, Papanasam
Fishing Co-operative Society Ltd v Collector, Thanjavur 87 Mad LW 723; Sirpur Paper Mills Ltd v Comr of Wealth Tax,
Hyderabad AIR 1970 SC 1520 [LNIND 1970 SC 216] [LNIND 1970 SC 216] [LNIND 1970 SC 216], Sirpur Paper Mills Ltd v
Comr of Wealth Tax, Hyderabad 77 ITR 6; see Nagaraj Shivarao Karjagi v Syndicate Bank Head Office, Manipal AIR 1991 SC
1507 [LNIND 1991 SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248], Nagaraj Shivarao Karjagi v Syndicate Bank Head
Office, Manipal (1991) 3 SCC 219 [LNIND 1991 SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248], Nagaraj Shivarao Karjagi
v Syndicate Bank Head Office, Manipal (1991) 2 JT 529 [LNIND 1991 SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248]
(The Ministry of Finance issued a directive to all nationalised banks that in disciplinary matters against their employees, the
advice of the Central Vigilance Commission (CVC) must be invariably followed; an order of compulsory retirement passed by
the bank on the advice of the CVC was challenged on the ground that the punishing authority did not apply its own mind and did
not exercise its power in considering the merits of the case, but merely acted on the advice of the CVC as per the directive of
the Ministry; the Supreme Court pointed out that the bank itself was of the opinion that the punishment suggested by the
Commission was too harsh and accordingly had made representations to the CVC but ultimately imposed the punishment as
suggested by the CVC. The advice of the CVC was binding on the bank authorities and they could have not have ignored it
because of the Ministry's directive. While the rules conferred an unfettered discretion on the Bank's disciplinary authority to
impose punishment, in effect, the power was completely fettered by the Ministry's directive. The Court emphasized that the
disciplinary authority must exercise its own judicial discretion to impose punishment and not act under the dictates of the CVC.
The Court thus quashed the Ministry's directive and directed the disciplinary authority to dispose of the matter according to law)'
As to 'discretion of the adjudicator' see [005.160].
4 Ie under the Sugar Cane (Control) Order 1966cl 6(1).
5 Purtabpur Co Ltd v Cane Commissioner of Bihar AIR 1970 SC 1896 [LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND
1968 SC 350], Purtabpur Co Ltd v Cane Commissioner of Bihar [1969] 2 SCR 807 [LNIND 1968 SC 350] [LNIND 1968 SC 350]
[LNIND 1968 SC 350], Purtabpur Co Ltd v Cane Commissioner of Bihar (1970) 2 SCJ 44 [LNIND 1968 SC 350] [LNIND 1968
SC 350] [LNIND 1968 SC 350].
6 State of Uttar Pradesh v Dharmandar Prasad Singh AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND
1989 SC 680], State of Uttar Pradesh v Dharmandar Prasad Singh (1989) 2 SCC 505 [LNIND 1989 SC 680] [LNIND 1989 SC
680] [LNIND 1989 SC 680], State of Uttar Pradesh v Dharmandar Prasad Singh [1989] 1 SCR 176 [LNIND 1989 SC 680]
[LNIND 1989 SC 680] [LNIND 1989 SC 680] (exercise of powers of revoking or cancelling the permission for construction given
by the development authority is of quasi-judicial nature and that in exercising of that power the authority must bring to bear an
unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the
principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would
amount to abdication and surrender of its discretion. It would then not be the authority's discretion that is exercised, but
someone else's. If an authority hands over its discretion to another body it acts ultra vires).
7 Mahadayal Prem Chandra v Commercial Tax Officer, Calcutta AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53]
[LNIND 1958 SC 53], Mahadayal Prem Chandra v Commercial Tax Officer, Calcutta [1959] SCR 551, Mahadayal Prem
Chandra v Commercial Tax Officer, Calcutta (1958) SCJ 728.
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8 Orient Paper Mills Ltd v Union of India AIR 1970 SC 1498, Orient Paper Mills Ltd v Union of India (1970) SCD 411.
9 State of Punjab v Hari Kishan Sharma AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC
362], State of Punjab v Hari Kishan Sharma [1966] 2 SCR 982 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC
362] (the state government is not justified in assuming jurisdiction conferred on the licensing authority ie the district magistrate,
under the relevant statute, regarding the power to issue a no-objection certificate for construction of a cinema house. The
scheme of the statute is that when an application for licence is made, it has to be considered by the licencing authority. If
therefore the government requires all applications for licences to be forwarded to it for disposal, it really converts itself into the
original authority itself, because under the statute an appeal lies to the state government by a peron who is aggrieved by the
rejection of his application for a licence by the licencing authority. Although, the licencing authority may grant licences subject to
the control of the state government, however the Government cannot completely oust the licensing authority and itself usurp its
function. The Legislature contemplated the licensing authority as distinct from the government. It was the licensing authority that
has to act in the first instance and not the government).
10 State of Gujarat v Krishna Cinema AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358],
State of Gujarat v Krishna Cinema (1970) 2 SCC 744 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358], State
of Gujarat v Krishna Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358].
11 State of West Bengal, through Additional Secretary Department of Excise v Ruttonjee & Co AIR 1970 Cal 548 [LNIND 1970
CAL 72] [LNIND 1970 CAL 72] [LNIND 1970 CAL 72](Bengal Excise Act 1909s (1) provided that the Excise Commissioner 'shall
be subject' to the 'control' of the State Government while the collector shall be subject to the 'control' of the Excise
Commissioner and of the state government. The Calcutta High Court ruled that the expression 'control' in this provision does
not authorise the state government to make a decision itself or issue a specific direction as to how a case is to be decided).
12 State of Punjab v Hari Kishan Sharma AIR 1966 SC 1081 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC
362], State of Punjab v Hari Kishan Sharma [1966] 2 SCR 982 [LNIND 1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC
362] (the word 'control' was interpreted by the Court restrictively; government could not directly interfere with deciding a specific
licence application which is the function of the licensing authority itself).
of Gujarat v Krishna Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]: see also
Channagiri Rangappa v District Magistrate, Chitradurga AIR 1971 Mys 244, Channagiri Rangappa v District Magistrate,
Chitradurga (1971) 1 Mys LJ 60.

ADJUDICATORY BODIES/D. PRINCIPLES/[005.160] Discretion of adjudicators
[005.160] Discretion of adjudicators Discretionary power1 of adjudicatory bodies2 cannot be controlled by

the government by issuing administrative directions3.
The Court discourages the issue of even general directions to adjudicatory bodies, with a view to enable
them to be free to exercise their own judgment independently and discharge their functions objectively
having regard to relevant considerations under the law4 and the rules made thereunder. Guidelines to be
followed by adjudicatory bodies can be laid down by enacting formal rules and not by issuing executive
directions5. Directions issued by the Interstate Transport Commission under the Motor Vehicle Act6 have no
'statutory' force or sanction and are not binding on the state or regional transport authority in discharging their
quasi-judicial function7.
Where the relevant law envisages the issue of directions to adjudicatory bodies, the directions are with
regard to administrative matters8.
Issue of non-compulsive directions or optional use of instructions as laying down relevant criteria for the
exercise of its discretion by an adjudicatory body may not be objectionable9.
1 As to discretionary power see [005.182] and following.

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3 B Rajagopala Naidu v State Transport Appellate Tribunal, Madras AIR 1964 SC 1573 [LNIND 1964 SC 29] [LNIND 1964 SC
29] [LNIND 1964 SC 29], B Rajagopala Naidu v State Transport Appellate Tribunal, Madras [1964] 7 SCR 1 [LNIND 1964 SC
29] [LNIND 1964 SC 29] [LNIND 1964 SC 29], B Rajagopala Naidu v State Transport Appellate Tribunal, Madras (1964) 2 SCJ
570 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29] (it is invalid for the government to issue orders of a
quasi-judicial nature to tribunals); Interstate Transport Commission, New Delhi v P Manjunath Kamath AIR 1972 SC 2250
[LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972 SC 341], Interstate Transport Commission, New Delhi v P Manjunath
Kamath (1973) 3 SCC 733 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972 SC 341], Interstate Transport
Commission, New Delhi v P Manjunath Kamath [1973] 1 SCR 765 [LNIND 1972 SC 341] [LNIND 1972 SC 341] [LNIND 1972
SC 341]. See also Chamkaur Singh v State of Punjab AIR 1991 P & H 26, Chamkaur Singh v State of Punjab (1991) Punj LJ
249; Jagjit Bus Service (Regd), Amritsar v State Transport Comr, Punjab AIR 1987 SC 2272 [LNIND 1987 SC 519] [LNIND
1987 SC 519] [LNIND 1987 SC 519], Jagjit Bus Service (Regd), Amritsar v State Transport Comr, Punjab (1987) 4 SCC 131
[LNIND 1987 SC 519] [LNIND 1987 SC 519] [LNIND 1987 SC 519], Jagjit Bus Service (Regd), Amritsar v State Transport
Comr, Punjab [1987] 3 SCR 661 [LNIND 1987 SC 519] [LNIND 1987 SC 519] [LNIND 1987 SC 519] (the Supreme Court has
emphasized upon the transport authorities that they have to discharge the duties imposed on them by the Motor Vehicles Act
without waiting for any policy to be announced by the state government).
4 As to relevant considerations see [005.192].
5 Motor Vehicles Acts 63A(2)(c).
6 Godika Transport Co v TAT Jaipur AIR 1975 Raj 174, Godika Transport Co v TAT Jaipur (1974) Raj LW 534.
7 See Ravi Roadways v Asia Bi AIR 1970 SC 1241, Ravi Roadways v Asia Bi (1970) 2 SCC 259 (the Supreme Court
invalidated a government order imposing certain restrictions on the Regional Transport Authority in the matter of transfer of a
permit of a stage carriage. The Court ruled that the Authority's power being quasi-judicial in nature, the government was not
competent to impose any restrictions upon the exercise of these powers through executive instructions).
570 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29] (government order issued to lay down standards for the
grant of permits under the Motor Vehicles Act 1939 s 43A was declared void, after eight years of its operation on the ground
that the power conferred on the state government to issue directions to the Transport Authority was confined to the
'administrative', and did not extend to 'quasi-judicial' functions of the Authority)
570 [LNIND 1964 SC 29] [LNIND 1964 SC 29] [LNIND 1964 SC 29] (optional use of instructions as laying down relevant criteria
for the exercise of its discretion by a quasi-judicial body may not be objectionable).

ADJUDICATORY BODIES/D. PRINCIPLES/[005.161] Acting arbitrarily
[005.161] Acting arbitrarily An adjudicatory body1 cannot render its decision on the basis of conjectures
and surmises without any legal evidence to support it2. Discretionary powers must be exercised in
accordance with well recognised principles3.
An order passed by a statutory tribunal, in exercise of its discretion, on the basis of irrelevant
considerations4, or without regard to relevant considerations5, is void and will be quashed6. For instance, the
'best judgment' assessment of a tax7 cannot be arbitrary, and must be based on reasonable data8. However,
relevancy or otherwise of one or more grounds depends on the facts of each case. An order of the State
Appellate Tribunal was quashed on the ground that it had acted in a mechanical manner without correlating
the facts mentioned by it as laid down in the concerned statutory provision9. Discretion vested in an
adjudicatory body is judicial discretion and cannot be exercised in an 'arbitrary, vague and fanciful' manner10.
The court may interfere where a tribunal disables itself from reaching a fair decision by regarding certain
considerations extraneous to the evidence and the merits of the case11, or where its conclusion on the very
face of it is arbitrary and capricious such that no reasonable person could have arrived at it12. Where
amongst the reasons relied by an adjudicatory body, certain reasons were extraneous or non-existent, but
the rest of the reasons were relevant and sufficient to justify the order, the conclusions reached by the body
214
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concerned would not be vitiated13. Furthermore, the principle that the decision of an administrative body
would be vitiated, if certain reasons relied upon by it were extraneous, applies to the cases in which the
conclusions are arrived at in subjective satisfaction and not on an assessment of objective facts or
evidence14.
Hence, an adjudicatory order based on an untenable ground15, or on vague grounds16, or on a non-existing

ground17, or without evidence18, is invalid.
An adjudicatory body in the state, inclusive of the government functioning as a quasi-judicial body, must
follow the high court ruling unless the same has been reversed by the Supreme Court19.
2 See Haji Zainullah Khan(decd) by LRS v Nagar Mahapalika, Allahabad (1994) 5 SCC 667. As to evidence see [005.150].
3 Hindustan Steels Ltd v A K Roy AIR 1970 SC 1401 [LNIND 1969 SC 497] [LNIND 1969 SC 497] [LNIND 1969 SC 497],
Hindustan Steels Ltd v A K Roy [1970] 3 SCR 343 [LNIND 1969 SC 497] [LNIND 1969 SC 497] [LNIND 1969 SC 497],
Hindustan Steels Ltd v A K Roy (1970) 2 SCJ 77 [LNIND 1969 SC 497] [LNIND 1969 SC 497] [LNIND 1969 SC 497].
Ajantha Transports Pvt Ltd, Coimbatore v T V K Transports, Pulampatti AIR 1975 SC 123, Ajantha Transports Pvt Ltd,
Coimbatore v T V K Transports, Pulampatti (1975) 1 SCC 55, Ajantha Transports Pvt Ltd, Coimbatore v T V K Transports,
Pulampatti [1975] 2 SCR 166 (an exercise of the permit issuing power, under the Motor Vehicles Act 1939 s 47, must rest on
facts and circumstances relevant for decision on the question of public interest, which has to be always placed in the forefront in
considering applications for grant of permits. Consideration of matters which are not relevant to or are foreign to the scope of
powers conferred by the Act will vitiate the grant of a permit).
Dunlop India Ltd v Union of India AIR 1977 SC 597 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390], Dunlop
India Ltd v Union of India (1976) 2 SCC 241 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390], Dunlop India
Ltd v Union of India [1976] 2 SCR 98 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390] (the Supreme Court
quashed a determination by the collector of customs as it was based on an irrelevant factor; the customs collector had
assessed the duty on the imported commodity on the sole basis of its 'ultimate use' whereas under the Indian Customs Act the
'condition of the article at the time of importing is a material factor for the purpose of classification as to under what head, duty
would be leviable. The Court ruled that the 'basis of the reason with regard to the end use of the article is absolutely irrelevant in
the context of the entry where there is no reference to the use or adaptation of the article).
5 As to relevant considerations see [005.192].
Patiala Bus (Sirhind) Pvt Ltd v State Transport Appellate Tribunal Punjab AIR 1974 SC 1174, Patiala Bus (Sirhind) Pvt Ltd v
State Transport Appellate Tribunal Punjab (1974) 2 SCC 245, Patiala Bus (Sirhind) Pvt Ltd v State Transport Appellate Tribunal
Punjab (1974) UJ 289 (the main considerations which the Regional Transport Authority was required to take into account in
granting stage carriage permits, laid down under the Motor Vehicles Act 1939 s 47, were the interest of the public in general,
and advantages to the public of the service to be provided, and these would include, inter alia, consideration of such factors as
the experience of rival claimants, their past performance, the availability of stand-by vehicles with them, their financial
resources, and the facility of well-established workshop possessed by them.
In the instant case, the State Transport Appellate Tribunal failed to take into account the abovementioned considerations and
proceeded as if the stage carriage permits were a largesse to be divided fairly and equitably amongst the rival claimants. It
merely considered what would be fair between the two claimants. The Supreme Court characterised this as an erroneous
approach, for the question to be considered by the tribunal was not as to what would be fair as between the two claimants but
what did the interest of the public, which was to be provided with an efficient and satisfactory service, demanded. The order of
the tribunal was held to suffer from an infirmity as it failed to take into account relevant considerations and proceeded on the
basis of irrelevant considerations and, thus, the order was quashed. As the order of the Transport Commissioner also suffered
from the same infirmity, that order also had to be quashed and the matter remanded to him for determination afresh, having
regard to the relevant considerations).
See Siemens Engineering and Manufacturing Co of India v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND
1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India v Union of India (1976) 2 SCC 981
[LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India v
Union of India [1976] Supp SCR 489; Dharam Chand Jain v State of Bihar AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND
1976 SC 173] [LNIND 1976 SC 173], Dharam Chand Jain v State of Bihar (1976) 4 SCC 427 [LNIND 1976 SC 173] [LNIND
1976 SC 173] [LNIND 1976 SC 173], Dharam Chand Jain v State of Bihar [1976] Supp SCR 53; see also D Rukmani Ammal v
215
Page 24
VK Izudden AIR 1983 Mad 303 [LNIND 1982 MAD 413] [LNIND 1982 MAD 413] [LNIND 1982 MAD 413], D Rukmani Ammal v
VK Izudden (1983) 1 Mad LJ 186, D Rukmani Ammal v VK Izudden (1983) 96 Mad LW 145 [LNIND 1982 MAD 413] [LNIND
1982 MAD 413] [LNIND 1982 MAD 413]; M Madhavan Nair v PE Varkey AIR 1983 Ker 254 [LNIND 1983 KER 304] [LNIND
1983 KER 304] [LNIND 1983 KER 304], M Madhavan Nair v PE Varkey (1983) Ker LJ 437; Ram Dayal v State Transport
Appellate Tribunal AIR 1983 Raj 172.
7 As to best judgment of tax see generally [280]TAXATION AND REVENUE.
8 Prem Chand Ram Lal, Sangrur v State of Punjab AIR 1971 P & H 50; N Raja Pullaiah v Deputy Commercial Tax Officer,
Kurnool AIR 1970 AP 125, N Raja Pullaiah v Deputy Commercial Tax Officer, Kurnool (1969) 73 ITR 224 (the best judgment
assessment order was quashed as being arbitrary and not being in accordance with the principles of natural justice. The court
emphasized that the tax assessment officer must make honest inquiries from sources other than the assessee and must base
his assessment on relevant dependable data).
9 Ajantha Transports Pvt Ltd, Coimbatore v T V K Transports, Pulampatti AIR 1975 SC 123, Ajantha Transports Pvt Ltd,
Coimbatore v T V K Transports, Pulampatti (1975) 1 SCC 55, Ajantha Transports Pvt Ltd, Coimbatore v T V K Transports,
Pulampatti [1975] 2 SCR 166.
10 Mahindra and Mahindra Ltd v Union of India AIR 1979 SC 798 [LNIND 1979 SC 59] [LNIND 1979 SC 59] [LNIND 1979 SC
59]at 804, 813, Mahindra and Mahindra Ltd v Union of India (1979) 2 SCC 529 [LNIND 1979 SC 59] [LNIND 1979 SC 59]
[LNIND 1979 SC 59], Mahindra and Mahindra Ltd v Union of India [1979] 2 SCR 1038 [LNIND 1979 SC 59] [LNIND 1979 SC
59] [LNIND 1979 SC 59].
11 Shardaben v MI Pandya AIR 1971 Guj 151 [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120] [LNIND 1970 GUJ 120],
Shardaben v MI Pandya (1971) 12 Guj LR 97, Shardaben v MI Pandya (1979) ACJ 222.
12 Parry & Co Ltd v Judge of the Second Industrial Tribunal, Calcutta AIR 1970 SC 1334 [LNIND 1968 SC 358] [LNIND 1968
SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v Judge of the Second Industrial Tribunal, Calcutta [1969] 2 SCR 976 [LNIND
1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v Judge of the Second Industrial Tribunal, Calcutta
(1970) 2 SCJ 433 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]; Gujarat Steel Tubes Ltd v Gujarat Steel
Tubes Mazdoor Sabha AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel
Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979
SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha [1980] 2 SCR 146 [LNIND 1979 SC 464] [LNIND 1979
SC 464] [LNIND 1979 SC 464] (high court can interfere in a writ petition for certiorari with the findings of the tribunals only within
well recognised limits, such as, where the inferior tribunal has acted without jurisdiction or in excess of it, or where it has acted
illegally as when it acts in breach of the principles of natural justice, or where there is an error of law apparent on record).
13 Zora Singh v J M Tandon AIR 1971 SC 1537, Zora Singh v J M Tandon (1971) 3 SCC 834, Zora Singh v J M Tandon
(1970) UJ 829.
14 Swaran Singh v State of Punjab AIR 1976 SC 232, Swaran Singh v State of Punjab (1976) 2 SCC 868 (where the order of a
domestic tribunal makes reference to several grounds, some relevant and existent, and others irrelevant and non-existent, the
order will be sustained if the court is satisfied that the authority would have passed the order on the basis of the relevant and
existing grounds, and the exclusion of irrelevant or non-existing grounds could not have affected the ultimate decision).
15 D Nataraja Mudaliar v State Transport Authority, Madras AIR 1979 SC 114 [LNIND 1978 SC 225] [LNIND 1978 SC 225]
[LNIND 1978 SC 225], D Nataraja Mudaliar v State Transport Authority, Madras (1978) 4 SCC 290 [LNIND 1978 SC 225]
[LNIND 1978 SC 225] [LNIND 1978 SC 225], D Nataraja Mudaliar v State Transport Authority, Madras [1979] 1 SCR 552.
16 Nepal Singh v State of Uttar Pradesh AIR 1985 SC 84 [LNIND 1984 SC 392] [LNIND 1984 SC 392] [LNIND 1984 SC 392],
Nepal Singh v State of Uttar Pradesh (1985) 1 SCC 56 [LNIND 1980 SC 186] [LNIND 1980 SC 186] [LNIND 1980 SC 186],
Nepal Singh v State of Uttar Pradesh [1985] 2 SCR 1 [LNIND 1984 SC 392] [LNIND 1984 SC 392] [LNIND 1984 SC 392].
17 PAC Systems (Pvt) Ltd v Collector of Customs AIR 1994 SC 473.
18 Bhagwati Prasad Dubey v Food Corpn of India AIR 1988 SC 434 [LNIND 1987 SC 722] [LNIND 1987 SC 722] [LNIND 1987
SC 722], Bhagwati Prasad Dubey v Food Corpn of India (1987) Supp SCC 579, Bhagwati Prasad Dubey v Food Corpn of India
(1987) 4 JT 182 [LNIND 1987 SC 722] [LNIND 1987 SC 722] [LNIND 1987 SC 722].
19 K P Nanjunath v State of Karnataka AIR 1976 Kant 158 [LNIND 1976 KANT 47] [LNIND 1976 KANT 47] [LNIND 1976 KANT
47], K P Nanjunath v State of Karnataka (1976) ILR Kant 946, K P Nanjunath v State of Karnataka (1976) 1 Kant LJ 380 [LNIND
1976 KANT 47] [LNIND 1976 KANT 47] [LNIND 1976 KANT 47], the High Court quashed an order of the State Government as
it had disregarded the rulings of the High Court. See also Collector of Customs v Pednekar & Co (Pvt) Ltd (in liq) AIR 1976 SC
1408 [LNIND 1976 SC 148] [LNIND 1976 SC 148] [LNIND 1976 SC 148], Collector of Customs v Pednekar & Co (Pvt) Ltd (in
liq) (1976) 3 SCC 590, Collector of Customs v Pednekar & Co (Pvt) Ltd (in liq) [1976] 3 SCR 971 [LNIND 1976 SC 148] [LNIND
1976 SC 148] [LNIND 1976 SC 148]; Shri Krishan v Kurukshetra University, Kurukshetra AIR 1976 SC 376 [LNIND 1975 SC
446] [LNIND 1975 SC 446] [LNIND 1975 SC 446], Shri Krishan v Kurukshetra University, Kurukshetra (1976) 1 SCC 311
[LNIND 1975 SC 446] [LNIND 1975 SC 446] [LNIND 1975 SC 446], Shri Krishan v Kurukshetra University, Kurukshetra [1976] 2
216
Page 25

ADJUDICATORY BODIES/D. PRINCIPLES/[005.162] Executive interference with administration of justice
[005.162] Executive interference with administration of justice The Supreme Court does not permit
executive interference with administration of justice by adjudicatory bodies1. Where a tribunal has been
created by a statute for the purpose of considering rival claims and granting permits on merits, a statutory
provision2 compelling the tribunal to prefer persons approved by the executive would be arbitrary and
unreasonable3. Where a statutory provision authorised the state government to remit the award of a Labour
Court or a Tribunal for reconsideration and publish the same without providing the affected party an
opportunity to be heard4, the Supreme Court ruled that the provision cannot be upheld in the absence of
necessary statutory guidelines for the exercise of the power conferred by it having regard to the fact that the
proceeding before the Labour Court or the Industrial Tribunal is in the nature of quasi-judicial proceeding
where parties have adequate opportunity to state their respective cases, to lead evidence and make all their
submissions5.
Although the government may have appointed the adjudicatory body and may be empowered to take
disciplinary action against it in certain eventualities, it is not open to the government to control the functioning
of a quasi-judicial authority and direct it to decide a particular matter before it in a particular manner6. Hence,
the court ensures that the executive does not usurp the legitimate jurisdiction of adjudicatory bodies7.
Furthermore, executive interference with the decisional process of the tribunal constitutes its contempt8, and
the Supreme Court can take suo motu cognisance of the contempt9.
1 P Sambamurthy v State of Andhra Pradesh AIR 1987 SC 663 [LNIND 1986 SC 538] [LNIND 1986 SC 538] [LNIND 1986 SC
538], P Sambamurthy v State of Andhra Pradesh (1987) 1 SCC 362 [LNIND 1986 SC 538] [LNIND 1986 SC 538] [LNIND 1986
SC 538], P Sambamurthy v State of Andhra Pradesh [1987] 1 SCR 879(Constitution of India art 371D(5) proviso is held to be
unconstitutional on the ground that it authorised executive interference with tribunal justice. Since the state government would
be a party in every service dispute brought before the tribunal, the proviso empowered a party to the litigation to override the
decision given by the tribunal in the litigation).
2 Ie under the Motor Vehicles Act 1939 s 67(7)(vi) proviso.
3 Karnataka State Tourism Development Corpn Ltd v Karnataka State Transport Appellate Tribunal AIR 1986 SC 2039 [LNIND
1986 SC 372] [LNIND 1986 SC 372] [LNIND 1986 SC 372], Karnataka State Tourism Development Corpn Ltd v Karnataka
State Transport Appellate Tribunal (1986) 4 SCC 421 [LNIND 1986 SC 372] [LNIND 1986 SC 372] [LNIND 1986 SC 372],
Karnataka State Tourism Development Corpn Ltd v Karnataka State Transport Appellate Tribunal [1986] 3 SCR 1008 [LNIND
1986 SC 372] [LNIND 1986 SC 372] [LNIND 1986 SC 372] (the specific statutory provision did not provide sufficient guidelines
for the exercise of discretion in granting approval by the Central Government and it had no nexus with the object of the
provision to promote tourism and hence invalid).
4 Ie under the Uttar Pradesh Industrial Disputes Act 1947 s 6(4).
5 BB Rajwanshi v State of Uttar Pradesh AIR 1988 SC 1089 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC
219], BB Rajwanshi v State of Uttar Pradesh (1988) 2 SCC 415 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC
219], BB Rajwanshi v State of Uttar Pradesh [1988] 3 SCR 469 [LNIND 1988 SC 219] [LNIND 1988 SC 219] [LNIND 1988 SC
219].
6 K S Ramamurthy Reddiar v Chief Comr, Pondicherry AIR 1963 SC 1464 [LNIND 1963 SC 10] [LNIND 1963 SC 10] [LNIND
1963 SC 10], K S Ramamurthy Reddiar v Chief Comr, Pondicherry [1964] 1 SCR 656 [LNIND 1963 SC 10] [LNIND 1963 SC 10]
[LNIND 1963 SC 10]; N Masthan Sahib v Chief Comr, Pondicherry AIR 1962 SC 797 [LNIND 1961 SC 382] [LNIND 1961 SC
382] [LNIND 1961 SC 382], N Masthan Sahib v Chief Comr, Pondicherry [1962] Supp 1 SCR 981, N Masthan Sahib v Chief
Comr, Pondicherry (1964) 1 SCJ 212.
7 Madhya Pradesh Irrigation Karamchari Sangh v State of Madhya Pradesh AIR 1985 SC 860 [LNIND 1985 SC 68] [LNIND
1985 SC 68] [LNIND 1985 SC 68], Madhya Pradesh Irrigation Karamchari Sangh v State of Madhya Pradesh (1985) 2 SCC 103
[LNIND 1985 SC 68] [LNIND 1985 SC 68] [LNIND 1985 SC 68], Madhya Pradesh Irrigation Karamchari Sangh v State of
Madhya Pradesh [1985] 2 SCR 1019 [LNIND 1985 SC 68] [LNIND 1985 SC 68] [LNIND 1985 SC 68]; see also V Veerarajan v
Government of Tamil Nadu AIR 1987 SC 695 [LNIND 1987 SC 49] [LNIND 1987 SC 49] [LNIND 1987 SC 49], V Veerarajan v
217
Page 26
Government of Tamil Nadu (1988) 1 SCC 479, V Veerarajan v Government of Tamil Nadu [1987] 1 SCR 997 [LNIND 1987 SC
49] [LNIND 1987 SC 49] [LNIND 1987 SC 49]; Workmen of Syndicate Bank, Madras v Government of India AIR 1985 SC 1667
[LNIND 1984 SC 301] [LNIND 1984 SC 301] [LNIND 1984 SC 301], Workmen of Syndicate Bank, Madras v Government of
India (1986) Supp SCC 483, Workmen of Syndicate Bank, Madras v Government of India (1985) 1 LLJ 93 [LNIND 1984 SC
301] [LNIND 1984 SC 301] [LNIND 1984 SC 301]; Ram Avtar Sharma v State of Haryana AIR 1985 SC 915 [LNIND 1985 SC
122] [LNIND 1985 SC 122] [LNIND 1985 SC 122], Ram Avtar Sharma v State of Haryana (1985) 3 SCC 189 [LNIND 1985 SC
122] [LNIND 1985 SC 122] [LNIND 1985 SC 122], Ram Avtar Sharma v State of Haryana [1985] 3 SCR 686 [LNIND 1985 SC
122] [LNIND 1985 SC 122] [LNIND 1985 SC 122]; Avon Services Production Agencies Pvt Ltd v Industrial Tribunal AIR 1979
SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284], Avon Services Production Agencies Pvt Ltd v
Industrial Tribunal (1979) 1 SCC 1 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284], Avon Services
Production Agencies Pvt Ltd v Industrial Tribunal [1979] 2 SCR 45 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978
SC 284]; Bombay Union of Journalists v State of Bombay AIR 1964 SC 1617 [LNIND 1963 SC 305] [LNIND 1963 SC 305]
[LNIND 1963 SC 305], Bombay Union of Journalists v State of Bombay [1964] 6 SCR 22 [LNIND 1963 SC 305] [LNIND 1963
SC 305] [LNIND 1963 SC 305], Bombay Union of Journalists v State of Bombay (1964) 1 LLJ 351 [LNIND 1963 SC 305]
[LNIND 1963 SC 305] [LNIND 1963 SC 305]; State of Bihar v D N Ganguly AIR 1958 SC 1018 [LNIND 1958 SC 92] [LNIND
1958 SC 92] [LNIND 1958 SC 92], State of Bihar v D N Ganguly [1959] SCR 1191, State of Bihar v D N Ganguly (1958) 2 LLJ
8 As to contempt of adjudicatory bodies see [005.170].
9 Ie under the Constitution of India art 129. See Income-Tax Appellate Tribunal through President v VK Agarwal AIR 1999 SC
452 [LNIND 1998 SC 1026] [LNIND 1998 SC 1026] [LNIND 1998 SC 1026], Income-Tax Appellate Tribunal through President v
VK Agarwal (1998) 4 Scale 436.

ADJUDICATORY BODIES/D. PRINCIPLES/[005.163] Non-suspension of tribunals
[005.163] Non-suspension of tribunals The tribunal1 being a quasi-judicial body, is subject to the
supervisory jurisdiction of the High Court and not subject to the control or the supervision of the
government2. Hence, the government cannot suspend the working of a tribunal3
1 As to tribunals see [005.143] and following.
2 As to discretion of adjudicatory body see [005.160].

ADJUDICATORY BODIES/D. PRINCIPLES/[005.164] Non-assessment of statutory vires
[005.164] Non-assessment of statutory vires The issue of constitutional validity of the parent statute
cannot be raised before an authority functioning under the impugned statute1.
A tribunal can decide only the issues which it is authorised to decide under the statute concerned and the
question of vires of the statute does not fall within the scope of its jurisdiction2.
1 Comr of Gift Tax, Rajasthan, Jaipur v Madan Mohan, Jaipur AIR 1970 Raj 219 [LNIND 1969 RAJ 29] [LNIND 1969 RAJ 29]
[LNIND 1969 RAJ 29], Comr of Gift Tax, Rajasthan, Jaipur v Madan Mohan, Jaipur (1969) 19 ILR Raj 940, Comr of Gift Tax,
Rajasthan, Jaipur v Madan Mohan, Jaipur (1970) Raj LW 99; CT Senthilnathan Chettiar v State of Madras (1968) 67 ITR 102
(SC); Comr of Income-Tax v Straw Products Ltd AIR 1966 SC 1113 [LNIND 1965 SC 349] [LNIND 1965 SC 349] [LNIND 1965
SC 349], Comr of Income-Tax v Straw Products Ltd [1966] 2 SCR 881 [LNIND 1965 SC 349] [LNIND 1965 SC 349] [LNIND
218
Page 27
1965 SC 349], Comr of Income-Tax v Straw Products Ltd (1966) 60 ITR 156.
2 K S Venkataraman & Co Pvt Ltd v State of Madras AIR 1966 SC 1089 [LNIND 1965 SC 262] [LNIND 1965 SC 262] [LNIND
1965 SC 262], K S Venkataraman & Co Pvt Ltd v State of Madras [1966] 2 SCR 229 [LNIND 1965 SC 262] [LNIND 1965 SC
262] [LNIND 1965 SC 262], K S Venkataraman & Co Pvt Ltd v State of Madras (1966) 60 ITR 112; Dhulabhai v State of
Madhya Pradesh AIR 1969 SC 78 [LNIND 1968 SC 99] [LNIND 1968 SC 99] [LNIND 1968 SC 99], Dhulabhai v State of
Madhya Pradesh [1968] 3 SCR 662 [LNIND 1968 SC 99] [LNIND 1968 SC 99] [LNIND 1968 SC 99], Dhulabhai v State of
Madhya Pradesh (1968) 22 STC 416; Sree Raja Kandregula Srinivasa Jagannadharao Panthulu Bahadur Guru (decd) by lrs v
State of Andhra Pradesh AIR 1971 SC 71 [LNIND 1969 SC 387] [LNIND 1969 SC 387] [LNIND 1969 SC 387], Sree Raja
Kandregula Srinivasa Jagannadharao Panthulu Bahadur Guru (decd) by lrs v State of Andhra Pradesh (1969) 3 SCC 71
[LNIND 1969 SC 387] [LNIND 1969 SC 387] [LNIND 1969 SC 387], Sree Raja Kandregula Srinivasa Jagannadharao Panthulu
Bahadur Guru (decd) by lrs v State of Andhra Pradesh [1970] 2 SCR 714 [LNIND 1969 SC 387] [LNIND 1969 SC 387] [LNIND
1969 SC 387]; see Tata Iron and Steel Co v State of Orissa (1970) 25 STC 171 [LNIND 1969 ORI 75] [LNIND 1969 ORI 75]
[LNIND 1969 ORI 75].

ADJUDICATORY BODIES/D. PRINCIPLES/[005.165] Binding decisions of higher adjudicatory bodies
[005.165] Binding decisions of higher adjudicatory bodies It is the duty of the lower authority to
implement the orders of the superior quasi-judicial body, and failure to do so would be subversive of judicial
discipline1. Where the ground warranting disregard of the superior body's order comes into existence,
subsequent to the making of the order by the superior authority, the lower authority must make a reference to
it2.
An adjudicatory body is bound by the decisions of the concerned high court3.
1 Dharam Chand Jain v State of Bihar AIR 1976 SC 1433 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173],
Dharam Chand Jain v State of Bihar (1976) 4 SCC 427 [LNIND 1976 SC 173] [LNIND 1976 SC 173] [LNIND 1976 SC 173],
Dharam Chand Jain v State of Bihar [1976] Supp SCR 53 (under the Mineral Concession Rules 1960 r 54, the Central
Government acts as a revisional tribunal against any order passed by the state government. The appellant filed an application
for grant of a mining lease with the Government of Bihar in 1958. When the State Government took no decision, he went in
revision to the Central Government in 1961, which passed an order in 1962 directing the state government to pass orders on his
application. The state government failed to follow the orders. Subsequently, he approached the Central Government in 1963. In
1964, the Central Government again directed the State Government to grant the mining lease to him. The state government
refused to implement the Centre's order.
The court upheld the order of the Central Government and ruled that the state government had no discretion to refuse to grant
the lease, as the Central Government was a superior tribunal and the state government, an inferior tribunal).
2 See note 1 above.
3 State of Orissa v Bhagaban Sarangi (1995) 1 SCC 399.

ADJUDICATORY BODIES/D. PRINCIPLES/[005.166] Maintainability of special appeal
[005.166] Maintainability of special appeal When the decision of a quasi-judicial tribunal is quashed by a
high court, the tribunal has no right to appeal against the decision, the reason being that a quasijudicial
authority has no personal interest in the confirmation or reversal of its order passed by it in its adjudicatory
capacity1. An appeal by a tribunal would amount to asserting that the decision of the high court is wrong
while its own decision is correct2.
When a high court is moved for issue of a writ of certiorari3 to quash a tribunal decision, the concerned
219
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tribunal must be made a party to the writ proceedings, since it is necessary to produce tribunal records
before the high court for quashing proceedings. The records mentioned above can be produced only by the
tribunal and not by the petitioner or the state. Hence, the tribunal whose decision is challenged is not only a
proper party but a necessary party as well4. However, in a proceeding with regard to supervisory or
revisional jurisdiction5, the tribunal whose order is challenged need not be a necessary party6.
1 Regional Transport Authority v Sri Ram AIR 1974 All 140, Regional Transport Authority v Sri Ram (1974) All LJ 387 (no
special appeal can be maintained by authorities passing orders against reversal of their orders in a writ petition).
2 See also Rent Control and Eviction Officer, Allahabad v MM Laloraya AIR 1972 All 559, Rent Control and Eviction Officer,
Allahabad v MM Laloraya (1972) All LJ 647, Rent Control and Eviction Officer, Allahabad v MM Laloraya (1972) All WR (HC)
415.
3 Ie under the Constitution of India art 226. As to writ of certiorari see [80]CONSTITUTIONAL LAW: [005.289] and following.
4 Udit Narain Singh Malpaharia v Additional Member Board of Revenue, Bihar AIR 1963 SC 786 [LNIND 1962 SC 338] [LNIND
1962 SC 338] [LNIND 1962 SC 338], Udit Narain Singh Malpaharia v Additional Member Board of Revenue, Bihar [1963] Supp
1 SCR 676, Udit Narain Singh Malpaharia v Additional Member Board of Revenue, Bihar (1964) 1 SCJ 151 [LNIND 1962 SC
338] [LNIND 1962 SC 338] [LNIND 1962 SC 338]. As to proper and necessary parties see CIVIL PROCEDURE[65.220] and
following.
5 Ie under the Constitution of India art 227: see [80]CONSTITUTIONAL LAW. As to the meaning of revisional jurisdiction see
CIVIL PROCEDURE[65.796].
6 Puzhakal Edam alias Puthen Edon v Kunchappan AIR 1974 Ker 210 [LNIND 1974 KER 42] [LNIND 1974 KER 42] [LNIND
1974 KER 42], Puzhakal Edam alias Puthen Edon v Kunchappan (1974) Ker LT 519 [LNIND 1974 KER 42] [LNIND 1974 KER
42] [LNIND 1974 KER 42]. (the term 'tribunal' comprises an adjudicatory body as well).

ADJUDICATORY BODIES/D. PRINCIPLES/[005.167] Communication of adjudicatory orders
[005.167] Communication of adjudicatory orders An order passed by an adjudicatory body must be

communicated to the concerned person for the order to be binding1. When an appeal lies from an order, the
date of knowledge of the order is the date of the order for computing the period of limitation irrespective of
the date on which it is actually passed2. Where an order of dismissal, a quasi-judicial order, is passed by the
government, the order has to be communicated to the affected person before the parties can be bound by
that order3. Similarly, an order of transfer of income-tax assessment case of an assessee must be
communicated to the assessee concerned4.
1 Dara Singh v State through Director of Enforcement AIR 1981 SC 427 [LNIND 1980 SC 433] [LNIND 1980 SC 433] [LNIND
1980 SC 433], Dara Singh v State through Director of Enforcement (1980) 4 SCC 586 [LNIND 1980 SC 433] [LNIND 1980 SC
433] [LNIND 1980 SC 433], Dara Singh v State through Director of Enforcement [1981] 1 SCR 987 [LNIND 1980 SC 433]
[LNIND 1980 SC 433] [LNIND 1980 SC 433]; Ajantha Industries v Central Board of Direct Taxes, New Delhi AIR 1976 SC 437
[LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes, New
Delhi (1976) 1 SC 1001, Ajantha Industries v Central Board of Direct Taxes, New Delhi [1976] 2 SCR 884 [LNIND 1975 SC 831]
[LNIND 1975 SC 831] [LNIND 1975 SC 831]. For communication of an administrative order see [005.174].
2 Dara Singh v State through Director of Enforcement AIR 1981 SC 427 [LNIND 1980 SC 433] [LNIND 1980 SC 433] [LNIND
1980 SC 433], Dara Singh v State through Director of Enforcement (1980) 4 SCC 586 [LNIND 1980 SC 433] [LNIND 1980 SC
433] [LNIND 1980 SC 433], Dara Singh v State through Director of Enforcement [1981] 1 SCR 987 [LNIND 1980 SC 433]
[LNIND 1980 SC 433] [LNIND 1980 SC 433] (it is wholly unjust to compute the period of limitation to file an appeal from a date
earlier than the date on which the party who is entitled to prefer an appeal has the knowledge of the order). As to limitation see
generally [205]LIMITATION OF ACTIONS.
3 Bachhittar Singh v State of Punjab AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108],
Bachhittar Singh v State of Punjab [1962] Supp 3 SCR 713.
4 Ajantha Industries v Central Board of Direct Taxes, New Delhi AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831]
[LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes, New Delhi (1976) 1 SC 1001, Ajantha Industries v
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Central Board of Direct Taxes, New Delhi [1976] 2 SCR 884 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC
831]; Collector of Central Excise, Madras v MM Rubber & Co, Tamil Nadu AIR 1991 SC 2141 [LNIND 1991 SC 431] [LNIND
1991 SC 431] [LNIND 1991 SC 431], Collector of Central Excise, Madras v MM Rubber & Co, Tamil Nadu (1992) Supp 1 SCC
471, Collector of Central Excise, Madras v MM Rubber & Co, Tamil Nadu [1991] 3 SCR 862 [LNIND 1991 SC 431] [LNIND
1991 SC 431] [LNIND 1991 SC 431] (under of the Central Excises & Salt Acts 35, the Collector of Central Excise, Madras, was
directed by the Central Board of Central Excise & Customs to file an appeal against its own orders. Under s 35E(3) of the Act,
no order can be made after the expiry of one year from the date of the decision or order of the adjudicating authority. The
Collector's order under appeal was made on 28-11-1984. A copy of the order was sent to the respondent on 21-12-1984 which
he received on the same day. The question was from which date 28-11-1984 or 21-12-1984 was the limitation of one year to be
counted within which the Board could make its order directing the collector to appeal to the tribunal against his own order. The
Supreme Court ruled, giving its literal meaning to s 35E(3), that the period of one year ought to be counted from the date on
which the Collector finally made his order, ie 28-11-1984. The date of communication of the order to the party whose rights are
affected is not the relevant date for the purpose of determining whether the Board had exercised its power within the prescribed
period if an authority is authorised to exercise a power affecting the rights of parties, he must exercise that power within the
period of limitation prescribed therefor. The order or decision of such authority becomes operative from the date when it is
signed by him. The date of such order is the date on which the order was passed. the date of communication of the order to the
party whose rights are affected is not the relevant date for determining whether the power has been exercised within the
prescribed time. so far as the party affected is concerned he should be made aware of passing of such order. Therefore the
limitation period starts from the date on which the order is communicated to him or on the date on which it was passed under
such circumstances that the parties affected by it have a reasonable opportunity of knowing of passing of the order and what it
contains).

ADJUDICATORY BODIES/D. PRINCIPLES/[005.168] Official notice
[005.168] Official notice The general principle is that a decisionmaking authority decides a matter on the
basis of the evidence placed before it in the course of the adjudicatory proceedings. The authority cannot
take any extraneous material into account to reach its decision.
The doctrine of judicial notice, as applied in the regular courts of law, is that a court requires no proof of
obvious and notorious facts and the court takes judicial notice of these, although no evidence on them has
been presented at the trial1. The doctrine of official notice deals with the extent and the manner an
adjudicator may, in making his decision, use material that has not been introduced in evidence.
The question as to the extent of use an adjudicator may make use of his own technical or departmental
knowledge as a substitute for evidence, and draw inferences on the basis of this knowledge in place of
actual evidence tendered at the hearing before him, has not been much explored so far by the courts in
India. However, in England, the courts have accepted the position that a tribunal can use its own
accumulated knowledge within certain limits, and its decision need not be based exclusively on the evidence
tendered before it2.
If the tribunal relies, for any purpose, upon relevant material of any kind within its personal knowledge, it
must be disclosed in advance to the party and he be given a fair opportunity for discussion and rebuttal3.
However, as a result of the background knowledge acquired over a period of time, the tribunal has formed
certain attitudes, subjective reasoning and mental processes, and it uses the same in deciding a controversy,
then the requirement of disclosure may not apply to it.
1 Indian Evidence Act 1872 s 57. As to the doctrine of official notice see [145]EVIDENCE.
2 Metropolitan Properties Co (FGC) Ltd v Lannon [1968] 3 All ER 304, Metropolitan Properties Co (FGC) Ltd v Lannon 19 P &
CR 856 CA, (the court ruled that the rent assessment committee was entitled to use its own knowledge and experience, but that
does not mean that it can overthrow the evidence altogether. At any rate, it should not throw over the evidence without stating
the reasons).
3
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Crofton Investment Trust Ltd v Greater London Rent Assessment Committee [1967] 2 QB 955, Crofton Investment Trust Ltd v
Greater London Rent Assessment Committee [1967] 2 All ER 1103, Crofton Investment Trust Ltd v Greater London Rent
Assessment Committee [1967] 3 WLR 256 (the tribunal, is entitled to act on its own impressions and knowledge, acquired
during its course of adjudication;. it is not bound to act only on such evidence as may or may not be put before it. But if a new
point emerges, something which may take the party by surprise, or something which the tribunal has found out and of which the
party may have no knowledge, fairness would clearly dictate that it should inform the parties and enable them to deal with those
points).
Fairmount Investments Ltd v Secretary of State for the Environment [1976] 2 All ER 865, Fairmount Investments Ltd v
Secretary of State for the Environment [1976] 1 WLR 1255, Fairmount Investments Ltd v Secretary of State for the Environment
75 LGR 33 HL,; see also R v London Rent Assessment Panel Committee, exp Metropolitan Properties Co (FGC) Ltd [1969] 1
QB 577, R v London Rent Assessment Panel Committee, exp Metropolitan Properties Co (FGC) Ltd [1968] 3 WLR 694, R v
London Rent Assessment Panel Committee, exp Metropolitan Properties Co (FGC) Ltd 112 Sol Jo 585; Hammington v Berker
Sportscraft Ltd [1980] ICR 248 EAT,.
(in the United States of America, the doctrine of official notice permits utilisation by an administrative agency of its special or
expert knowledge to aid it in disposing of the matters coming before it. Even when official notice is permitted, it is subject to one
fundamental safeguard that the facts noticed are subject to challenge: of the American Administrative Procedure Actsection
556(E) provides that where an agency decision rests on official notice of a material fact not appearing in the evidence in the
record, a party shall on timely request be afforded an opportunity to show the contrary.
The 'official notice' doctrine is more or less a device for expediting administrative procedure. Under it, an agency can rely upon
materials familiar to it in its expert capacity without the need formally to introduce them in evidence. But this does not mean that
the private party need not be apprised of these matters if they form the basis of the agency's decision. The doctrine of 'official
notice' must thus be subject to the safeguard that the parties be informed of materials so noticed and be given an opportunity to
explain or rebut them. The parties are entitled to be apprised of the data upon which the agency is acting. They are entitled not
only to refute but, what in this situation is usually more important, to supplement, explain, and give different perspective to the
facts upon which the agency relies).
See Davis, 'Administrative Law Treatise', (1958)p 338; Schwartz, 'Administrative Law--A Casebook', (1988)pp 576-94.

ADJUDICATORY BODIES/D. PRINCIPLES/[005.169] Findings of fact by adjudicatory bodies
[005.169] Findings of fact by adjudicatory bodies The courts do not re-appreciate the evidence or weigh it
like an appellate authority1. However, adjudicatory authorities are not permitted to relax their standards just
because the courts do not interfere with their findings of fact2. Hence, although the judicial policy is not to
interfere with the findings of fact by adjudicatory bodies3, the decisions of adjudicatory bodies may be
challenged before the courts as provided by the Constitution4.
The courts will quash the findings of fact by a tribunal on grounds as:
(1) lack of evidence to support the findings;

(2) failure to consider material evidence;
(3) consideration of inadmissible evidence in arriving at its conclusions; and
(4) the findings are perverse5.
1 Haji Zainullah Khan (decd) by LRS v Nagar Mahapalika, Allahabad (1994) 5 SCC 667; Mohan Amba Prasad Agnihotri v
Bhaskar Balwant Aher (decd) through LRS AIR 2000 SC 931 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC
406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher (decd) through LRS (2000) 3 SCC 190 [LNIND 2000 SC 406]
[LNIND 2000 SC 406] [LNIND 2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher (decd) through LRS
(2000) 2 JT 558 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406]; Union of India v Himmat Singh Chahar
[1999] 3 LRI 649, Union of India v Himmat Singh Chahar AIR 1999 SC 1980 [LNIND 1999 SC 542] [LNIND 1999 SC 542]
[LNIND 1999 SC 542], Union of India v Himmat Singh Chahar (1999) 4 SCC 521 [LNIND 1999 SC 542] [LNIND 1999 SC 542]
[LNIND 1999 SC 542](notwithstanding the finality of the orders of the competent authority in court martial proceedings, the high
court is entitled to exercise its power of judicial review by invoking jurisdiction under the Constitution of India art 226 but that
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would be for a limited purpose for finding out whether there has been infraction of any mandatory provision of the Act
prescribing the procedure which has caused gross miscarriage of justice or for finding out that whether there has been violation
of the principles of natural justice which vitiates the entire proceeding or that the authority exercising the jurisdiction has not
been vested with the jurisdiction under the Act. The said power of judicial review cannot be a power of an appellate authority
permitting the high court to re-appreciate the evidence and in coming to a conclusion that the evidence is insufficient for the
conclusion arrived at by the competent authorities. At any rate it cannot be higher than the high court jurisdiction exercised
under Constitution of India art 227 against an order of an inferior tribunal).
2 Comr of Income-Tax, Calcutta v Biju Patnaik AIR 1986 SC 1428 [LNIND 1986 SC 188] [LNIND 1986 SC 188] [LNIND 1986
SC 188], Comr of Income-Tax, Calcutta v Biju Patnaik (1986) 3 CC 310, Comr of Income-Tax, Calcutta v Biju Patnaik [1986] 3
3 As to evidence see [005.150].
4 Ie under the Constitution arts 226, 227, 136, or under the Income-tax Act 1961. See [005.210] and following.
5 Aziz Wani v Director Consolidation, Srinagar AIR 1971 J & K 67; Bank of India v Degala Suryanarayana AIR 1999 SC 2407
[LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC 580], Bank of India v Degala Suryanarayana (1999) 4 JT 489
[LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC 580], Bank of India v Degala Suryanarayana (1999) 4 Scale 75
[LNIND 1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC 580]; see Haji Zainullah Khan (decd) by LRS v Nagar
Mahapalika, Allahabad (1994) 5 SCC 667.

ADJUDICATORY BODIES/D. PRINCIPLES/[005.170] Contempt of adjudicatory bodies
[005.170] Contempt of adjudicatory bodies Contempt of Courts Act 1971 vests a high court with the same
power in respect of contempt of courts subordinate to it as it has in respect of contempt of itself1. The high
court can deal with the contempt of a subordinate court either suo motu, or on a reference made by the
Advocate General2.
'Subordination' for the purpose of the Contempt of Courts Act 1971 means judicial subordination and not
'subordination' within the hierarchy of courts3. For an adjudicatory body to be regarded as a 'court' for the
purposes of the Act, the body must have, apart from having some of the trappings of a judicial tribunal4, the
power to issue an order or a definitive judgment which has finality and authoritativeness which are the
essential tests of judicial pronouncement5. For instance, a high court can deal with matters of contempt of
the Registrar of Co-operative Societies6.
Moreover, under the Constitution, a high court has superintendence over all courts and tribunals within its
territorial jurisdiction7. Since the definition of 'tribunal' includes all adjudicatory bodies, a high court can deal
with matters of contempt in respect of an adjudicatory body which falls under its judicial superintendence8.
Furthermore, the constitution empowers the Supreme Court to take cognisance of contempt of tribunals9.
The following four tests are evolved by the courts for regarding an adjudicatory body as a 'court' for the
purposes of the Contempt of Courts Act 1971:
(1) Nature of the power exercised by the concerned authority: The power entrusted to the authority
must be judicial power of the state, meaning thereby that the authority must be enjoined to
adjudicate upon the disputes between the parties. There must be a lis between the contesting
parties presented before the authority for adjudication and decision.
(2) Source of the power: It must emanate from a statute and must not be based merely on
agreement between the parties.
(3) Manner of exercise of power: It must partake of essential attributes of a 'court' though minor
trappings may be absent.
(4) Binding decision: The resultant or the end product of the exercise of such power by the
authority must result in a binding decision between the parties so far as the authority is
concerned10.
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Tribunals may be empowered specifically by the respective statute to take cognisance of its contempt11.
Such a tribunal is competent to punish a person committing its contempt12.
Under the Indian Penal Code, any one intentionally offering any insult, or causing any interruption to a public
servant during any stage of judicial proceeding, is punishable13. However, the abovementioned provision is
operational when the proceeding before the concerned officer is a 'judicial' proceeding. Hence the parent Act
setting up an adjudicatory body usually declares that the proceeding before this body will be deemed to be
'judicial proceeding' for the purpose of the Indian Penal Code14.
Furthermore, under the Code of Criminal Procedure 1973, cognisance of an offence punishable under the
Indian Penal Code15 will be taken only on the written complaint of the concerned court16. Hence, the parent
Act creating the adjudicatory body in question will declare the concerned body as a 'court' for the purposes of
the Code of Criminal Procedure17.
The essential ingredients of the offence under the Indian Penal Code 1860 are:
(1) intention;
(2) insult or interruption to the public servant, and
(3) the public servant sitting in a judicial proceeding18.
Accordingly, if the act complained of amounts to 'scandalizing the court', then it would amount to contempt of
court triable by the high court under the Contempt of Courts Act 197119. Furthermore, even where the facts
of a case disclose an offence as per the Indian Penal Code 186020, the case may be tried as a contempt, if
the act complained of is not confined to what is covered by only the Code21.
1 Contempt of Courts Act 1971 s 10.
2 Ie the Contempt of Courts Act 1971 s 14. See S K Sarkar Member, Board of Revenue, Uttar Pradesh, Lucknow v Vinay
Chandra Misra AIR 1981 SC 723 [LNIND 1980 SC 482] [LNIND 1980 SC 482] [LNIND 1980 SC 482], S K Sarkar Member,
Board of Revenue, Uttar Pradesh, Lucknow v Vinay Chandra Misra (1981) 1 SCC 436 [LNIND 1980 SC 482] [LNIND 1980 SC
482] [LNIND 1980 SC 482], S K Sarkar Member, Board of Revenue, Uttar Pradesh, Lucknow v Vinay Chandra Misra [1981] 2
3 S K Sarkar Member, Board of Revenue, Uttar Pradesh, Lucknow v Vinay Chandra Misra AIR 1981 SC 723 [LNIND 1980 SC
482] [LNIND 1980 SC 482] [LNIND 1980 SC 482], S K Sarkar Member, Board of Revenue, Uttar Pradesh, Lucknow v Vinay
Chandra Misra (1981) 1 SCC 436 [LNIND 1980 SC 482] [LNIND 1980 SC 482] [LNIND 1980 SC 482], S K Sarkar Member,
Board of Revenue, Uttar Pradesh, Lucknow v Vinay Chandra Misra [1981] 2 SCR 331 [LNIND 1980 SC 482] [LNIND 1980 SC
482] [LNIND 1980 SC 482](the phrase 'subordination to it' used in Contempt of Courts Act 1971 s 10 is wide enough to include
all courts which are judicially subordinate to the high court even though administrative control over them under art 235 of the
Constitution does not vest in the high court).
5 Brajnandan Sinha v Jyoti Narain AIR 1956 SC 66 [LNIND 1955 SC 98] [LNIND 1955 SC 98] [LNIND 1955 SC 98],
Brajnandan Sinha v Jyoti Narain [1955] 2 SCR 955 [LNIND 1955 SC 98] [LNIND 1955 SC 98] [LNIND 1955 SC 98], Brajnandan
Sinha v Jyoti Narain (1956) SCJ 155; SK Sarkar Member, Board of Revenue, Uttar Pradesh, Lucknow v Vinay Chandra Misra
AIR 1981 SC 723 [LNIND 1980 SC 482] [LNIND 1980 SC 482] [LNIND 1980 SC 482], SK Sarkar Member, Board of Revenue,
Uttar Pradesh, Lucknow v Vinay Chandra Misra (1981) 1 SCC 436 [LNIND 1980 SC 482] [LNIND 1980 SC 482] [LNIND 1980
SC 482], SK Sarkar Member, Board of Revenue, Uttar Pradesh, Lucknow v Vinay Chandra Misra [1981] 2 SCR 331 [LNIND
6 Jugal Kishore Sinha v Sitamarhi Central Co-operative Bank Ltd AIR 1967 SC 1494 [LNIND 1967 SC 70] [LNIND 1967 SC 70]
[LNIND 1967 SC 70], Jugal Kishore Sinha v Sitamarhi Central Co-operative Bank Ltd [1967] 3 SCR 163 [LNIND 1967 SC 70]
[LNIND 1967 SC 70] [LNIND 1967 SC 70] (the assistant registrar, while exercising adjudicatory functions, is empowered to
summon and examine witnesses on oath, to order inspection of documents, to hear the parties after framing issues, to review
his own order and even exercise the inherent jurisdiction of courts mentioned in Code of Civil Procedure s 151 and hence is
regarded as a court subordinate to the high court. Accordingly, in adjudicating upon a dispute referred under State Co-operative
Societies Acts 48, the registrar is, to all intents and purposes, a court discharging the same functions and duties in the same
manner as a court of law is expected to do).
7 Ie under the Constitution of India art 227: see [005.212]. See further [80]CONSTITUTIONAL LAW.

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Ie under the Constitution of India art 129: see[80]CONSTITUTIONAL LAW. Income-Tax Appellate Tribunal through President v
VK Agarwal AIR 1999 SC 452 [LNIND 1998 SC 1026] [LNIND 1998 SC 1026] [LNIND 1998 SC 1026], Income-Tax Appellate
Tribunal through President v VK Agarwal (1998) 4 Scale 436(under the Constitution of India art 129, the Supreme Court enjoys
the jurisdiction to take cognisance of the contempt of the Income-tax Appellate Tribunal which performs judicial functions and is
subordinate to the high court. In the instant case, the Secretary Ministry of Law, renote a letter to the President of the tribunal
adversely commenting on a tribunal decision in a specific case characterising it as judicial impropriety of the highest order.
The secretary was held guilty of committing contempt of the tribunal as he questioned the bona fides of the tribunal member in
deciding a specific case and asked them to explain the judicial order which they had passed. Hence, he tampered with the
judicial process and interfered with judicial decision-making. The court characterised the letter as an attempt to affect their
decision-making and a clear threat to the members of the tribunal and their independent functioning). As to executive
interference resulting in contempt see [005.162].
10 See Shaikh Mohammedbhikhan Hussainbhai v Manager, Chandrabhanu Cinema AIR 1986 Guj 209 [LNIND 1985 GUJ 25]
[LNIND 1985 GUJ 25] [LNIND 1985 GUJ 25], Shaikh Mohammedbhikhan Hussainbhai v Manager, Chandrabhanu Cinema
(1986) 1 Guj LR 1, Shaikh Mohammedbhikhan Hussainbhai v Manager, Chandrabhanu Cinema (1985) Guj LH 1076.
11 Ie the Monopolies and Restrictive Trade Practices Commission and Customs, Excise and Gold (Control) Appellate Tribunal.
As to tribunals formed by statutes see [005.143] and following.
12
Administrative Tribunals Act 1985 s 17.
(powers to punish for contempt: A tribunal shall have, and exercise, the same jurisdiction, powers and authority in respect of
contempt of itself as a high court has and may exercise and, for this purpose, the provisions of the Contempt of Courts Act
1971, shall have effect subject to the modifications that:
(1) the references therein to a high court shall be construed as including a reference to such tribunal;
(2) the references to the Advocate-General in section 15 of the said act shall be construed:
(i) in relation to the Central Administrative Tribunal, as a reference to the Attorney-General or the
Solicitor-General or the additional Solicitor-General).
13 Indian Penal Code 1860 s 228.
14 For instance, Companies Acts 10E (4)(D) declares that the proceeding before a bench of the Company Law Board shall be
deemed to be a 'judicial proceeding'.
15 See note 13 above.
16 Code of Criminal Procedure s 195(1)(b).
17 For instance, the Advocates Act 1961 s 42(2) declares the disciplinary committee of a bar council to be a 'court' for the
purpose of the Code of Criminal Procedure s 195(1)(b) and the proceeding before it to be a judicial proceeding within the
meaning of the Indian Penal Code s 228.
19 State of Madhya Pradesh v Reva Shankar AIR 1959 SC 102 [LNIND 1958 SC 110] [LNIND 1958 SC 110] [LNIND 1958 SC
110], State of Madhya Pradesh v Reva Shankar [1959] SCR 1367 [LNIND 1958 SC 110] [LNIND 1958 SC 110] [LNIND 1958
SC 110], State of Madhya Pradesh v Reva Shankar (1959) Cr LJ 251.
21 Waryam Singh v Sadhu Singh AIR 1972 SC 905, Waryam Singh v Sadhu Singh (1972) 1 SCC 796, Waryam Singh v Sadhu
Singh (1972) SCC (Cri) 477.

ADJUDICATORY BODIES/D. PRINCIPLES/[005.171] Disciplinary action against adjudicators
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[005.171] Disciplinary action against adjudicators When an administrative officer performs judicial or
quasi-judicial functions, disciplinary proceedings regarding any of his actions in the course of such
proceedings can be initiated, where the actions indicate culpability1. Moreover, no disciplinary action can be
taken against an adjudicator on the ground that he has rendered a mistaken or a wrong decision2. In
consonance with the policy mentioned above, the court quashed disciplinary proceedings against an income
tax officer on the ground that the charge against the officer neither disclosed culpability nor was there any
allegation of accepting any bribe or trying to favour any party. Any irregularity in his passing the order could
be remedied by appealing to the higher authority3. Hence, judicial or quasi-judicial decision which is
erroneous or even palpably erroneous is no ground to initiate disciplinary proceedings4.
However, an officer acting as an adjudicator is not completely immune from disciplinary proceedings5.
Failure to exercise quasi-judicial power properly amounts to misconduct6.
The court has laid down the following grounds, although not exhaustive, on which disciplinary action can be
taken against such officials7:
(1) where the officer has acted in a manner as would reflect on his reputation for integrity or good
faith or devotion to duty;
(2) if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(3) if he has acted in a manner which is unbecoming of a government servant;
(4) if he has acted negligently or that he has omitted the prescribed conditions which are essential
for the exercise of the statutory powers;
(5) if he has acted in order to unduly favour a party;
(6) if he has been actuated by corrupt motive.
A technical violation or an erroneous order or the action not falling under the above enumerated instances,
does not warrant disciplinary action8.
Since all subordinate judicial officers are under the disciplinary control of the high court concerned, when a
judicial officer acts as an adjudicator, disciplinary action against a judicial officer acting as an adjudicator can
be initiated only by a high court9.
1 Union of India v A N Saxena AIR 1992 SC 1233 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284], Union of
India v A N Saxena (1992) 3 SCC 124 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284], Union of India v A N
Saxena [1992] 2 SCR 364 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND 1992 SC 284].
2 Union of India v RK Desai (1993) 2 SCC 49 [LNIND 1967 SC 320] [LNIND 1967 SC 320] [LNIND 1967 SC 320], Union of
India v RK Desai (1993) 1 LLN 739.
3 Zunjarrao Bhikaji Nagarkar v Union of India [1999] 4 LRI 295, Zunjarrao Bhikaji Nagarkar v Union of India AIR 1999 SC 2881
[LNIND 1999 SC 658] [LNIND 1999 SC 658] [LNIND 1999 SC 658], Zunjarrao Bhikaji Nagarkar v Union of India (1999) 7 SCC
409 [LNIND 1999 SC 658] [LNIND 1999 SC 658] [LNIND 1999 SC 658] (Quashing the initiation of disciplinary proceedings
against a quasi-judicial officer on the ground that no 'extraneous consideration' influencing the quasi-judicial order was alleged.
the court emphasized that a wrong interpretation of law cannot be a ground for misconduct' as this mistake can always be
corrected in appeal. As a quasi-judicial officer he is always subject to supervision in appeal. However, it will be 'a different
matter altogether if it is deliberate and actuated by mala fides'. The court has explained the rationale underlying the ruling as
follows: 'If, every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of
quasijudicial officers and in order to maintain any charge sheet against a quasijudicial authority something more has to be
alleged than a mere mistake of law, eg. in the nature of some extraneous consideration influencing the quasi-judicial order. The
entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would
fall into disrepute, if officers performing such functions are inhibited in performing their function, without fear or favour because
of the constant threat of disciplinary proceedings).
4 Union of India v R K Desai (1993) 2 SCC 49 [LNIND 1967 SC 320] [LNIND 1967 SC 320] [LNIND 1967 SC 320], Union of
India v R K Desai (1993) 1 LLN 739; Union of India v A N Saxena AIR 1992 SC 1233 [LNIND 1992 SC 284] [LNIND 1992 SC
284] [LNIND 1992 SC 284], Union of India v A N Saxena (1992) 3 SCC 124 [LNIND 1992 SC 284] [LNIND 1992 SC 284]
[LNIND 1992 SC 284], Union of India v A N Saxena [1992] 2 SCR 364 [LNIND 1992 SC 284] [LNIND 1992 SC 284] [LNIND
1992 SC 284].
5 See note 4 above.

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6 Government of Tamil Nadu v K N Ramamurthy AIR 1997 SC 3571 [LNIND 1997 SC 1083] [LNIND 1997 SC 1083] [LNIND
1997 SC 1083], Government of Tamil Nadu v K N Ramamurthy (1997) 7 SCC 101 [LNIND 1997 SC 1083] [LNIND 1997 SC
1083] [LNIND 1997 SC 1083], Government of Tamil Nadu v K N Ramamurthy (1997) 7 JT 401.
7 Union of India v KK Dhawan AIR 1993 SC 1478 [LNIND 1993 SC 67] [LNIND 1993 SC 67] [LNIND 1993 SC 67], Union of
India v KK Dhawan (1993) 2 SCC 56 [LNIND 1993 SC 67] [LNIND 1993 SC 67] [LNIND 1993 SC 67], Union of India v KK
Dhawan [1993] 1 SCR 296 [LNIND 1993 SC 67] [LNIND 1993 SC 67] [LNIND 1993 SC 67].
8 See note 7 above.
9 Union of India v Upendra Singh (1994) 3 SCC 357 [LNIND 1994 SC 238] [LNIND 1994 SC 238] [LNIND 1994 SC 238], Union
of India v Upendra Singh (1994) 1 LLJ 808.

ADMINISTRATIVE LAW/12. ADMINISTRATIVE POWERS/(1) INTRODUCTION/[005.172] Meaning and
nature
[005.172] Meaning and nature The administrative organ of the state performs political, regulatory and
managerial functions and its powers are broadly classified as legislative1, quasi-judicial and administrative2.
The administrative organ, under its legislative power, lays down a general rule of conduct or policy to be
followed in the generality of cases and, under its non-legislative power, decides on the basis of the
circumstance of each case3. Furthermore, a legislative order, as well as a non-legislative order, can be
passed under the same statutory provision. For instance, statutes enable the government to grant exemption
to an individual or class of industries from the operation of the concerned statute. Where a specified
individual is exempted from the operation of law, the order is characterised as non-legislative, and where
exemption from the operation of a law is granted to a particular class, the order is characterised as
legislative4.
The term 'administrative' is applied to designate functions of the administrative organ where the procedure of
providing opportunity to the concerned party to be heard is not applicable either by way of natural justice or
fairness5. In certain situations, one or more elements of the hearing procedure may be present, but the
function may still be regarded basically as administrative and not adjudicatory6. However, the courts can
apply the rule of natural justice against bias in case of exercise of certain administrative functions7. The test
to identify an administrative function is that of non-applicability of the audi alteram partem rule8, but not
necessarily the exclusion of the rule against bias. The reason is that if the rule against bias is not invoked
then patently partisan administrative decisions may go unchallenged in a court9. Furthermore, every order
passed administratively cannot be subjected to the application of principles of natural justice10. An
administrative function is called quasi-judicial when there is an obligation to adopt the judicial approach and
to comply with the basic requirements of justice. When there is no such obligation, the decision is considered
purely administrative11.
Hence the administrative powers range from simple matters as registration of births and deaths to regulation
of a business activity, acquiring property for a public purpose, and detaining a person on the subjective
satisfaction of the executive fiat. Administrative powers, inter alia, include grant of licences and
permissions12, ordering investigation and inquiries13, undertaking searches, seeking information, seizing
property, even destroying property of an individual without hearing him in the interest of public health, safety
and morality14.
1 As to legislative power see [005.009].
2 As to quasi-judicial and administrative powers see [005.172] and following.
3 See Registrar of Co-operative Societies v K Kunjabmu AIR 1980 SC 350 [LNIND 1979 SC 472] [LNIND 1979 SC 472]
[LNIND 1979 SC 472], Registrar of Co-operative Societies v K Kunjabmu (1980) 1 SCC 340 [LNIND 1979 SC 472] [LNIND
1979 SC 472] [LNIND 1979 SC 472], Registrar of Co-operative Societies v K Kunjabmu [1980] 2 SCR 260 [LNIND 1979 SC
227
Page 36
472] [LNIND 1979 SC 472] [LNIND 1979 SC 472].
4 See Ramakanyadevi v State of Karnataka AIR 1980 Kant 182, Ramakanyadevi v State of Karnataka (1980) 1 Kant LJ 407.
5 As to 'principles of natural justice' see [005.054].
6 As to difference between administrative order and adjudicatory order see [005.002].
7 AK Kraipak v Union of India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], AK
Kraipak v Union of India [1970] 1 SCR 457 [LNIND 1969 SC 197] [LNIND 1969 SC 197] [LNIND 1969 SC 197], AK Kraipak v
Union of India (1969) 1 SCA 605; See Ashok Kumar Yadav v State of Haryana AIR 1987 SC 454 [LNIND 1985 SC 197]
[LNIND 1985 SC 197] [LNIND 1985 SC 197], Ashok Kumar Yadav v State of Haryana (1985) 4 SCC 417 [LNIND 1985 SC 197]
[LNIND 1985 SC 197] [LNIND 1985 SC 197], Ashok Kumar Yadav v State of Haryana (1986) Lab IC 1417; J Mohapatra and
Co v State of Orissa AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J Mohapatra and
Co v State of Orissa (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J Mohapatra and
Co v State of Orissa [1985] 1 SCR 322 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386]. As to bias see
[005.073].
8 As to audi alteram partem see [005.054].
9 See Franklin v Minister of Town and Country Planning [1948] AC 87, Franklin v Minister of Town and Country Planning
[1947] 2 All ER 289; Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena AIR 1975 SC 2057 [LNIND 1975 SC 239]
[LNIND 1975 SC 239] [LNIND 1975 SC 239], Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena (1975) 2 SCC 818
[LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239], Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena
10 Union of India v Amrik Singh AIR 1991 SC 564 [LNIND 1991 SC 53] [LNIND 1991 SC 53] [LNIND 1991 SC 53], Union of
India v Amrik Singh (1991) 1 SCC 654 [LNIND 1991 SC 53] [LNIND 1991 SC 53] [LNIND 1991 SC 53], Union of India v Amrik
Singh [1991] 1 SCR 182 [LNIND 1991 SC 53] [LNIND 1991 SC 53] [LNIND 1991 SC 53](a post-confirmation petition was filed
under Border Security Force Act 1968 s 117(2) and it is held that the authority which disposed of the same is not a court and
every order passed administratively cannot be subjected to the rigours of principles of natural justice).
11 Neelima Misra v Harinder Kaur Paintal AIR 1990 SC 1402 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC
173], Neelima Misra v Harinder Kaur Paintal (1990) 2 SCC 746 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND 1990 SC
173], Neelima Misra v Harinder Kaur Paintal [1990] 2 SCR 84; Harinder Kaur v Chancellor, Lucknow University (1989) Lab IC
2248.
12 See Vellore Educational Trust v State of Andhra Pradesh AIR 1988 SC 130, Vellore Educational Trust v State of Andhra
Pradesh (1987) Supp SCC 543, Vellore Educational Trust v State of Andhra Pradesh (1987) 5 JT 396 (grant of permission to
start University is an administrative power); Kishan Chand Arora v Commissioner of Police Calcutta AIR 1961 SC 705 [LNIND
1960 SC 330] [LNIND 1960 SC 330] [LNIND 1960 SC 330], Kishan Chand Arora v Commissioner of Police Calcutta [1961] 3
SCR 135 [LNIND 1960 SC 330] [LNIND 1960 SC 330] [LNIND 1960 SC 330]; Chingleput Bottlers v Majestic Bottling Co AIR
1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79], Chingleput Bottlers v Majestic Bottling Co
(1984) 3 SCC 258 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79], Chingleput Bottlers v Majestic Bottling Co
(1984) UJ 570 (SC).
13 See Ram Krishna Dalmia v SR Tendolkar AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC
31], Ram Krishna Dalmia v SR Tendolkar [1959] SCR 279 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31]; see
further classification of powers [005.175].
14 Collector, Central Excise, Allahabad v L Kashi Nath Jewellers AIR 1972 All 231, Collector, Central Excise, Allahabad v L
Kashi Nath Jewellers (1972) All LJ 204.

ADMINISTRATIVE LAW/12. ADMINISTRATIVE POWERS/(1) INTRODUCTION/[005.173] Administrative
and adjudicatory orders
[005.173] Administrative and adjudicatory orders The following are the significant differences between
administrative and adjudicatory orders:
(1) The affected party is not required to be provided an opportunity of being heard if the nature of
the function, being discharged by the administration, is regarded as administrative. The
avenues which the administrator adopts to decide an issue are left to his discretion. Where the
function is adjudicatory in nature, the concerned party must be heard before the order is
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Page 37
passed1. However, where a favourable administrative order is reversed or modified to one's

disadvantage or cancelled, it is necessary for the concerned authority to comply with the
principles of natural justice2 and the grounds for the change must be justifiable3.
(2) The administration has more flexibility in exercising its administrative powers than adjudicatory
powers. When the administration decides in its adjudicative capacity, on merits of the
controversy after hearing the concerned parties, the principle of res judicata is applicable and
the decision becomes binding not only on the concerned parties but also on the decision
making authority itself4. The abovementioned decision can be reviewed by the appellate
authority if the law provides for revision or for an appeal from the decision-making authority.
However, the principle of res judicata does not apply to administrative decisions. The order is
not final and the concerned authority making such an order is entitled to change or review the
same after reconsidering the matter5. Hence, a licensing officer, having refused to issue a
license to an applicant, may subsequently issue the license after reconsidering the matter6.
Furthermore, the government can issue or re-issue administrative directions7. A reviewed
administrative decision remains subject to judicial review on all the grounds on which an
administrative decision may be questioned in a court8. However, the court may deny the power
to cancel, withdraw or modify the order on legal or equitable principles, when the interests of
third parties may have come into existence on the basis of the earlier order9. Furthermore, in
some cases, there may arise equitable considerations of promissory estoppel10.
(3) An administrative order cannot be invalidated on account of absence of reasons. Although in
the case of an adjudicatory order the administrative authority exercising judicial or quasi judicial
powers must record reasons for its decision11, there exists no such obligation on the authority
taking an administrative action12. Since the government has to work through innumerable
agencies covering a wide functional area and if reasons were to be given for each and every
administrative order issued by each and every agency, then the administrative machinery may
come to a stand-still, an administrative order need not record the reasons unless the relevant
statute under which it is being made specifically enjoins that reasons be given13. Furthermore,
a provision of a statute requiring reasons to be recorded, for taking an administrative action, is
regarded as mandatory rather than as directory14. For instance, under the Indian Forests
Service (Initial Recruitment) Regulations 1966, the selection board is required to provide
reasons for non selection of an eligible candidate15. (4) The grounds, depth, form and content
of judicial review vary from administrative to adjudicatory functions16.
1 Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena AIR 1975 SC 2057 [LNIND 1975 SC 239] [LNIND 1975 SC 239]
[LNIND 1975 SC 239], Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena (1975) 2 SCC 818 [LNIND 1975 SC 239]
[LNIND 1975 SC 239] [LNIND 1975 SC 239], Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena [1976] 1 SCR 168
[LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]: see [005.001]. As to discretionary powers see [005.182].
[LNIND 1989 SC 680] [LNIND 1989 SC 680]; Purtabpur Co Ltd v Cane Commissioner of Bihar AIR 1970 SC 1896 [LNIND
1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350], Purtabpur Co Ltd v Cane Commissioner of Bihar [1969] 2 SCR 807
[LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350], Purtabpur Co Ltd v Cane Commissioner of Bihar (1970) 2
SCJ 44 [LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350]. As to 'principles of natural justice' see [005.054].
[LNIND 1989 SC 680] [LNIND 1989 SC 680].
4 See also Neelima Misra v Harinder Kaur Paintal AIR 1990 SC 1402 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND
1990 SC 173], Neelima Misra v Harinder Kaur Paintal (1990) 2 SCC 746 [LNIND 1990 SC 173] [LNIND 1990 SC 173] [LNIND
1990 SC 173], Neelima Misra v Harinder Kaur Paintal [1990] 2 SCR 84.As to the principle of res judicata see [005.154].
5 Western India Watch Co Ltd v Western India Watch Co Workers Union AIR 1970 SC 1205 [LNIND 1970 SC 4] [LNIND 1970
SC 4] [LNIND 1970 SC 4], Western India Watch Co Ltd v Western India Watch Co Workers Union (1970) 2 SCJ 430 [LNIND
1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4], Western India Watch Co Ltd v Western India Watch Co Workers Union
229
Page 38
(1970) Lab IC 1033 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4] (the function of the government being
administrative, the principle of res judicata applicable to judicial acts cannot be applied).
Avon Services Production Agencies Pvt Ltd v Industrial Tribunal AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284]
[LNIND 1978 SC 284], Avon Services Production Agencies Pvt Ltd v Industrial Tribunal (1979) 1 SCC 1 [LNIND 1978 SC 284]
[LNIND 1978 SC 284] [LNIND 1978 SC 284], Avon Services Production Agencies Pvt Ltd v Industrial Tribunal [1979] 2 SCR 45
[LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284] (it is not absolutely necessary that there ought to be some
fresh material before the government for reconsideration of its earlier decision); RR Verma v Union of India AIR 1980 SC 1461
[LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177], RR Verma v Union of India (1980) 3 SCC 402 [LNIND 1980
SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177], RR Verma v Union of India (1980) Lab IC 749 (when the government
exercises quasi-judicial powers vested in it by a statute, the principle is that, the power to review must be conferred by a statute
either specifically or by necessary implication. However, this principle is not applied to a purely administrative order and no
statutory authority is needed to enable it to do so. The government should remain free to alter its policies or decisions in
administrative matters from time to time so that it can carry on its day to day administrative functions effectively);
Ramakanyadevi v State of Karnataka AIR 1980 Kant 182, Ramakanyadevi v State of Karnataka (1980) 1 Kant LJ 407. See M
Satyanandam v Deputy Secretary to Government of Andhra Pradesh AIR 1987 SC 1968 [LNIND 1987 SC 495] [LNIND 1987
SC 495] [LNIND 1987 SC 495], M Satyanandam v Deputy Secretary to Government of Andhra Pradesh (1987) 3 SCC 574
[LNIND 1987 SC 495] [LNIND 1987 SC 495] [LNIND 1987 SC 495], M Satyanandam v Deputy Secretary to Government of
Andhra Pradesh [1987] 3 SCR 566 [LNIND 1987 SC 495] [LNIND 1987 SC 495] [LNIND 1987 SC 495](under the General
Clauses Act s 21, a statutory power to make an order includes power, exercisable in the like manner and subject to the like
sanction and conditions (if any) to add to, amend, vary or rescind any orders so issued. The abovementioned provision clarifies
that an administrative power to make an order includes power to modify the same); Amir Shad Khan v L Hmingliana AIR 1991
SC 1983 [LNIND 1991 SC 362] [LNIND 1991 SC 362] [LNIND 1991 SC 362], Amir Shad Khan v L Hmingliana (1991) 4 SCC 39
[LNIND 1991 SC 362] [LNIND 1991 SC 362] [LNIND 1991 SC 362], Amir Shad Khan v L Hmingliana [1991] 3 SCR 443 [LNIND
1991 SC 362] [LNIND 1991 SC 362] [LNIND 1991 SC 362]; State of Uttar Pradesh v Dharmander Prasad Singh AIR 1989 SC
997 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680], State of Uttar Pradesh v Dharmander Prasad Singh
(1989) 2 SCC 505 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680], State of Uttar Pradesh v Dharmander
Prasad Singh [1989] 1 SCR 176 [LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680]; Kamala Prasad Khetan v
Union of India AIR 1957 SC 676 [LNIND 1957 SC 49] [LNIND 1957 SC 49] [LNIND 1957 SC 49], Kamala Prasad Khetan v
Union of India (1957) SCA 998, Kamala Prasad Khetan v Union of India (1957) SCJ 811; Strawboard Manufacturing Co Ltd v
Gutta Mill Workers' Union AIR 1953 SC 95 [LNIND 1952 SC 95] [LNIND 1952 SC 95] [LNIND 1952 SC 95]; See Bool Chand v
Chancellor, Kurukshetra University AIR 1968 SC 292 [LNIND 1967 SC 254] [LNIND 1967 SC 254] [LNIND 1967 SC 254],
Chand v Chancellor, Kurukshetra University [1968] 1 SCR 434 [LNIND 1967 SC 254] [LNIND 1967 SC 254] [LNIND 1967 SC
254], Chand v Chancellor, Kurukshetra University (1968) Lab IC 232 [LNIND 1967 SC 254] [LNIND 1967 SC 254] [LNIND 1967
SC 254].
See also Michael Akehurst, Revocation of Administrative Decisions, (1982)Pub Law, 613.
7 RR Verma v Union of India AIR 1980 SC 1461 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177], RR
Verma v Union of India (1980) 3 SCC 402 [LNIND 1980 SC 177] [LNIND 1980 SC 177] [LNIND 1980 SC 177], RR Verma v
Union of India (1980) Lab IC 749; Avon Services Production Agencies Pvt Ltd v Industrial Tribunal AIR 1979 SC 170 [LNIND
1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284], Avon Services Production Agencies Pvt Ltd v Industrial Tribunal
(1979) 1 SCC 1 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284], Avon Services Production Agencies Pvt
Ltd v Industrial Tribunal [1979] 2 SCR 45 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284].
Union of India (1980) Lab IC 749.
9 State of Kerala v K G Madhavan Pillai AIR 1989 SC 49 [LNIND 1988 SC 466] [LNIND 1988 SC 466] [LNIND 1988 SC
466](the general power of rescindment under the General Clauses Act has to be determined in the light of the subject-matter,
context and the effect of the relevant provisions of the statute. In the instant case, the Court ruled that permission could not be
cancelled without observing principles of natural justice). See Scheduled Caste & Weaker Section Welfare Association v State
of Karnataka AIR 1991 SC 1117 [LNIND 1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180], Scheduled Caste &
Weaker Section Welfare Association v State of Karnataka (1991) 2 SCC 604 [LNIND 1991 SC 180] [LNIND 1991 SC 180]
[LNIND 1991 SC 180], Scheduled Caste & Weaker Section Welfare Association v State of Karnataka (1991) 2 JT 184 [LNIND
1991 SC 180] [LNIND 1991 SC 180] [LNIND 1991 SC 180]; Lt Governor of Himachal Pradesh v Avinash Sharma AIR 1970 SC
1576, Lt Governor of Himachal Pradesh v Avinash Sharma (1970) 2 SCJ 735, Lt Governor of Himachal Pradesh v Avinash
Sharma (1970) Ker LJ 656; State of Bihar v D N Ganguly AIR 1958 SC 1018 [LNIND 1958 SC 92] [LNIND 1958 SC 92]
[LNIND 1958 SC 92](after possession has been taken pursuant to a notification under Land Aacquisition Act 1894 s 17(1), the
notification cannot be cancelled or withdrawn under of the Act ss 21 or ss 48 and there is no provision by which land statutorily
vested in the government reverts to the original owner by mere cancellation of the notification).
10 Sanjaya Sales Corpn v National Mineral Development Corpn Ltd AIR 1993 AP 62 [LNIND 1991 AP 142] [LNIND 1991 AP
142] [LNIND 1991 AP 142], Sanjaya Sales Corpn v National Mineral Development Corpn Ltd (1991) 2 Andh LT 255. As to
promissory estoppel see [005.297].
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Page 39
11 SN Mukherjee v Union of India AIR 1990 SC 1984 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986], SN
Mukherjee v Union of India (1990) 4 SCC 594 [LNIND 1990 SC 986] [LNIND 1990 SC 986] [LNIND 1990 SC 986], SN
Mukherjee v Union of India [1990] Supp 3 SCR 44.
12 Hukam Singh v State of Punjab AIR 1975 P & H 148, Hukam Singh v State of Punjab (1975) ILR 1 Punj 619, Hukam Singh
v State of Punjab (1975) Cr LJ 902. See Special Land Acquisition Officer, Bombay v Godrej and Boyce AIR 1987 SC 2421
[LNIND 1987 SC 712] [LNIND 1987 SC 712] [LNIND 1987 SC 712], Special Land Acquisition Officer, Bombay v Godrej and
Boyce (1988) 1 SCC 50 [LNIND 1987 SC 712] [LNIND 1987 SC 712] [LNIND 1987 SC 712], Special Land Acquisition Officer,
Bombay v Godrej and Boyce [1980] 1 SCR 590 (state government can withdraw proceedings such as acquisition at any stage
without providing reasons or an opportunity to be heard to the land owner).
[LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]; Vijay Kumar v Union of India AIR 1988 SC 934 [LNIND
1988 SC 141] [LNIND 1988 SC 141] [LNIND 1988 SC 141], Vijay Kumar v Union of India (1988) 2 SCC 57 [LNIND 1988 SC
141] [LNIND 1988 SC 141] [LNIND 1988 SC 141], Vijay Kumar v Union of India [1988] 3 SCR 42; National Institute of Mental
Health and Neuro Sciences v K Kalyana Raman AIR 1992 SC 1806 [LNIND 1991 SC 636] [LNIND 1991 SC 636] [LNIND 1991
SC 636], Union Public Service Commission v Hiranyalal Dev AIR 1988 SC 1069 [LNIND 1988 SC 653] [LNIND 1988 SC 653]
[LNIND 1988 SC 653], Union Public Service Commission v Hiranyalal Dev (1988) 1 JT 609; RS Dass v Union of India AIR
1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694], RS Dass v Union of India (1986) Supp SCC
617, RS Dass v Union of India (1987) Lab IC 476.
14 Union of India v HP Chothia AIR 1978 SC 1214 [LNIND 1978 SC 124] [LNIND 1978 SC 124] [LNIND 1978 SC 124], Union
of India v HP Chothia (1978) 2 SCC 586 [LNIND 1978 SC 124] [LNIND 1978 SC 124] [LNIND 1978 SC 124], Union of India v
HP Chothia (1978) Lab IC 1093; Ajantha Industries v Central Board of Direct Taxes AIR 1976 SC 437 [LNIND 1975 SC 831]
[LNIND 1975 SC 831] [LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes 1976 1 SCC 1001 [LNIND
1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes [1976] 2 SCR
884 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND 1975 SC 831]; Collector of Monghyr v Keshav Prasad Goenka AIR
1962 SC 1694 [LNIND 1962 SC 136] [LNIND 1962 SC 136] [LNIND 1962 SC 136], Collector of Monghyr v Keshav Prasad
Goenka (1962) 2 SCA 708, Collector of Monghyr v Keshav Prasad Goenka (1962) BLJR 863; see State of Uttar Pradesh v
Lalai Singh Yadav AIR 1977 SC 202 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC 333], State of Uttar Pradesh
v Lalai Singh Yadav (1976) 4 SCC 213 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC 333], State of Uttar
Pradesh v Lalai Singh Yadav [1977] 1 SCR 616 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC 333]; Narayan
Das Indurkhya v State of Madhya Pradesh 1972 SC 2086, Narayan Das Indurkhya v State of Madhya Pradesh (1972) SCD 619
[LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261], Narayan Das Indurkhya v State of Madhya Pradesh (1972)
Cri LJ 1323 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261] (the grounds must be distinguished from the
opinion, the order of the state government can be quashed on the grounds that the order did not disclose the grounds of the
opinion formed by the state government). See discretionary powers [005.182] and following.
HP Chothia (1978) Lab IC 1093: The Supreme Court ruled that the requirement of giving reasons was mandatory as the
provision was made in public interest with a view to avoid arbitrary or capricious exercise of power by the selection board.
Furthermore, it would help the Union Public Service Commission in giving its advice as it would know the views of the selection
board as to why a particular candidate has been excluded by it.
16 As to Judicial review see [005.210].

ADMINISTRATIVE LAW/12. ADMINISTRATIVE POWERS/(1) INTRODUCTION/[005.174] Communication of
an administrative order
[005.174] Communication of an administrative order An administrative order affecting specified person or

persons needs to be communicated to the specific person or persons affected, although publication of the
order in the gazette is not prescribed. The order is rendered effective upon being communicated to the
concerned person and where it has not been communicated the government is not bound by it and can
change the order1.
The government becomes bound by its own order as soon as it is communicated which means as soon as
the order is promulgated or despatched because the order is then out of the reach of the government. Where
the affected person is informed of the gist of the order, the order may be regarded as having been
231
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communicated2. Where the cancellation of the mining lease by the state government was informed by the
collector to the lessee, the court ruled that, the government order could not be regarded as invalid or
inoperative for want of communication. The reason for the above conclusion is that the communication of the
revocation order by the collector is official and sufficient, and hence capable of affecting the lessee's rights3.
When the administrative order is notified in the official gazette, the knowledge of the order may be imputable
to the affected person4. However, the issue whether in addition to the communication, receipt of the order by
the affected party is necessary, is not decided by an uniform rule. Receipt of the order by the affected person
may be regarded as necessary, when non-compliance of the order leads to any punishment5. Where the
order is of 'dismissal', rather than of 'suspension', then the knowledge of the order on the part of the
employee is necessary as the consequences of dismissal are serious6. Furthermore, the Supreme Court has
laid down that for certain purposes the order may be treated to have come into effect as soon as it is
despatched and is out of control of the authority passing that order7.
1 Bachittar Singh v State of Punjah AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND 1962 SC 108] [LNIND 1962 SC 108],
Bachittar Singh v State of Punjah [1962] Supp 3 SCR 713 (the Supreme Court observed in this case: 'It is of the essence that
the order has to be communicated to the person who would be affected by that order before the state and that person can be
bound by that order'. The order of the Revenue Minister setting aside the earlier order of 'dismissal' on the employee
concerned, and reducing it to an order of 'reversal' instead, was not communicated to the employee. Later, the order was
changed to 'dismissal'. The Supreme Court found nothing wrong with the order as the earlier 'reversal' order was never
communicated to the concerned person, and, thus, it never became effective).
2 State of Punjab v Sodhi Sukhdev Singh AIR 1961 SC 493 [LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC
270], State of Punjab v Sodhi Sukhdev Singh [1961] 2 SCR 371 [LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC
270]; See State of Kerala v A Lakshmikutty AIR 1987 SC 331 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC
428], State of Kerala v A Lakshmikutty (1986) 4 SCC 632 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428],
State of Kerala v A Lakshmikutty [1987] 1 SCR 136 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428].
3 Serajuddin and Co v State of Orissa AIR 1974 Cal 296 [LNIND 1973 CAL 227] [LNIND 1973 CAL 227] [LNIND 1973 CAL
227], Serajuddin and Co v State of Orissa 76 Cal WN 61.
4 State of Gujarat v Panch of Nani Hamam's Pole AIR 1986 SC 803 [LNIND 1985 SC 363] [LNIND 1985 SC 363] [LNIND 1985
SC 363], State of Gujarat v Panch of Nani Hamam's Pole (1986) 1 SCC 566 [LNIND 1985 SC 363] [LNIND 1985 SC 363]
[LNIND 1985 SC 363], State of Gujarat v Panch of Nani Hamam's Pole (1986) 1 SCJ 34 [LNIND 1985 SC 363] [LNIND 1985 SC
363] [LNIND 1985 SC 363].
5 Lim Chin Aik v R (1968) 1 All ER 223 (PC) (it is unfair to subject a person to any punishment for infringing an order of which
he knows nothing; hence, mere despatch of the communication of the order in such a case may not be regarded as enough. In
order to have contravened the order, it is important that he knows about the order).
6 See State of Punjab v Balbir Singh AIR 1977 SC 629 [LNIND 2012 SC 93] [LNIND 2012 SC 93] [LNIND 2012 SC 93], State
of Punjab v Balbir Singh (1976) 3 SCC 242 [LNIND 1975 SC 383] [LNIND 1975 SC 383] [LNIND 1975 SC 383], State of Punjab
v Balbir Singh [1976] 2 SCR 115 [LNIND 1975 SC 383] [LNIND 1975 SC 383] [LNIND 1975 SC 383]; State of Punjab v Amar
Singh Harika AIR 1966 SC 1313 [LNIND 1966 SC 3] [LNIND 1966 SC 3] [LNIND 1966 SC 3], State of Punjab v Amar Singh
Harika (1966) 2 SCJ 777 [LNIND 1966 SC 3] [LNIND 1966 SC 3] [LNIND 1966 SC 3].
State of Punjab v Khemi Ram AIR 1970 SC 214 [LNIND 1969 SC 371] [LNIND 1969 SC 371] [LNIND 1969 SC 371], State of
Punjab v Khemi Ram [1970] 2 SCR 657 [LNIND 1969 SC 371] [LNIND 1969 SC 371] [LNIND 1969 SC 371], State of Punjab v
Khemi Ram (1970) 2 SCA 392 [LNIND 1969 SC 371] [LNIND 1969 SC 371] [LNIND 1969 SC 371] (an order of suspension of a
government servant takes effect from the date of its despatch irrespective of the date on which he receives the same.
In the instant case, the employee was due to retire from service on August 4, 1958. As there were certain charges against him
which needed to be inquired into, the State Government passed an order of his suspension on July 31, 1958, and
telegraphically informed him that he was suspended from service with effect from August 2, 1958. A charge sheet was
despatched to him on July 31. The suspension order and the charge sheet reached him after August 4, and the employee
claimed that he could not be suspended after he had retired. The question was: when did the order of suspension come into
force? The Court ruled that the order came into force on the day it was despatched to the employee concerned, ie, July 31,
1958. On that date, the order passed from the hands of the Government. The position, therefore, was not as if the order
remained with the Government, or that it could have changed its mind about it or modified it. This ruling has been reiterated in
several other cases).
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ADMINISTRATIVE LAW/12. ADMINISTRATIVE POWERS/(2) CLASSIFICATION OF ADMINISTRATIVE
POWERS/[005.175] In general
[005.175] In general Administrative powers1 are broadly classified as:
(1) Statutory powers, ie. execution of laws, applying vague standards laid down in statutes or
delegated legislation on the basis of each case2; and
(2) Non-statutory powers, ie. formation and implementation of policies3.
1 As to administrative powers see [005.172] and following.
2 As to statutory powers see [005.176].
3 As to non-statutory powers see [005.177].

POWERS/[005.176] Statutory powers
[005.176] Statutory powers An important principle of administrative law is that an administrative action
which prejudicially affects a legal right or a fundamental right of a person, must be supported by the authority
of law1. Hence, a restriction requiring a person to reside in a specified place cannot be imposed by an
executive order without the backing of law2. Similarly, right to property of a person cannot be affected
adversely by administrative action without the support of a statutory power3.
An authority cannot discharge a legislative or an adjudicatory function without the sanction of law, although it
can do so in an administrative manner4. It cannot impose a tax or spend money from the Consolidated Fund
without the authority of law5.
Formerly, passports were issued and refused by the government of India in exercise of its administrative
power. However, the court has ruled that no person can be deprived of his right to travel except according to
procedure established by law6. Furthermore, an unfettered discretionary power7 to issue or not issue a
passport is regarded as discriminatory8. Hence, the Parliament enacted the Passport Act 1967 to regulate
the issue, withdrawal and cancellation of passports9.In the case of unchannelled arbitrary discretion,
discrimination is writ large on the face of it10.
Statutes can empower the administration to take action in the interest of public health, safety and morality,
and authorise seizure and even destruction of property of an individual without providing any safeguards11.
Power of the government to forfeit a book questioning the territorial integrity or frontiers of India in a manner
prejudicial to the interests or safety or security of the State or to forfeit a publication promoting feelings of
enmity or hatred between different classes of citizens of India has been characterised as an administrative
power12.
Under the All India Services (Death-cum-Retirement) Rules 1958, the Central Government can compulsorily
retire a government servant in public interest who has put in certain years of service after giving him three
months' notice13. The government's power to retire an employee without providing him the opportunity to be
heard, subject to the condition that the retirement order is passed in public interest and not as a punishment
is regarded as an administrative power14. However, an order of compulsory retirement which is not in public
interest amounts to abuse of the power vested in the authority and will be set aside15. Hence, an order of
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compulsory retirement passed against a civil servant on the ground of causing financial loss to the
government was quashed by the Supreme Court as the order was issued due to misconduct by the
employee and the power to retire compulsorily was being used to avoid giving the opportunity of hearing to
the concerned employee16.
Under the Indian Administrative Service (Appointment by Promotion) Regulations 1955, state service
personnel may be promoted to the Indian Administrative Service. However, non-inclusion in selection list
does not take away any right of a member of the state civil service that may have accrued to him as a
government servant, and hence he need not be provided an opportunity to be represented against the
proposed suppression17.
The power of the government to refer an industrial dispute to a labour tribunal for adjudication conferred by
the Industrial Disputes Act 1974 is characterised as an administrative power18.
Many statutes confer on the administration the power to conduct investigation or inquiry19 The power to
appoint an investigator or an inquiry commission to inquire into a matter of public importance is regarded as
an administrative power20.
The central government is empowered by the Essential Commodities Act 1955 to appoint an authorised
controller with respect to an undertaking and the controller can exercise such functions of control as may be
specified21.
Issuance of orders of preventive detention under relevant laws22 is regarded as an administrative matter.
Under the National Security Act 1980, the government can issue orders to detain a person with a view to
prevent him from acting in a manner prejudicial to:
(i) the defence of India, the relations of India with foreign powers, or the security of India, or
(ii) the security of the state or maintenance of public order; or
(iii) the maintenance of the supplies and services essential to the community23.
Grant of a licence is regarded as an administrative function, although in certain circumstances where the
application for licence is rejected, the licensing authority must provide an opportunity to the applicant to be
heard. Hence the abovementioned power may be regarded as administrative in some cases, but
quasi-judicial in other cases24. For instance, the Industries (Development and Regulation) Act 1951
introduces licensing for new industrial undertakings25. Suspension of a licence is regarded as an
administrative function, although cancellation of a licence is deemed to be a quasi-judicial function, and the
concerned licensee must be given an opportunity of being heard before his licence is cancelled26.
Under the Code of Criminal Procedure 1973, prior permission of the Lt Governor is required to initiate
criminal proceedings against a member of the Delhi Police Force for any offence alleged to have been
committed by him while acting or purporting to act in discharge of his official duty. The power to grant
permission to initiate criminal proceedings is administrative in nature27. However, the test is that the offence
must be committed by a public servant directly in pursuance of his public office28. The Executive is
empowered under the Code of Criminal Procedure 197329 and as well as the Constitution30 to pardon a
convict or remit his sentence31.
The Supreme Court has characterised the power to pardon vested in the President by the Constitution of
India32 as being administrative in nature since the condemned person does not enjoy the right to insist on an
oral hearing33.
In urgent cases of nuisance34 or apprehended danger35, where in the opinion of an executive magistrate36,
there is sufficient ground and immediate prevention or speedy remedy is desirable, the Code of Criminal
Procedure 1973 provides a machinery for issue of orders directing a person to abstain from a certain act or
to make certain order with respect to property in his possession or under his management37. Normally, an
order under the abovementioned provision is not passed without giving an opportunity to the person
concerned to show cause, but it may be passed ex parte under special circumstances. However, the order
may be rescinded at any time and where a person requests for the rescission of the order, he must be heard
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by the magistrate and reasons are to be recorded by him for rejecting the application for rescission38.
However, power used in a judicial manner is subject to further judicial scrutiny and the above mentioned
order is open to revision by the high court39.
Suspension of an elected chairman of a municipal board by the state government under the relevant
statutory provision40 is regarded as an administrative power41. The Court has emphasized that suspension is
an interim measure and is not penal in character and the concerned party will be heard when a formal inquiry
is instituted into the charges against him42.
Where there is delay of prompt action, public security and safety may be endangered and thus defeat the
basic purpose underlying the law. Illustrations of safeguards provided in the form of a provision ensuring that
hearing is to precede administrative action are:
Under the Post Office Act 1898, any postal article which is of explosive or dangerous nature or contains
lottery material may be opened and destroyed by the postal authorities, and any indecent, obscene, or
grossly offensive material may be disposed of in such manner as the central government may by rule direct
43. The safeguard against the abuse of power is that a penalty may be imposed for misappropriating or
dishonestly destroying postal articles44.
Public safety and morals is safeguarded by the Young Persons (Harmful Publications) Act 1956 under which
a state government may, after consultation with the principal law officer of the state, declare harmful
publications forfeited to the government by an order notified in the official gazette45. A police officer may
seize the harmful publications in any territory to which the Act applies. The safeguard provided against the
misuse of power is that a person aggrieved by the government's order may within 60 days of the order
approach the high court for setting it aside46.
To prevent objectionable advertisements relating to drugs and magic remedies, the Drugs and Magic
Remedies (Objectionable Advertisements) Act 1954, provides for the seizure by an authorised gazetted
officer of the state government of any document, article or thing which he had reason to believe contravenes
any of the provisions of the Act47. This is subject to the safeguard that the officer seizing anything is to inform
the magistrate and to take his orders as to its custody from him. The material seized may be forfeited only on
the order of the court after the person concerned has been convicted48.
To check adulteration of food, the Prevention of Food Adulteration Act 1954 provides that if any food article
appears to a food inspector to be adulterated or misbranded, he may seize and carry away the same, or
keep it in the safe custody of a vendor of that article to be dealt with in accordance with the statute. Similarly,
any material of a kind which may be employed for purposes of adulteration found in the possession of
manufacturer of food may be seized49. The safeguards provided are that the food inspector will call one or
more persons to be present at the time when the action is being taken and obtain his or their signatures50.
Any inspector seizing any article of food, without any reasonable grounds of suspicion, may be punished with
fine of Rs 100051. Furthermore, any food article seized by the inspector must be produced before a
magistrate at the earliest possible opportunity and where the food is found to be unadulterated, the
magistrate may order an award of compensation51. The statute also makes provision for testing the quality of
food by a public analyst and the Central Food Laboratory52.
Similarly, in the interest of public health, the Drugs and Cosmetics Act 1940, prevents the manufacture or
sale of sub-standard or misbranded drugs by providing for the seizure of drugs by an inspector appointed
under the Act53. The safeguard provided in the statute is that the inspector seizing the drug will, at the
earliest opportunity, inform a magistrate of the seizure and act upon his orders. Furthermore, the quality of
the seized drug may be tested by the government analyst and the Central Drugs Laboratory54.
1 Bennett Coleman & Co v Union of India AIR 1973 SC 106 [LNIND 1972 SC 514] [LNIND 1972 SC 514] [LNIND 1972 SC
514], Bennett Coleman & Co v Union of India (1972) 2 SCC 788 [LNIND 1972 SC 514] [LNIND 1972 SC 514] [LNIND 1972 SC
514], Bennett Coleman & Co v Union of India (1973) 1 SCJ 177; Naraindas Indurkhya v State of Madhya Pradesh AIR 1974
SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106], Naraindas Indurkhya v State of Madhya Pradesh
(1974) 4 SCC 788 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106], Naraindas Indurkhya v State of Madhya
235
Page 44
Pradesh [1974] 3 SCR 624 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]; Chamkaur Singh v State of
Punjab AIR 1991 P & H 26; Ram Jawaya v State of Punjab AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123]
[LNIND 1955 SC 123](if the executive action taken by the state government encroaches on any private rights, it would have to
be supported by legislative authority, for under the rule of law which prevails in our country every executive action which
operates to the prejudice of any person must have the authority of law to support it).
2 State of Madhya Pradesh v Bharat Singh AIR 1967 SC 1170 [LNIND 1967 SC 16] [LNIND 1967 SC 16] [LNIND 1967 SC 16],
State of Madhya Pradesh v Bharat Singh [1967] 2 SCR 454 [LNIND 1967 SC 16] [LNIND 1967 SC 16] [LNIND 1967 SC 16],
State of Madhya Pradesh v Bharat Singh (1967) 2 SCA 246 [LNIND 1967 SC 16] [LNIND 1967 SC 16] [LNIND 1967 SC 16];
Kartar Singh v Chief Engineer, Irrigation, Punjab AIR 1966 Punj 362, Kartar Singh v Chief Engineer, Irrigation, Punjab (1966)
Cur LJ 84.
3 See State of Mysore v K Chandrasekhara Adiga AIR 1976 SC 853, State of Mysore v K Chandrasekhara Adiga (1976) 2
SCC 495, State of Mysore v K Chandrasekhara Adiga (1976) UJ 231 (SC).
4 See State of Mysore v K Chandrasekhara Adiga AIR 1976 SC 853, State of Mysore v K Chandrasekhara Adiga (1976) 2
SCC 495, State of Mysore v K Chandrasekhara Adiga (1976) UJ 231 (SC). As to non-statutory powers see [005.177].
5 Constitution of India art 265: see generally[80]CONSTITUTIONAL LAW.
6 Satwant Singh Sawhney v D Ramarathnam, Asst Passport Officer AIR 1967 SC 1836 [LNIND 1967 SC 427] [LNIND 1967
SC 427] [LNIND 1967 SC 427], Satwant Singh Sawhney v D Ramarathnam, Asst Passport Officer (1967) 2 SCA 523.
7 As to discretionary powers see [005.182].
8 See [005.178].
SC 427] [LNIND 1967 SC 427], Satwant Singh Sawhney v D Ramarathnam, Asst Passport Officer (1967) 2 SCA 523; see
Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Maneka
Gandhi v Union of India (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Maneka Gandhi v
11 Ie under the Customs Act 1962 s 110(1) and Gold (Control) Act 1968 s 66. Collector, Central Excise, Allahabad v L Kashi
Nath Jewellers AIR 1972 All 231, Collector, Central Excise, Allahabad v L Kashi Nath Jewellers (1972) All LJ 204; see S
Narayanappa v Comr of Income Tax AIR 1967 SC 523 [LNIND 1966 SC 427] [LNIND 1966 SC 427] [LNIND 1966 SC 427], S
Narayanappa v Comr of Income Tax [1967] 1 SCR 590 [LNIND 1966 SC 427] [LNIND 1966 SC 427] [LNIND 1966 SC 427], S
Narayanappa v Comr of Income Tax (1967) 2 SCWR 102.
12 Ie under the Criminal Law (Amendment) Act 1961 s 4(1) and Criminal Procedure Code 1973 s 99A; Narayan Das Indurkhya
v State of Madhya Pradesh 1972 SC 2086, Narayan Das Indurkhya v State of Madhya Pradesh (1972) SCD 619 [LNIND 1972
SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261], Narayan Das Indurkhya v State of Madhya Pradesh (1972) Cr LJ 1323;
State of Uttar Pradesh v Lali Singh Yadav AIR 1977 SC 202 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC
333], State of Uttar Pradesh v Lali Singh Yadav (1976) 4 SCC 213 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976
SC 333], State of Uttar Pradesh v Lali Singh Yadav [1977] 1 SCR 616 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND
1976 SC 333].
13 Ie the All India Services (Death-cum-Retirement) Rules 1958 r 16(3).
14 Baldev Raj Chadha v Union of India AIR 1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333],
Baldev Raj Chadha v Union of India [1981] 1 SCR 430 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333],
Baldev Raj Chadha v Union of India (1981) 1 SCJ 293; Kailash Chandra Agarwal v State of Madhya Pradesh AIR 1987 SC
1871, Kailash Chandra Agarwal v State of Madhya Pradesh (1987) 3 SCC 513, Kailash Chandra Agarwal v State of Madhya
Pradesh (1987) 3 JT 24; Union of India v ME Reddy AIR 1980 SC 563 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND
1979 SC 379], Union of India v ME Reddy (1980) 2 SCC 15 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379],
Union of India v ME Reddy [1980] 1 SCR 736 [LNIND 1979 SC 379] [LNIND 1979 SC 379] [LNIND 1979 SC 379].
15 S R Venkataraman v Union of India AIR 1979 SC 49.
16 Ram Ekbal Sharma v State of Bihar AIR 1990 SC 1368 [LNIND 1990 SC 831] [LNIND 1990 SC 831] [LNIND 1990 SC 831],
Ram Ekbal Sharma v State of Bihar (1990) 3 SCC 504 [LNIND 1990 SC 831] [LNIND 1990 SC 831] [LNIND 1990 SC 831],
Ram Ekbal Sharma v State of Bihar [1990] 2 SCR 679 [LNIND 1990 SC 831] [LNIND 1990 SC 831] [LNIND 1990 SC 831]; the
order was considered to be in contravention of art 311)See Baikuntha Nath Das v Chief District Medical Officer, Baripada AIR
1992 SC 1020 [LNIND 1992 SC 176] [LNIND 1992 SC 176] [LNIND 1992 SC 176], Baikuntha Nath Das v Chief District Medical
Officer, Baripada AIR 1992 SCW 845, Baikuntha Nath Das v Chief District Medical Officer, Baripada (1992) 2 SCC 299 [LNIND
1992 SC 176] [LNIND 1992 SC 176] [LNIND 1992 SC 176]; Union of India India v Shaik Ali AIR 1990 SC 450 [LNIND 1989 SC
500] [LNIND 1989 SC 500] [LNIND 1989 SC 500], Union of India India v Shaik Ali (1989) Supp 2 SCC 717, Union of India India
v Shaik Ali [1989] Supp 1 SCR 456; Anoop Jaiswal v Government of India AIR 1984 SC 636 [LNIND 1984 SC 21] [LNIND 1984
SC 21] [LNIND 1984 SC 21], Anoop Jaiswal v Government of India (1984) 2 SCC 369 [LNIND 1984 SC 21] [LNIND 1984 SC
236
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21] [LNIND 1984 SC 21], Anoop Jaiswal v Government of India (1984) 1 SCWR 231 [LNIND 1984 SC 21] [LNIND 1984 SC 21]
[LNIND 1984 SC 21].
17 RS Dass v Union of India AIR 1987 SC 593 [LNIND 1986 SC 694] [LNIND 1986 SC 694] [LNIND 1986 SC 694], RS Dass v
Union of India (1986) Supp SCC 617, RS Dass v Union of India (1987) Lab IC 476; Union Public Service Commission v
Hiranyalal Dev AIR 1988 SC 1069 [LNIND 1988 SC 653] [LNIND 1988 SC 653] [LNIND 1988 SC 653], Union Public Service
Commission v Hiranyalal Dev (1988) 1 JT 609; see State of Sikkim v Dorjee Tshering Bhutia AIR 1991 SC 1933 [LNIND 1991
SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC 392], State of Sikkim v Dorjee Tshering Bhutia (1991) 4 SCC 243 [LNIND 1991
SC 392] [LNIND 1991 SC 392] [LNIND 1991 SC 392], State of Sikkim v Dorjee Tshering Bhutia [1991] 3 SCR 633 [LNIND 1991
18 Industrial Disputes Act 1974 s 10(1); Western India Watch Co Ltd v Western India Watch Co Workers Union AIR 1970 SC
1205 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4], Western India Watch Co Ltd v Western India Watch Co
Workers Union (1970) 2 SCJ 430 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4], Western India Watch Co Ltd v
Western India Watch Co Workers Union (1970) Lab IC 1033 [LNIND 1970 SC 4] [LNIND 1970 SC 4] [LNIND 1970 SC 4]; Ram
Avtar Sharma v State of Haryana AIR 1985 SC 915 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122], Ram
Avtar Sharma v State of Haryana (1985) 3 SCC 189 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122], Ram
Avtar Sharma v State of Haryana [1985] 3 SCR 686 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122]; Avon
Services Production Agencies Pvt Ltd v Industrial Tribunal AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284]
[LNIND 1978 SC 284], Avon Services Production Agencies Pvt Ltd v Industrial Tribunal (1979) 1 SCC 1 [LNIND 1978 SC 284]
[LNIND 1978 SC 284] [LNIND 1978 SC 284], Avon Services Production Agencies Pvt Ltd v Industrial Tribunal [1979] 2 SCR 45
[LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284]; Shambu Nath Goyal v Bank of Baroda AIR 1978 SC 1088
[LNIND 1978 SC 35] [LNIND 1978 SC 35] [LNIND 1978 SC 35], Shambu Nath Goyal v Bank of Baroda (1978) 2 SCC 353
[LNIND 1978 SC 35] [LNIND 1978 SC 35] [LNIND 1978 SC 35], Shambu Nath Goyal v Bank of Baroda [1978] 2 SCR 793
[LNIND 1978 SC 35] [LNIND 1978 SC 35] [LNIND 1978 SC 35]; Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena AIR
1975 SC 2057 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239], Mahabir Jute Mills Ltd, Gorakhpur v Shibban
Lal Saxena (1975) 2 SCC 818 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239], Mahabir Jute Mills Ltd,
Gorakhpur v Shibban Lal Saxena [1976] 1 SCR 168 [LNIND 1975 SC 239] [LNIND 1975 SC 239] [LNIND 1975 SC 239]; State
of Madras v C P Sarathy AIR 1953 SC 53 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84], State of Madras v C
P Sarathy [1953] SCR 334 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84], State of Madras v C P Sarathy
19 Ie the Commission of Inquiry Act 1952 s 3(1) and the Industries (Development and Regulation) Act 1951.
20
Ram Krishna Dalmia v SR Tendolkar AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31], Ram
Krishna Dalmia v SR Tendolkar [1959] SCR 279 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31] (under the
Industries (Development and Regulation) Act 1951, in certain circumstances, the Central Government can order an
investigation to be made into the affairs of an industrial undertaking. Whether circumstances exist warranting initiation of an
investigation or not into the affairs of a company is an administrative matter which lies within the subjective satisfaction of the
Central Government. The investigation if ordered has to be carried out in accordance with the principles of natural justice.
After receiving the report of the investigation, if the Central Government is of the opinion that the industrial undertaking is being
managed in a way detrimental to the industry or the public interest, it can take over the industrial undertaking concerned; but,
before doing so, the government is bound to give a hearing to the concerned management, and, therefore, the power of
take-over cannot now be regarded as administrative according to our formulation of the definition of an administrative power).
21 Kamala Prasad Khetan v Union of India AIR 1957 SC 676 [LNIND 1957 SC 49] [LNIND 1957 SC 49] [LNIND 1957 SC 49],
Kamala Prasad Khetan v Union of India (1957) SCA 998, Kamala Prasad Khetan v Union of India (1957) SCJ 811.
22 The National Security Act 1980; the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act 1974; the
Prevention of Blackmarketing and Maintenance of Supplies of Essential Commodities Act 1980; and the Prevention of Illicit
Traffic in Narcotic Drugs and Psychotropic Substances Act 1988.
23 National Security Act 1980 s 3; see Vijay Kumar v Union of India AIR 1988 SC 934 [LNIND 1988 SC 141] [LNIND 1988 SC
141] [LNIND 1988 SC 141], Vijay Kumar v Union of India (1988) 2 SCC 57 [LNIND 1988 SC 141] [LNIND 1988 SC 141] [LNIND
1988 SC 141], Vijay Kumar v Union of India [1988] 3 SCR 42 (revocation, modification and extension of detention order need to
be supported with recording of reasons).
24 See Vellore Educational Trust v State of Andhra Pradesh AIR 1988 SC 130, Vellore Educational Trust v State of Andhra
Pradesh (1987) Supp SCC 543, Vellore Educational Trust v State of Andhra Pradesh (1987) 5 JT 396: grant of permission to
start University is an administrative power; Kishan Chand Arora v Commissioner of Police Calcutta AIR 1961 SC 705 [LNIND
1960 SC 330] [LNIND 1960 SC 330] [LNIND 1960 SC 330], Kishan Chand Arora v Commissioner of Police Calcutta [1961] 3
SCR 135 [LNIND 1960 SC 330] [LNIND 1960 SC 330] [LNIND 1960 SC 330]; Chingleput Bottlers v Majestic Bottling Co AIR
1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79], Chingleput Bottlers v Majestic Bottling Co
(1984) 3 SCC 258 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79], Chingleput Bottlers v Majestic Bottling Co
(1984) UJ 570 (SC). As to classification and nature of administrative powers see [005.001].
25 Industrial (Development and Regulation) Act 1951 s 11. As to licencing see [165]INDUSTRIAL LAW.
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Page 46
26 Sukhwinder Pal Bipan Kumar v State of Punjab AIR 1982 SC 65 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND 1981
SC 450], Sukhwinder Pal Bipan Kumar v State of Punjab (1982) 1 SCC 31 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND
1981 SC 450], Sukhwinder Pal Bipan Kumar v State of Punjab (1982) SC Cr R 119; City Corner v Personal Asst to Collector
and Addnl. Dist. Magistrate AIR 1976 SC 143 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC 369], City Corner v
Personal Asst to Collector and Addnl. Dist. Magistrate (1976) 1 SCC 124 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND
1975 SC 369], City Corner v Personal Asst to Collector and Addnl. Dist. Magistrate [1976] 2 SCR 38 [LNIND 1975 SC 369]
[LNIND 1975 SC 369] [LNIND 1975 SC 369].
27 Code of Criminal Procedure 1973 s 197(3). Balbir Singh v D N Kadian AIR 1986 SC 345 [LNIND 1985 SC 356] [LNIND 1985
SC 356] [LNIND 1985 SC 356], Balbir Singh v D N Kadian (1986) 1 SCWR 144, Balbir Singh v D N Kadian (1986) SC Cr R 54.
28 Pukhraj v State of Rajasthan AIR 1973 SC 2591 [LNIND 1973 SC 255] [LNIND 1973 SC 255] [LNIND 1973 SC 255];
Matajog Dubey v HC Bari AIR 1956 SC 44 [LNIND 1955 SC 89] [LNIND 1955 SC 89] [LNIND 1955 SC 89], Matajog Dubey v
HC Bari [1956] 2 SCR 925, Matajog Dubey v HC Bari (1956) SCJ 110.
29 Ie under the Code of Criminal Procedure s 401. See[105]CRIMINAL LAW AND PROCEDURE.
30 Ie under the Constitution arts 72 and 161: See [80]CONSTITUTIONAL LAW.
31 State of Uttar Pradesh v Lali Singh Yadav AIR 1977 SC 202 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976 SC
333], State of Uttar Pradesh v Lali Singh Yadav (1976) 4 SCC 213 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND 1976
SC 333], State of Uttar Pradesh v Lali Singh Yadav [1977] 1 SCR 616 [LNIND 1976 SC 333] [LNIND 1976 SC 333] [LNIND
1976 SC 333].
32 Ie under the Constitution ofl Indiaart 72.
33 Kehar Singh v Union of India AIR 1989 SC 653 [LNIND 1988 SC 586] [LNIND 1988 SC 586] [LNIND 1988 SC 586], Kehar
Singh v Union of India (1989) 1 SCC 204 [LNIND 1988 SC 586] [LNIND 1988 SC 586] [LNIND 1988 SC 586], Kehar Singh v
Union of India [1988] Supp 3 SCR 1102.
34 As to the meaning of nuisance see [105]CRIMINAL LAW AND PROCEDURE.
35 As to the meaning of apprehended danger see [105]CRIMINAL LAW AND PROCEDURE.
36 As to executive magistrate see generally COURTS[100.019].
37 Code of Criminal Procedure 1973 s 144.
38
Union of India v WN Chadha AIR 1993 SC 1082, Union of India v WN Chadha AIR 1993 SCW 423, Union of India v WN
Chadha (1993) Cr LJ 859; Gulam Abbas v State of Uttar Pradesh AIR 1981 SC 2198 [LNIND 1981 SC 425] [LNIND 1981 SC
425] [LNIND 1981 SC 425].
(it is an executive order passed in the performance of an executive function where 'no lis as to any rights between rival parties is
adjudicated but merely an order for preserving public peace is made'). As to judicial review see [005.210].
39 Babulal Parate v State of Maharashtra AIR 1961 SC 884 [LNIND 1961 SC 14] [LNIND 1961 SC 14] [LNIND 1961 SC 14],
Babulal Parate v State of Maharashtra (1961) 1 SCJ 524, Babulal Parate v State of Maharashtra (1961) 2 SCA 497.
40 Ie under the Rajasthan Municipalities Act 1959 s 63(4).
41 Jan Mohd v State of Rajasthan AIR 1993 Raj 86, Jan Mohd v State of Rajasthan (1992) 2 WLC 463 (Raj).
42 Siddhartha Bhattacharjee v Municipal Corporation of Calcutta AIR 1985 Cal 153 [LNIND 1984 CAL 196] [LNIND 1984 CAL
196] [LNIND 1984 CAL 196](no hearing is required to be provided for demolishing a wall or building which is in imminent
danger; in accordance with Calcutta Minicipal Act 1951 s 561).
43 Ie under the Post Office Act 1898 s 23.
44
Ie under the Post Office Act 1898 s 52.
(however, once an article is destroyed it may not be possible to prove that it was an article which contravened the provisions of
the Act).
45 Young Persons (Harmful Publications) Act 1956 s 4.
46 Young Persons (Harmful Publications) Act 1956 s 5.

238
Page 47
47 Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 s 8(1)(C).
48 Drugs and Magic Remedies (Objectionable Advertisements) Act 1954 s 8(3).
49 Prevention of Food Adulteration Act 1954 s 10(4).
53 Drugs and Cosmetics Act 1940 s 22.
54 Drugs and Cosmetics Act 1940 s 23(4)(1).

POWERS/[005.177] Non-statutory powers
[005.177] Non-statutory powers A government can carry on general administration so long as it does not
infringe a constitutional or a legal provision, or infringe a legal right of a person. Formulation of policies and
its implementation is pre-eminently a function of the executive1, and the task of the executive is facilitated by
the parliamentary system of government which operates both at the Centre and the states. An essential
characteristic of the system mentioned above, since the Constitution provides that the council of ministers
are collectively responsible to the lower house of the legislature, is the collaboration between the executive
and the legislative organs2.
The administrative organ does not need a statutory authorisation to act and execute a policy. The
Constitution confers executive power on the central government which extends to all matters with respect to
which the Parliament is empowered to make laws and similarly, the executive power conferred on the state
government is co-extensive with that of the state legislature with respect to all matters which the state
legislature is empowered to pass laws3. Hence, the government can implement its policies without any
specific legislative sanction as long as it enjoys majority support in the Legislature and by ensuring that it
does not infringe a legal or a fundamental right of any person and does not infringe a constitutional or legal
provision4. For instance, in the absence of a statutory provision, it does not mean that the state government
cannot prescribe text books for school in exercise of its administrative power5, provided that it does not
infringe the rights of a person6. Hence, executive power of a modern state is not capable of any precise
definition and the scope of the executive power is residuary, that is, functions which do not fall strictly within
the field of legislative or judicial fall in the residuary class and must be regarded as executive7.
An administrative order without legal backing is not judicially enforceable against any person8. Furthermore,
the Constitution9 has envisaged legislative and not a purely administrative action10.
The government can undertake, inter alia, the following activities administratively without the need of
sanction of a specific statutory power:
(1) engage in trading11;

(2) enter into a contract with any person12, accept or reject a tender13, and dispose of public
property14;
(3) confer benefits on a person15;
(4) enter into treaties with foreign countries16;
(5) create posts and make appointments thereto17, promote its employees from lower to higher
administrative posts18 and fix their seniority19, grades and emoluments20; create a cadre or
merge one cadre with another21, or lay down service conditions for its employees22;
(6) transfer its employees from one place to another23;
239
Page 48
(7) establish fair price shops24;

(8) issue directions and instructions25;
(9) appoint an ad hoc enquiry officer or committee to enquire into some matter26, or an enquiry
commission to enquire into a matter of public importance;
(10) suspend a student pending enquiry against him for breach of discipline27;
(11) removal of a student from an educational institution purely on academic grounds28.
The government can create administrative bodies through its administrative power, and can assign to these
bodies various functions to be discharged, subject to the condition that they do not infringe legal rights of a
person29.
However, equities may arise in favour of an affected person even when the government acts administratively
and without any statutory sanction30.
1 A S Sangwan v Union of India AIR 1981 SC 1545, A S Sangwan v Union of India (1980) Supp SCC 559, A S Sangwan v
Union of India (1981) Lab IC 831; see Union of India v SL Dutta AIR 1991 SC 363 [LNIND 1990 SC 869] [LNIND 1990 SC 869]
[LNIND 1990 SC 869], Union of India v SL Dutta (1991) 1 SCC 505 [LNIND 1990 SC 869] [LNIND 1990 SC 869] [LNIND 1990
SC 869], Union of India v SL Dutta (1990) 4 JT 741; Oswal Woollen Mills Ltd v Union of India AIR 1983 SC 969 [LNIND 1983
SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC 167], Oswal Woollen Mills Ltd v Union of India (1983) 4 SCC 345 [LNIND 1983
SC 167] [LNIND 1983 SC 167] [LNIND 1983 SC 167], Oswal Woollen Mills Ltd v Union of India (1983) UJ 657 (SC).
2 Constitution of India arts 75(3) and 164(2).
3 Mohan Kumar Singhania v Union of India AIR 1992 SC 1, Mohan Kumar Singhania v Union of India (1992) Supp 1 SCC 594.
4 Ram Jawaya v State of Punjab AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123](the
executive function, comprising both the determination of policy as well as the execution of it, includes initiation of legislation,
maintenance of order, promotion of social and economic welfare, direction of foreign policy, and in total the supervision of the
general administration of the state. The executive power is not, however, free from ultimate legislative control because of the
responsibility of the Council of Ministers to the Legislature. Also, if any activity needs expenditure of money, the same must be
sanctioned by the legislature as no money can be withdrawn from the Consolidated Fund without an Appropriation Act.
Furthermore, if the government requires certain power in addition to what they possess under ordinary law in order to carry on a
particular activity, then specific legislation is necessary. If it becomes necessary to invade or encroach upon a person's rights in
order to enable the government to carry on the activity in question, then a specific legislation sanctioning such a course would
be needed).
SC 106] [LNIND 1974 SC 106].
7 Jayantilal A mrathlal Shodhan v FN Rana AIR 1964 SC 648 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963 SC
246], Jayantilal A mrathlal Shodhan v FN Rana (1964) 2 SCA 284 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963
SC 246], Jayantilal A mrathlal Shodhan v FN Rana (1964) 5 Guj LR 481.
8 Vidadala Harinadhababu v NT Ramara, Chief Minister, State of Andhra Pradesh AIR 1990 AP 20 [LNIND 1989 AP 333]
[LNIND 1989 AP 333] [LNIND 1989 AP 333], Vidadala Harinadhababu v NT Ramara, Chief Minister, State of Andhra Pradesh
(1989) 3 Andh LT 66 [LNIND 1989 AP 333] [LNIND 1989 AP 333] [LNIND 1989 AP 333]. R v Criminal Injuries Compensation
Board, ex p Lain (1967) 2 QB 864; R v Criminal Injuries Comp Board, ex P Tong, (1977) 1 All ER 171 175: (the Criminal
Injuries Compensation Board was appointed administratively to implement the scheme to make ex gratia payments to the
victims of criminal offences out of the moneys voted by Parliament. The Board has no statutory basis; its awards have no legal
backing; they cannot be enforced by law and they are, in truth, part and parcel of an administrative system and none has a right
to payment of compensation).
9 Ie under the Constitution of India arts 19 & 21.
10 See Union of India v Anglo Afghan Agencies AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967
SC 334], Union of India v Anglo Afghan Agencies [1968] 2 SCR 366 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967
SC 334], Union of India v Anglo Afghan Agencies (1968) 2 SCA 31.
11 Constitution of India art 298: see [005. 097]. As to executive power of the government to trade see generally
[80]CONSTITUTIONAL LAW.
12 Mahabir Auto Stores v Indian Oil Corpn AIR 1990 SC 1031 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC
240
Page 49
135], Mahabir Auto Stores v Indian Oil Corpn (1990) 3 SCC 752 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC
135], Mahabir Auto Stores v Indian Oil Corpn [1990] 1 SCR 818 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC
135].
13 See Sri Rama Engineering Contractors v Construction Engineer, Civil Engineering, Department of Space, Govt of India,
Sriharikota, Nellore AIR 1981 AP 165 [LNIND 1981 AP 64] [LNIND 1981 AP 64] [LNIND 1981 AP 64], Sri Rama Engineering
Contractors v Construction Engineer, Civil Engineering, Department of Space, Govt of India, Sriharikota, Nellore (1981) 1 Andh
WR 327.
14 See Haji T M Hassan Rawther v Kerala Financial Corpn AIR 1988 SC 157 [LNIND 1987 SC 766] [LNIND 1987 SC 766]
[LNIND 1987 SC 766], Haji T M Hassan Rawther v Kerala Financial Corpn (1988) 1 SCC 166 [LNIND 1987 SC 766] [LNIND
1987 SC 766] [LNIND 1987 SC 766], Haji T M Hassan Rawther v Kerala Financial Corpn (1987) 5 JT 368, Haji T M Hassan
Rawther v Kerala Financial Corpn (1988) 1 SCJ 251; Chetlal Sao v State of Bihar AIR 1986 Pat 267, Chetlal Sao v State of
Bihar (1986) Pat LJR 149 (lease of fishery rights vested in state government).
15 See Government Contracts [005.097].
16 Maganbhai Ishwarbhai Patel v Union of India AIR 1969 SC 783 [LNIND 1969 SC 6] [LNIND 1969 SC 6] [LNIND 1969 SC 6],
Maganbhai Ishwarbhai Patel v Union of India (1970) 3 SCC 400 [LNIND 1969 SC 6] [LNIND 1969 SC 6] [LNIND 1969 SC 6],
Maganbhai Ishwarbhai Patel v Union of India [1969] 3 SCR 254 [LNIND 1969 SC 6] [LNIND 1969 SC 6] [LNIND 1969 SC 6];
Nirmal Bose v Union of India AIR 1959 Cal 506 [LNIND 1959 CAL 71] [LNIND 1959 CAL 71] [LNIND 1959 CAL 71], Nirmal
Bose v Union of India (1959) 63 Cal WN 485, Union of India v Manmull Jain AIR 1954 Cal 615 [LNIND 1954 CAL 137] [LNIND
1954 CAL 137] [LNIND 1954 CAL 137](although, at times, legislation may be necessary to implement the terms of a treaty).
17 B N Nagarajan v State of Mysore AIR 1966 SC 1942 [LNIND 1966 SC 67] [LNIND 1966 SC 67] [LNIND 1966 SC 67];
Jammu and Kashmir Public Service Comr v Narinder Mohan AIR 1994 SC 1808 [LNIND 1993 SC 1025] [LNIND 1993 SC 1025]
[LNIND 1993 SC 1025], Jammu and Kashmir Public Service Comr v Narinder Mohan (1994) 2 SCC 630 [LNIND 1993 SC 1025]
[LNIND 1993 SC 1025] [LNIND 1993 SC 1025], Jammu and Kashmir Public Service Comr v Narinder Mohan AIR 1994 SCW
1701; State of Sikkim v Dorjee Tshering Bhutia AIR 1991 SC 1933 [LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991
SC 392], State of Sikkim v Dorjee Tshering Bhutia (1991) 4 SCC 243 [LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991
SC 392], State of Sikkim v Dorjee Tshering Bhutia [1991] 3 SCR 633 [LNIND 1991 SC 392] [LNIND 1991 SC 392] [LNIND 1991
SC 392]; see Bool Chand v Chancellor, Kurukshetra University AIR 1968 SC 292 [LNIND 1967 SC 254] [LNIND 1967 SC 254]
[LNIND 1967 SC 254], Bool Chand v Chancellor, Kurukshetra University [1968] 1 SCR 434 [LNIND 1967 SC 254] [LNIND 1967
SC 254] [LNIND 1967 SC 254], Bool Chand v Chancellor, Kurukshetra University (1968) 1 SCA 124 [LNIND 1967 SC 254]
[LNIND 1967 SC 254] [LNIND 1967 SC 254].
18 Sant Ram Sharma v State of Rajasthan AIR 1967 SC 1910 [LNIND 1967 SC 222] [LNIND 1967 SC 222] [LNIND 1967 SC
222], Sant Ram Sharma v State of Rajasthan (1967) 2 SCA 574; see S L Sachdev v Union of India AIR 1981 SC 411 [LNIND
1980 SC 432] [LNIND 1980 SC 432] [LNIND 1980 SC 432], S L Sachdev v Union of India (1981) 4 SCC 562, S L Sachdev v
19 Accountant-General v S Doraiswamy AIR 1981 SC 783 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452],
Accountant-General v S Doraiswamy (1981) 4 SCC 93 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452],
Accountant-General v S Doraiswamy [1981] 2 SCR 155 [LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452].
20 Shamkant Narayan Deshpande v Maharashtra Industrial Development Corpn AIR 1993 SC 1173, Shamkant Narayan
Deshpande v Maharashtra Industrial Development Corpn 1992 AIR SCW 2867, Shamkant Narayan Deshpande v Maharashtra
Industrial Development Corpn (1993) Supp 2 SCC 194.
21 Vinay Kumar Verma v State of Bihar AIR 1990 SC 1689 [LNIND 1990 SC 214] [LNIND 1990 SC 214] [LNIND 1990 SC 214],
Vinay Kumar Verma v State of Bihar (1990) 2 SCC 647 [LNIND 1990 SC 214] [LNIND 1990 SC 214] [LNIND 1990 SC 214],
Vinay Kumar Verma v State of Bihar [1990] 2 SCR 374 [LNIND 1990 SC 214] [LNIND 1990 SC 214] [LNIND 1990 SC 214] (the
state government can increase the number of posts in the cadre of executive engineers or can merge two cadres created by an
executive order by an executive fiat).
22 Mysore State Road Transport Corpn v Gopinath Gundachar Char AIR 1968 SC 464 [LNIND 1967 SC 293] [LNIND 1967 SC
293] [LNIND 1967 SC 293], Mysore State Road Transport Corpn v Gopinath Gundachar Char (1968) 2 SCJ 102 [LNIND 1967
SC 293] [LNIND 1967 SC 293] [LNIND 1967 SC 293], Mysore State Road Transport Corpn v Gopinath Gundachar Char (1968)
SCD 898 [LNIND 1967 SC 293] [LNIND 1967 SC 293] [LNIND 1967 SC 293]; Shamkant Narayan Deshpande v Maharashtra
Industrial Development Corpn AIR 1993 SC 1173, Shamkant Narayan Deshpande v Maharashtra Industrial Development Corpn
1992 AIR SCW 2867, Shamkant Narayan Deshpande v Maharashtra Industrial Development Corpn (1993) Supp 2 SCC 194; V
Balasubramaniam v Tamil Nadu Housing Board AIR 1988 SC 6 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND 1987 SC
661], V Balasubramaniam v Tamil Nadu Housing Board (1987) 4 SCC 738 [LNIND 1987 SC 661] [LNIND 1987 SC 661] [LNIND
1987 SC 661], V Balasubramaniam v Tamil Nadu Housing Board (1988) 2 SCJ 147.
23 See DD Suri v A K Barren AIR 1971 SC 175, DD Suri v A K Barren (1971) SCD 13, DD Suri v A K Barren (1971) UJ 67
(SC).
24 Sarkari Sasta Anaj Vikreta Sangh Tehsil Bemetra v State of Madhya Pradesh AIR 1981 SC 2030.
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26 Harekrushna Mahtab v Chief Minister, Orissa AIR 1971 Ori 175, Harekrushna Mahtab v Chief Minister, Orissa (1970) 1 Cut
WR 1.
27 Abhay Kumar Yadav v K Srinivasan AIR 1981 Del 381 [LNIND 1981 DEL 114] [LNIND 1981 DEL 114] [LNIND 1981 DEL
114], Abhay Kumar Yadav v K Srinivasan 1981 Rajdhani LR 354.
28 Jawaharlal Nehru University v B S Narwal AIR 1980 SC 1666 [LNIND 1980 SC 366] [LNIND 1980 SC 366] [LNIND 1980 SC
366].
29 Ghanashyam Misra v Orissa Association of Sanskrit Learning and Culture AIR 1971 Ori 212 [LNIND 1969 ORI 26] [LNIND
1969 ORI 26] [LNIND 1969 ORI 26]; See Harekrushna Mahtab v Chief Minister, Orissa AIR 1971 Ori 175, See Harekrushna
Mahtab v Chief Minister, Orissa (1970) 1 Cut WR 1; Union of India v WN Chadha AIR 1993 SC 1082, Union of India v WN
Chadha AIR 1993 SCW 423, Union of India v WN Chadha (1993) Cr LJ 859. Radhakrishna Agarwal v State of Bihar AIR 1977
SC 1496 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna Agarwal v State of Bihar (1977) 3
SCC 457 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna Agarwal v State of Bihar [1977] 3
SCR 249 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137] (no statutory power is needed for the government
to terminate a contract according to its terms. As to government contracts [005.097].
30 As to equities see [005.297].

ADMINISTRATIVE LAW/13. ADMINISTRATIVE DISCRIMINATION AND ARBITRARINESS/[005.178]
Discrimination
[005.178] Discrimination The Constitution secures all persons against arbitrary laws as well as against
arbitrary application of law and it ensures non-discrimination both in legislative and administrative spheres1.
When the statute does not suffer from the vice of excessive delegation2 of discretionary power3, but the
authority entrusted with the discretion under the statute acts in a discriminatory or arbitrary manner, by
treating equals differentially, or by not following the policy, or the principle laid down in the Act to regulate its
discretion, the action may be quashed4. Hence, when equality is denied on the basis of unreasonable
comparative evaluation of two persons or situations, it is characterised as discriminatory and the equal
protection clause5 may be invoked where discrimination appears on the express terms of the statute itself as
well as when it is the result of improper or prejudiced execution of the law6.
Some of the situations in which administrative action has been quashed as being discriminatory are:
Allotment orders of raw materials by the state government denying similar treatment, without any substantial
basis, to similar class of applicants are arbitrary and violative of the Constitution7.
Termination of the services of a temporary employee without sustainable grounds, although he was senior to
the retained employees, is illegal8. Similarly, retiring a certain employee at the age of 58 years but others at
60 years amounts to arbitrary application of law9. Furthermore, promotion of juniors in preference to the
seniors who have all the requisite qualifications for promotion is held to be discriminatory10.
A notification issued by the government under the Land Acquisition Act 189411, acquiring a tract of land
belonging to several owners for the purpose of constructing houses for low and middle income groups, and
thereafter releasing a small piece of land belonging to an influential family from acquisition proceedings, is
discriminatory in nature and non-est under the Constitution12.
Acting upon a policy decision not to permit the opening of new medical colleges in the state, the government
rejected the applications of all institutions but permitted functional medical colleges to increase their intake or
split into two units. The court regarded the permission to split as indirectly granting permission to start new
medical colleges and held this action of the government as illegal and discriminative13.
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Page 51
Where the selection committee deprived a candidate the benefit of a second persuasion to attend the
interview, the selection order was quashed on the ground that it amounted to unequal treatment of equals14.
The government cannot engage in hostile discrimination by preventing only certain organisations from using
government buildings for their public functions15.
Non-communication of an order to the affected party is arbitrary and violative of the rules of natural justice16.
In the absence of laws to govern the issue of passport, the difference in the treatment of persons rests solely
on the arbitrary selection of the executive. Such a discretion violates the doctrine of equality17. The courts
presume that the administration of a particular law has not been discriminatory and it is for the complainant
to prove the abuse of power18. However, where the order is impeached as discriminatory, and the
circumstances prima facie renders the exercise of the power discriminatory qua the petitioner, it is incumbent
on the authority passing the order to dispel that charge by disclosing to the court that reason or motive which
impelled it to take the impugned action19.
Moreover, differential government action is not discriminatory if it is based on reasonable and relevant
considerations20. Where under the Customs Act21, the Central Government exempted a particular trading
corporation from payment of customs duty on import of edible oil, the order was sustained on the ground that
the special order was passed in the interest of the public22. Where a uniform retention price was fixed for the
entire cement industry inspite of the differences in the cost of production, the court held that the price was
fixed on a rational basis taking into account the relevant data and factors including acceptance by the
cement industry of one uniform retention price for the entire industry23.
1 Ie the Constitution of India art 14.
2 As to excessive delegation see [005.183] and following.
4 State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1], State
of West Bengal v Anwar Ali Sarkar [1952] SCR 284 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1], State of West
Bengal v Anwar Ali Sarkar (1952) SCJ 55 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1]; see Yick Wo v Hopkins,
(1886) 118 US 356 (by an ordinance, the City of San Francisco made it unlawful to carry on laundry, without the consent of the
board of supervisors, except in a brick or stone building. While administering the law, it was found that 200 Chinese launderers
were denied permission by the board, even though they had complied with all the requisite conditions, while 80 non-Chinese,
under similar circumstances, had been permitted. The matter was brought before the Supreme Court by two Chinese
launderers. The Court held that the ordinance in question had been administered with 'a mind so unequal and oppressive as to
amount to a practical denial by the State' of equal protection of laws. The Court went on to state: although the law itself be fair
on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal
hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their
rights, the denial of equal justice is still within the prohibition of the Constitution).
6 Kathi Raning Rawat v State of Saurashtra AIR 1952 SC 123 [LNIND 1952 SC 12] [LNIND 1952 SC 12] [LNIND 1952 SC 12],
Kathi Raning Rawat v State of Saurashtra [1952] SCR 435 [LNIND 1952 SC 12] [LNIND 1952 SC 12] [LNIND 1952 SC 12],
Kathi Raning Rawat v State of Saurashtra (1952) SCJ 168; Vellore Educational Trust v State of Andhra Pradesh AIR 1988 SC
130, Vellore Educational Trust v State of Andhra Pradesh (1987) Supp SCC 543, Vellore Educational Trust v State of Andhra
Pradesh (1987) 5 JT 396; see Ram Krishna Dalmia v SR Tendolkar AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC
31] [LNIND 1958 SC 31], Ram Krishna Dalmia v SR Tendolkar [1959] SCR 279 [LNIND 1958 SC 31] [LNIND 1958 SC 31]
[LNIND 1958 SC 31]; Pannalal Binjraj v Union of India AIR 1957 SC 397 [LNIND 1956 SC 117] [LNIND 1956 SC 117] [LNIND
1956 SC 117], Pannalal Binjraj v Union of India [1957] SCR 233 [LNIND 1956 SC 117] [LNIND 1956 SC 117] [LNIND 1956 SC
117], Pannalal Binjraj v Union of India (1957) SCA 660; Bidi Supply Co v Union of India AIR 1956 SC 479 [LNIND 1956 SC 29]
[LNIND 1956 SC 29] [LNIND 1956 SC 29]; Kedar Nath Bajoria v State of West Bengal AIR 1953 SC 404 [LNIND 1953 SC 67]
[LNIND 1953 SC 67] [LNIND 1953 SC 67], Kedar Nath Bajoria v State of West Bengal [1954] SCR 30 [LNIND 1953 SC 67]
[LNIND 1953 SC 67] [LNIND 1953 SC 67], Kedar Nath Bajoria v State of West Bengal (1953) SCJ 580 [LNIND 1953 SC 67]
[LNIND 1953 SC 67] [LNIND 1953 SC 67].
7 Ie the Constitution of India art 14. Omprakash v State of Jammu and Kashmir AIR 1981 SC 1001 [LNIND 1981 SC 82] [LNIND
1981 SC 82] [LNIND 1981 SC 82], Omprakash v State of Jammu and Kashmir (1981) 2 SCC 270 [LNIND 1981 SC 82] [LNIND
1981 SC 82] [LNIND 1981 SC 82].
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Page 52
8 Manager, Government Branch Press v D B Belliappa AIR 1979 SC 429 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND
1978 SC 364], Manager, Government Branch Press v D B Belliappa (1979) 1 SCC 477 [LNIND 1978 SC 364] [LNIND 1978 SC
364] [LNIND 1978 SC 364], Manager, Government Branch Press v D B Belliappa [1979] 2 SCR 458 [LNIND 1978 SC 364]
[LNIND 1978 SC 364] [LNIND 1978 SC 364].
9 Raj Soni v Air Officer-in-Charge Administration AIR 1990 SC 1305 [LNIND 1990 SC 223] [LNIND 1990 SC 223] [LNIND 1990
SC 223], Raj Soni v Air Officer-in-Charge Administration (1990) 3 SCC 261 [LNIND 1990 SC 223] [LNIND 1990 SC 223]
[LNIND 1990 SC 223], Raj Soni v Air Officer-in-Charge Administration [1990] 2 SCR 412 [LNIND 1990 SC 223] [LNIND 1990
SC 223] [LNIND 1990 SC 223]; see Union of India v Moolchand Dasumal Pardasani AIR 1971 SC 2369 [LNIND 1971 SC 441]
[LNIND 1971 SC 441] [LNIND 1971 SC 441], Union of India v Moolchand Dasumal Pardasani (1971) SCD 1052 [LNIND 1971
SC 441] [LNIND 1971 SC 441] [LNIND 1971 SC 441], Union of India v Moolchand Dasumal Pardasani (1971) Lab IC 1390
10 Punjab State Electricity Board, Patiala v Ravinder Kumar Sharma AIR 1987 SC 367 [LNIND 1986 SC 405] [LNIND 1986 SC
405] [LNIND 1986 SC 405], Punjab State Electricity Board, Patiala v Ravinder Kumar Sharma (1986) 4 SCC 617 [LNIND 1986
SC 405] [LNIND 1986 SC 405] [LNIND 1986 SC 405], Punjab State Electricity Board, Patiala v Ravinder Kumar Sharma (1987)
1 SCWR 68.
11 Ie under the Land Acquisition Act 1894 s 6.
12 Chandra Bansi Singh v State of Bihar AIR 1984 SC 1767 [LNIND 1984 SC 221] [LNIND 1984 SC 221] [LNIND 1984 SC
221], Chandra Bansi Singh v State of Bihar (1984) 4 SCC 316 [LNIND 1984 SC 221] [LNIND 1984 SC 221] [LNIND 1984 SC
221], Chandra Bansi Singh v State of Bihar [1985] 1 SCR 579 [LNIND 1984 SC 221] [LNIND 1984 SC 221] [LNIND 1984 SC
221].
13 Nitte Education Trust v State of Karnataka AIR 1993 Kant 167 [LNIND 1992 KANT 147] [LNIND 1992 KANT 147] [LNIND
1992 KANT 147], Nitte Education Trust v State of Karnataka (1993) ILR 2049 (Kant), Nitte Education Trust v State of Karnataka
(1992) 3 Kant LJ 160.
14 JP Kulshrestha v Chancellor, Allahabad University AIR 1980 SC 2141 [LNIND 1980 SC 221] [LNIND 1980 SC 221] [LNIND
1980 SC 221], JP Kulshrestha v Chancellor, Allahabad University (1980) 3 SCC 418 [LNIND 1980 SC 221] [LNIND 1980 SC
221] [LNIND 1980 SC 221], JP Kulshrestha v Chancellor, Allahabad University (1980) Lab IC 692.
15 T V Anandan v State of Kerala AIR 1981 Ker 242.
16 Liberty Oil Mills v Union of India AIR 1984 SC 1271 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381],
Liberty Oil Mills v Union of India (1984) 3 SCC 465 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381], Liberty
Oil Mills v Union of India [1984] 3 SCR 676 [LNIND 1984 SC 381] [LNIND 1984 SC 381] [LNIND 1984 SC 381].
SC 427] [LNIND 1967 SC 427], Satwant Singh Sawhney v D Ramarathnam, Asst Passport Officer (1967) 2 SCA 523. As to
'statutory powers' see [005.176].
18 Ram Krishna Dalmia v SR Tendolkar AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31],
Ram Krishna Dalmia v SR Tendolkar [1959] SCR 279 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC 31].
19 Manager, Government Branch Press v D B Belliappa AIR 1979 SC 429 [LNIND 1978 SC 364] [LNIND 1978 SC 364]
[LNIND 1978 SC 364], Manager, Government Branch Press v D B Belliappa (1979) 1 SCC 477 [LNIND 1978 SC 364] [LNIND
1978 SC 364] [LNIND 1978 SC 364], Manager, Government Branch Press v D B Belliappa [1979] 2 SCR 458 [LNIND 1978 SC
364] [LNIND 1978 SC 364] [LNIND 1978 SC 364]; Pannalal Binjraj v Union of India AIR 1957 SC 397 [LNIND 1956 SC 117]
[LNIND 1956 SC 117] [LNIND 1956 SC 117], Pannalal Binjraj v Union of India [1957] SCR 233 [LNIND 1956 SC 117] [LNIND
1956 SC 117] [LNIND 1956 SC 117], Pannalal Binjraj v Union of India (1957) SCA 660; see State of West Bengal v Anwar Ali
Sarkar AIR 1952 SC 75 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1], State of West Bengal v Anwar Ali Sarkar
[1952] SCR 284 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1], State of West Bengal v Anwar Ali Sarkar (1952)
SCJ 55 [LNIND 1952 SC 1] [LNIND 1952 SC 1] [LNIND 1952 SC 1].
20 M Jhangir Bhatusha v Union of India AIR 1989 SC 1713 [LNIND 1989 SC 329] [LNIND 1989 SC 329] [LNIND 1989 SC 329],
M Jhangir Bhatusha v Union of India (1989) 2 JT 465, M Jhangir Bhatusha v Union of India (1989) 42 ELT 344; Shah
Devchand and Co v Union of India AIR 1991 SC 1931, Shah Devchand and Co v Union of India (1991) Supp 2 SCC 86, Shah
Devchand and Co v Union of India (1991) 3 JT 313; Janin Exports Pvt Ltd v Union of India AIR 1991 SC 1721, Janin Exports
Pvt Ltd v Union of India (1991) 2 Scale 561.
21 Ie under the Indian Customs Act 1962 s 25(2).
22 M Jhangir Bhatusha v Union of India AIR 1989 SC 1713 [LNIND 1989 SC 329] [LNIND 1989 SC 329] [LNIND 1989 SC 329],
M Jhangir Bhatusha v Union of India (1989) 2 JT 465, M Jhangir Bhatusha v Union of India (1989) 42 ELT 344.
23 India Cement Ltd v Union of India AIR 1991 SC 724 [LNIND 1990 SC 435] [LNIND 1990 SC 435] [LNIND 1990 SC 435],
India Cement Ltd v Union of India (1990) 4 SCC 356 [LNIND 1990 SC 435] [LNIND 1990 SC 435] [LNIND 1990 SC 435], India
Cement Ltd v Union of India (1990) 3 JT 572.
244
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Arbitrariness
[005.179] Arbitrariness Arbitrariness is differentiated from discrimination by the fact that there is no need for
a comparative evaluation of two persons to determine arbitrariness1.
Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional
law and is, therefore, violative of the Constitution2 which requires that state action must be based on valid
relevant principles applicable alike to all similarly situated and it must not be guided by any extraneous or
irrelevant considerations3 because it would amount to denial of equality4. For instance, where the state
government dismissed 1100 members of the police force for participation in an agitation and subsequently
reinstated 1000 of them to their original posts, the court held that the remaining persons have been arbitrarily
weeded out for discriminatory and more severe treatment than those who were similarly situate. The court
therefore directed reinstatement of other persons as well5.Thus, the Constitution strikes at arbitrariness in
administration even if the law under which the action is taken is valid6. Discretion when conferred upon an
executive authority must be exercised within clearly defined limits governed by law and not the caprice of the
authority7. Hence, any decision which is arbitrary, or discriminatory, may be quashed by the courts by
invoking the provisions of the Constitution8.
Arbitrary and discriminatory action in matters like selection, promotion, seniority, transfer and dismissal in
service matters has been quashed by the courts9. Where a teacher in a municipal school was dismissed
because of his past association with a political party prior to joining the municipal service, the Supreme Court
quashed the order on the ground that it offended the fundamental right guaranteed by the Constitution to
deny employment to an individual because of his past political affinities, unless such affinities are considered
likely to affect the integrity and efficiency of the individual's service10. Where the petitioners acting as the
trustees of a dharamshala are dispossessed of their authority by the state government, by an executive order
passed without the authority of law, the order can be quashed on the ground that such an action is
destructive of the basic principles of rule of law. A trustee although of a public trust can be dismissed only by
a procedure recognised by law and not by an executive fiat11.
1 As to discrimination see [005.178].
3 As to relevant and irrelevant considerations see [005.192].
4 EP Royappa v State of Tamil Nadu AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359], EP
Royappa v State of Tamil Nadu [1974] 2 SCR 348 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359], EP
Royappa v State of Tamil Nadu (1974) 4 SCC 3 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359].
5 Sengara Singh v State of Punjab (1983) 4 SCC 225 [LNIND 1983 SC 183] [LNIND 1983 SC 183] [LNIND 1983 SC 183],
Sengara Singh v State of Punjab (1983) 2 Scale 713 [LNIND 1983 SC 183] [LNIND 1983 SC 183] [LNIND 1983 SC 183],
Sengara Singh v State of Punjab (1983) 3 SLR 685.
6 Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Maneka
Gandhi v Union of India (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25], Maneka Gandhi v
7 Som Raj v State of Haryana, AIR 1990 SC 1176 [LNIND 1990 SC 103] [LNIND 1990 SC 103] [LNIND 1990 SC 103], Som
Raj v State of Haryana, (1990) 2 SCC 653 [LNIND 1990 SC 103] [LNIND 1990 SC 103] [LNIND 1990 SC 103], Som Raj v State
of Haryana, [1990] 1 SCR 535 [LNIND 1990 SC 103] [LNIND 1990 SC 103] [LNIND 1990 SC 103].
8 A L Kalra v Project and Equipment Corpn of India Ltd AIR 1984 SC 1361 [LNIND 1984 SC 136] [LNIND 1984 SC 136]
[LNIND 1984 SC 136]; Santoshi Education Trust v State of Gujarat AIR 1981 Guj 85, Santoshi Education Trust v State of
Gujarat 22 Guj LR 669.
9 Shrilekha Vidyarthi v State of Uttar Pradesh AIR 1191 SC 537, Shrilekha Vidyarthi v State of Uttar Pradesh (1991) 1 SCC
212 [LNIND 1990 SC 565] [LNIND 1990 SC 565] [LNIND 1990 SC 565], Shrilekha Vidyarthi v State of Uttar Pradesh (1990)
Supp 1 SCR 411.
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10 State of Madhya Pradesh v Ramashanker Raghuvanshi AIR 1983 SC 374 [LNIND 1983 SC 67] [LNIND 1983 SC 67]
[LNIND 1983 SC 67], State of Madhya Pradesh v Ramashanker Raghuvanshi (1983) 2 SCC 145 [LNIND 1983 SC 67] [LNIND
1983 SC 67] [LNIND 1983 SC 67], State of Madhya Pradesh v Ramashanker Raghuvanshi (1983) 2 SCWR 45.
11 11 Bishan Das v State of Punjab AIR 1961 SC 1570 [LNIND 1961 SC 189] [LNIND 1961 SC 189] [LNIND 1961 SC 189],
Bishan Das v State of Punjab [1962] 2 SCR 69 [LNIND 1961 SC 189] [LNIND 1961 SC 189] [LNIND 1961 SC 189].

ADMINISTRATIVE LAW/13. ADMINISTRATIVE DISCRIMINATION AND ARBITRARINESS/[005.180] Viva
voce
[005.180] Viva voce As regards the compatibility of a viva voce test with the provision of the Constitution1 as
a mechanism of selecting candidates either for admission to Educational Institutions, or for purposes of
appointment to public posts, the Supreme Court has adopted the position that the viva voce test must be
used as a supplementary test, and that its weightage in the entire selection process must be restricted2.
However, the court does not accept the contention that the oral interview test by itself is so defective that
selecting candidates for admission on the basis of oral interview in addition to written test must be regarded
as arbitrary3. In view of the subjective and impressionistic nature of an oral interview, the court prescribed
the following conditions subject to which a viva voce test ought to be conducted so as to reduce the chance
of arbitrariness in conducting interviews:
(i) oral interview test must not be relied upon as an exclusive test but must be resorted to as an
additional or supplementary test;
(ii) persons of high integrity, caliber and qualification must be appointed to conduct the test; and
(iii) attaching high relative value to the viva voce in the overall evaluation of a candidate for
purposes of admission to a professional college must not be practiced. The court thus held that
allocation of 33 1/3 per cent of the total marks to oral interview was plainly 'arbitrary' and
unreasonable and that not more than 15 per cent of the total marks ought to be allotted to the
viva voce test4.
The court differentiated between selection of candidates for admission to educational institutions and for jobs
from the point of view of according relative importance to the viva voce test. For instance, in case of
admission to colleges, importance attached to the interview test ought to be minimal because the candidate's
personality is in the formative stage and is yet to develop5. Therefore, the allotment of marks for the interview
test for entry to public services may be higher than that for admission to colleges6. Moreover, there is no rule
of thumb regarding the precise weight to be allotted to the viva voce test in all cases and can vary from
service to service according to the requirements of each service, the minimum qualifications prescribed, the
age group from which selection is to be made, the body to which the task of holding the interview test is
entrusted and a host of other factors7. Furthermore, prescribing too high a percentage of marks for the viva
voce test is governed by the principle that conferment of broad and uncontrolled discretion on administrative
authorities is regarded as violative of the Constitution8. The Court commended the model followed by the
Union Public Service Commission of allocating 12.2 per cent marks for the viva voce test for selection of
candidates to the India Administrative Service9. Where, for selection of candidates for the posts of excise
inspectors, 28.5 per cent out of the total marks of 350 was allotted to viva voce, it was held to be
unreasonable10. In case of selection for posts of excise and taxation inspectors, viva voce test is not totally
dispensed with, and not more than 15 per cent of the total marks in the selection of candidates, from college
and school for public employment by direct recruitment, where the rules provided for a composite process of
selection, namely written examination and interview may be allotted as percentage of viva voce marks11.
Marks for interview and group discussion cannot exceed 10 per cent and 5 per cent respectively of the total
marks for selection of candidate for the posts of assistant civil engineers12.
However, in certain cases, a higher percentage of marks for the viva voce test is judicially accepted. For
instance, prescription of 33 1/3 per cent marks in the viva voce test for recruitment to senior state
administrative services is valid13. Justifying the need for prescription of a higher percentage, the court held
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that the officers to be selected for higher services would, in course of time, be required to man increasingly
responsible positions in core services, and, therefore, they must be endowed with personality traits
conducive to the levels of performance in such services14.
The Supreme Court upheld the validity of the licensing regulations made by the Central Board of Excise and
Customs15, prescribing 50 marks out of 100 for the viva voce test as qualifying marks for obtaining a licence,
on the ground that the duties, responsibilities and functions of a customs house agent are very special,
demanding not only a high degree of probity and integrity but also intellectual skills, adaptability, judgment
and capacity to take prompt decisions in conformity with the law, rules and regulations16. The court with a
view to check arbitrariness in the process of awarding marks at the viva voce test, required maintainence of
proper records of vive voce in respect of each candidate and marks assigned under different heads at the
oral test considered relevant to evaluate the candidate17. Furthermore, the number of candidates to be called
for the viva voce test ought not to be more than twice, or at the highest, thrice the number of vacancies to be
filled18.
However, there can be a selection process consisting purely of the subjective test of viva voce without any
objective component namely the written examination being included19.
2 Ajay Hasia v Khalid Mujib Sehravardi AIR 1981 SC 487 [LNIND 1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456],
Ajay Hasia v Khalid Mujib Sehravardi (1981) 1 SCC 722 [LNIND 1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456],
Ajay Hasia v Khalid Mujib Sehravardi [1981] 2 SCR 79 [LNIND 1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456].
3 See note 2 above.
Ajay Hasia v Khalid Mujib Sehravardi [1981] 2 SCR 79 [LNIND 1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456]; see
Arti Sapru v State of Jammu and Kashmir AIR 1981 SC 1009 [LNIND 1981 SC 121] [LNIND 1981 SC 121] [LNIND 1981 SC
121], Arti Sapru v State of Jammu and Kashmir (1981) 2 SCC 484 [LNIND 1981 SC 121] [LNIND 1981 SC 121] [LNIND 1981
SC 121], Arti Sapru v State of Jammu and Kashmir (1981) UJ 333 (SC).
5 See note 4 above.
6 Lila Dhar v State of Rajasthan AIR 1981 SC 1777 [LNIND 1981 SC 350] [LNIND 1981 SC 350] [LNIND 1981 SC 350], Lila
Dhar v State of Rajasthan (1971) 4 SCC 159, Lila Dhar v State of Rajasthan (1981) UJ 719 (SC)
7 See note 6 above.
8 Ashok Kumar Yadav v State of Haryana AIR 1987 SC 454 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC
197], Ashok Kumar Yadav v State of Haryana (1985) 4 SCC 417 [LNIND 1985 SC 197] [LNIND 1985 SC 197] [LNIND 1985 SC
197], Ashok Kumar Yadav v State of Haryana [1985] Supp 1 SCR 657.
9 See note 8 above.
10 Vikram Singh v Subordinate Services Selection Board AIR 1991 SC 1011 [LNIND 1990 SC 916] [LNIND 1990 SC 916]
[LNIND 1990 SC 916], Vikram Singh v Subordinate Services Selection Board (1991) 1 SCC 686 [LNIND 1990 SC 916] [LNIND
1990 SC 916] [LNIND 1990 SC 916], Vikram Singh v Subordinate Services Selection Board [1990] Supp 3 SCR 83.
11 Mohinder Sain Garg v State of Punjab (1991) 1 SCC 662 [LNIND 1990 SC 716] [LNIND 1990 SC 716] [LNIND 1990 SC
716], Mohinder Sain Garg v State of Punjab (1990) Supp 3 SCR 108, Mohinder Sain Garg v State of Punjab (1990) 4 JT 704.
12 Munindra Kumar v Rajiv Govil AIR 1991 SC 1607 [LNIND 1991 SC 280] [LNIND 1991 SC 280] [LNIND 1991 SC 280],
Munindra Kumar v Rajiv Govil (1991) 3 SCC 368 [LNIND 1991 SC 280] [LNIND 1991 SC 280] [LNIND 1991 SC 280], Munindra
Kumar v Rajiv Govil [1991] 2 SCR 812 [LNIND 1991 SC 280] [LNIND 1991 SC 280] [LNIND 1991 SC 280].
13 Mehmood Alam Tariq v State of Rajasthan AIR 1988 SC 1451 [LNIND 1988 SC 309] [LNIND 1988 SC 309] [LNIND 1988
SC 309], Mehmood Alam Tariq v State of Rajasthan (1988) 2 JT 417; see State of Uttar Pradesh v Rafiquddin AIR 1988 SC
162 [LNIND 1987 SC 739] [LNIND 1987 SC 739] [LNIND 1987 SC 739], State of Uttar Pradesh v Rafiquddin (1987) Supp SC
401, State of Uttar Pradesh v Rafiquddin (1988) 2 SCJ 170.
14 Mehmood Alam Tariq v State of Rajasthan AIR 1988 SC 1451 [LNIND 1988 SC 309] [LNIND 1988 SC 309] [LNIND 1988
SC 309], Mehmood Alam Tariq v State of Rajasthan (1988) 2 JT 417.
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15 Ie the Customs House Agents Licensing Regulations 1984.
16 D v Bakshi AIR 1993 SC 2374, D v Bakshi (1993) 3 SCC 663, D v Bakshi (1993) 4 JT 180.
19 Andhra Pradesh State Financial Corpn v C M Ashok Raju AIR 1995 SC 39 [LNIND 1994 SC 579] [LNIND 1994 SC 579]
[LNIND 1994 SC 579], Andhra Pradesh State Financial Corpn v C M Ashok Raju (1994) 5 SCC 359 [LNIND 1994 SC 579]
[LNIND 1994 SC 579] [LNIND 1994 SC 579], Andhra Pradesh State Financial Corpn v C M Ashok Raju (1994) 5 JT 481; see
Anzar Ahmad v State of Bihar AIR 1994 SC 141 [LNIND 1993 SC 905] [LNIND 1993 SC 905] [LNIND 1993 SC 905], Anzar
Ahmad v State of Bihar (1994) 1 SCC 150 [LNIND 1993 SC 905] [LNIND 1993 SC 905] [LNIND 1993 SC 905], Anzar Ahmad v
State of Bihar (1993) 6 JT 168.

Procedural safeguards
[005.181] Procedural safeguards The courts with a view to develop procedural safeguards to regulate
exercise of discretionary powers by the administrators, have held that the provisions of the Constitution1
guarantee the right of being heard to a person who may be adversely affected by an administrative order2.
'Audi alteram partem is a part of the Constitution' and no order prejudicial in nature, entailing civil
consequences, may be passed without providing the person the right to be heard3.
The principles of natural justice are recognized as a constitutional guardian4. The common law concept of
natural justice can be excepted by a statutory provision, but when the principle originates in the Constitution,
it cannot be excluded since a statutory provision cannot abridge a fundamental right5. Where the law
provides for compulsory purchase of property by the income-tax authorities, the person whose property is
sought to be acquired compulsorily ought to be given a reasonable opportunity of being heard6. An order of
purchase passed by the income tax department, without providing the intending vendor and intending
purchaser the opportunity to be heard, Can be challenged on the ground of non-compliance with the
principles of natural justice7. However, the court refuses to provide a statutory safeguard in the means of a
corrective machinery by way of appeal from, or revision of the discretionary decision, to a superior authority8.
1 Constitution of India art 14.
2 Cantonment Board v Taramani Devi AIR 1992 SC 61, Cantonment Board v Taramani Devi (1992) Supp 2 SCC 501.
3 Cantonment Board v Taramani Devi AIR 1992 SC 61, Cantonment Board v Taramani Devi (1992) Supp 2 SCC 501; Delhi
Transport Corpn v D T C Mazdoor Congress AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND 1990 SC
824], Delhi Transport Corpn v D T C Mazdoor Congress (1991) SCC 1213 (Lab), Delhi Transport Corpn v D T C Mazdoor
Congress (1991) Lab IC 91; Babita Prasad v State of Bihar (1993) Supp 3 SCC 269.
4 Union of India v Tulsiram Patel AIR 1985 SC 1416 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], Union
of India v Tulsiram Patel (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND 1985 SC 219] [LNIND 1985 SC 219], Union of India v
Tulsiram Patel [1985] Supp 2 SCR 131.
5 See note 4 above.
6 Income Tax Act 1961 s 269 UB.
7 CB Gautam v Union of India (1993) 1 SCC 78 [LNIND 1992 SC 833] [LNIND 1992 SC 833] [LNIND 1992 SC 833], CB
Gautam v Union of India [1993] 199 ITR 530 [LNIND 1992 SC 833] [LNIND 1992 SC 833] [LNIND 1992 SC 833]; see also
procedural ultra vires [005.185].
8 Babubhai & Co v State of Gujarat AIR 1985 SC 613 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117],
Babubhai & Co v State of Gujarat (1985) 2 SCC 732 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117],
Babubhai & Co v State of Gujarat (1985) 87 Bom LR 270 [LNIND 1985 SC 117] [LNIND 1985 SC 117] [LNIND 1985 SC 117].
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ADMINISTRATIVE LAW/14. DISCRETIONARY POWERS/(1) INTRODUCTION/A. GENERALLY/[005.182]
Nature
[005.182] Nature A discretionary power is one which is exercisable by the holder of the power in his
'discretion' or 'subjective satisfaction'. The discretionary nature of the power is denoted by the use of
expressions, inter alia, 'necessary', 'reasonable', 'if it is satisfied', and 'if it is of the opinion'.
The concept of administrative discretion involves a right to choose between more than one possible course
of action upon which there is room for reasonable people to hold differing opinions as to which is to be
preferred in a particular situation1. Hence, a discretionary power inherently has the potential of being abused
or misused by the holder of such power as he may be tempted not to act according to prescribed principles
of justice2. Administrative arbitrariness is subversive of the doctrine of Rule of Law3 and the principle of
equality laid down in the Constitution4.
The courts in order to regulate excessive delegation of discretionary powers have to balance the following
two inconsistent objectives:
(1) the decision-maker must be permitted to enjoy as much freedom as possible to exercise his
discretionary power conferred on him by the legislature5;
(2) the decision maker must be controlled in the exercise of his power because of the dictum that
absolute power corrupts absolutely6.
1 Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, Secretary of State
for Education and Science v Tameside Metropolitan Borough Council [1976] 3 All ER 665.
2 As to abuse of discretionary powers see [005.189] and following.
3 As to rule of law see [005.206].
4 Constitution of India art 14: see[80]CONSTITUTIONAL LAW.
5 As to fettering discretionary power see [005.200].
6 For regulation of discretionary power see [005.182] and following.

ADMINISTRATIVE LAW/14. DISCRETIONARY POWERS/(1) INTRODUCTION/B. EXCESSIVE
DELEGATION/[005.183] Doctrine of excessive delegation
[005.183] Doctrine of excessive delegation Conferring broad and uncanalised discretion on the
administration or the doctrine of excessive delegation of administrative power is invalid1. Reasonable control
over the exercise of discretionary power may be exercised by the courts at the stage of framing the
legislation2. Hence, the courts can veto excessive delegation of discretionary power on the ground that
conferring of broad, sweeping or uncanalised discretionary power may easily degenerate into arbitrariness,
or may result in discrimination and thus contravene the provisions of the Constitution3.
The legislature cannot enact a statutory provision conferring arbitrary power on the administration to be
exercised by it in its absolute discretion. Exercise of discretionary power is regulated by policies, standards,
guidelines or procedural safeguards. Power is not regarded as arbitrary if procedural safeguards like
recording of reasons for the decision taken, provision for appeal to and revision by a higher authority is
observed. If the purpose or object or policy is not clearly discernible from the statute, the courts may supply
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the same by the process of statutory interpretation. A statutory provision permitting the acquisition of any
movable property by compensating the owner is invalid4. The abovementioned provision is invalid since it
confers an uncontrolled power on the state government by not issuing guidelines regarding the object or
purpose for which the government might requisition any movable property and not laying down principles for
determining compensation5. A regulation, made by a transport corporation, permitting termination of services
of permanent employees by giving one months notice without recording any reason therefor and without
giving any opportunity of being heard to the concerned employee is invalid6. Any regulation which does not
provide guidelines, rules, or principles to govern the exercise of the discretion by the authorities is violative of
the Constitution7, as the provision suffers from the vice of excessive delegation of powers8.
The courts are more tolerant of broad discretionary power if vested in a high level functionary, for instance
the central government, on the basis that a high level body is apt to exercise power properly and not
arbitrarily. Where power is conferred on high and responsible officers they are expected to act with caution
and impartiality while discharging their duties. The vesting of discretionary power in state or public authorities
or an officer of high standing is treated as a guarantee that the power will be used fairly and with a sense of
responsibility9. However, where there is evidence of fault, abuse or maladministration, the court has quashed
the exercise of discretion by high officials or by the central government10. A rule conferring absolute power
on the government to compulsorily retire any employee11 is held invalid, since absence of guidelines to
regulate the discretion of the government renders the provision ultra vires the Constitution12. Furthermore,
wide discretion fraught with tyrannical potential even in high personages and absence of legal norms and
institutional checks is regarded as destructive of the foundation of Administrative Law which insists on
adequate procedural and substantive safeguards13.
An attack on the ground of excessive delegation can be repelled if the courts can find a guiding policy for the
exercise of power in question and the courts go a long way to find out the same in the preamble and other
provisions of the statute in order to uphold the delegating provision in question14. Under the All India
Services (Conditions of Service-Residuary Matters) Rules 1960, if the Central Government is satisfied that
the operation of any rule, under the All India Services Act 1951 or any regulation made under any such rule,
regulating the conditions of All India Services causes undue hardship in any particular case, it may by order,
dispense with or relax the requirements of that rule or regulation, to such extent and subject to such
exceptions and conditions as it considers necessary for dealing with the case in a just and equitable
manner15. The Supreme Court, in the abovementioned case, rejected the contention that the provision
vested absolute and arbitrary discretion in the government with no prescribed objective standards or
guidelines. The provision is meant to relax, in appropriate cases, the relentless rigour of a mechanical
application of the rules, so that civil servants may not be subjected to undue and undeserved hardship16.
The Special Courts Act 1979 provides that if the Central Government is of the opinion that there is a prima
facie case of the commission of an offence by a person, who holds a high public or political office, and that in
accordance with the guidelines contained in the preamble to the Act, the said offence ought to be dealt with
under the Act, the Central Government may make a declaration to that effect17. The abovementioned
provision is valid as it does not confer absolute and arbitrary power on the central government by regulating:
(1) the government to exercise discretion in accordance with the guidelines contained in the
preamble, providing sufficient safeguards against any abuse of power;
(2) application of mind regarding the existence of prima facie evidence of the commission of an
offence18.
The Court acts on the presumption that the government will act in accordance with law and in a bona fide
manner19.
Furthermore, the courts take a lenient view of social legislation. For instance, the Employees Provident Fund
Act 1952 provides that where an employer defaults in the payment of contribution to the Fund, the Central
Provident Fund Commissioner may recover from the employer such damages, not exceeding the amount of
arrears, as he may think fit to impose20. A regulation authorising the competent authority to declare an area
as a slum area, declare houses unfit for human habitation, and declare a slum area as a clearance area is
held valid21.
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Subsequently, the courts do not accept the concept of absolute or unfettered discretion22. The development
of Administrative Law is characterised by a consistent series of decisions controlling and structuring the
discretion conferred on the state and its officers23. No discretionary power, howsoever broadly worded, is
immune to judicial reviewability24. Where a statute seeks to confer unfettered discretion on an authority, the
use of the adjective 'unfettered' does not limit the control of the Judiciary over the Executive25. Furthermore,
when a statute declares a discretionary decision as final, the court can still probe into the legality of the
decision26.
Where a rule permits the appropriate authority to retire any government servant in public interest, the
requisite opinion is that, the retirement of the concerned employee is done in public interest and not
personal, political or in other interest27.
The Supreme Court has emphasized that the executive, alongwith the judiciary, is under a general duty to
act fairly. Although the court does not sit as an appellate court, to re-appraise and re-examine the relevant
facts and circumstances which led the authority to take action, the court must be convinced that the
concerned officer has formed the requisite opinion honestly and after applying his mind to the relevant
material available with him28.
1 See AIR India v Nergesh Meerza AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], AIR
India v Nergesh Meerza (1981) 4 SCC 335 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], AIR India v
Nergesh Meerza (1981) Lab IC 1313.
2 As to control by legislation see [005.186].
3 Ie the Constitution of India art 14 (Article 14 ensures equality before law and strikes at arbitrary and discriminatory state
action. If power conferred by statute on any authority of the State is vagrant and unconfined and no standards or principles are
laid down by the statute to guide and control the exercise of such power, the statute would be violative of the equality clause,
because it would permit arbitrary and capricious exercise of power, which is the antithesis of equality before law): see
Naraindas Indurkhya v State of Madhya Pradesh AIR 1974 SC 1232 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974
SC 106], Naraindas Indurkhya v State of Madhya Pradesh (1974) 4 SCC 788 [LNIND 1974 SC 106] [LNIND 1974 SC 106]
SC 106] [LNIND 1974 SC 106]; Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25]
[LNIND 1978 SC 25], Maneka Gandhi v Union of India (1978) 1 SCC 248 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND
1978 SC 25], Maneka Gandhi v Union of India [1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC
25]. As to equality before law see [80]CONSTITUTIONAL LAW.
4 State of Punjab v Khan Chand AIR 1974 SC 543 [LNIND 1973 SC 405] [LNIND 1973 SC 405] [LNIND 1973 SC 405], State of
Punjab v Khan Chand (1974) 1 SCC 549 [LNIND 1973 SC 405] [LNIND 1973 SC 405] [LNIND 1973 SC 405], State of Punjab v
Khan Chand (1974) 2 SCR 768 [LNIND 1973 SC 405] [LNIND 1973 SC 405] [LNIND 1973 SC 405].
5 See note 4 above.
6 Delhi Transport Corpn v D T C Mazdoor Congress AIR 1991 SC 101 [LNIND 1990 SC 824] [LNIND 1990 SC 824] [LNIND
1990 SC 824], Delhi Transport Corpn v D T C Mazdoor Congress (1991) SCC 1213 (Lab), Delhi Transport Corpn v D T C
Mazdoor Congress (1991) Lab IC 91; Suman Gupta v State of Jammu and Kashmir AIR 1983 1235, Suman Gupta v State of
Jammu and Kashmir (1983) 4 SCC 339 [LNIND 1983 SC 257] [LNIND 1983 SC 257] [LNIND 1983 SC 257], Suman Gupta v
State of Jammu and Kashmir (1983) UJ 897 (SC). See also [005.200].
8 AIR India v Nergesh Meerza AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], AIR
India v Nergesh Meerza (1981) 4 SCC 335 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], AIR India v
Nergesh Meerza (1981) Lab IC 1313.
9 Commr of Sales Tax, Madhya Pradesh, Indore v Radhakrishan AIR 1979 SC 1588 [LNIND 1978 SC 288] [LNIND 1978 SC
288] [LNIND 1978 SC 288], Commr of Sales Tax, Madhya Pradesh, Indore v Radhakrishan (1979) 2 SCC 249 [LNIND 1978 SC
288] [LNIND 1978 SC 288] [LNIND 1978 SC 288], Commr of Sales Tax, Madhya Pradesh, Indore v Radhakrishan [1979] 2 SCR
33 [LNIND 1978 SC 288] [LNIND 1978 SC 288] [LNIND 1978 SC 288]; Accountant General v S Doraiswamy AIR 1981 SC 783
[LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452], Accountant General v S Doraiswamy (1981) 4 SCC 93
[LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452], Accountant General v S Doraiswamy [1981] 2 SCR 155
[LNIND 1980 SC 452] [LNIND 1980 SC 452] [LNIND 1980 SC 452] (broad power conferred on the Comptroller and
Auditor-General has been validated because he is a high ranking constitutional authority, and ought to know the needs of the
department best, and is expected to act without arbitrariness); see Organo Chemical Industries v Union of India AIR 1979 SC
1803 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288], Organo Chemical Industries v Union of India (1979) 4
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SCC 573 [LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288], Organo Chemical Industries v Union of India
Union of India (1987) SCC (Lab)400; S Partap Singh v State of Punjab AIR 1964 SC 72 [LNIND 1963 SC 211] [LNIND 1963
SC 211] [LNIND 1963 SC 211], S Partap Singh v State of Punjab AIR 1963 Punj 298; C S Rowjee v State of Andhra Pradesh
AIR 1964 SC 962 [LNIND 1964 SC 14] [LNIND 1964 SC 14] [LNIND 1964 SC 14], C S Rowjee v State of Andhra Pradesh
(1964) 2 Andh LT 48; see Raj Prakash Varshney v Additional District Magistrate, New Delhi AIR 1978 Del 17. As to 'malafide
exercise of discretionary powers' see [005.189].
11 Ie the Liberalised Pension Rules 1950 r 2(2).
12 Ie the Constitution of India arts 14 & 16. Senior Superintendent of Post Office v Izhar Hussain AIR 1989 SC 2262 [LNIND
13 As to need for safeguards see [005.011].
15 All India Services (Conditions of Service-Residuary Matters) Rules 1960 r 3.
17 Special Courts Act 1979 s 5(1).
18 State (Delhi Administration) v VC Shukla AIR 1980 SC 1382 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC
179], State (Delhi Administration) v VC Shukla (1980) 2 SCC 665 [LNIND 1980 SC 179] [LNIND 1980 SC 179] [LNIND 1980 SC
179], State (Delhi Administration) v VC Shukla (1980) Cr LJ 965. See also V C Shukla v The State AIR 1980 SC 962, V C
Shukla v The State [1980] 2 SCR 380, V C Shukla v The State (1980) 2 SCJ 211.
20 Employees Provident Fund Act 1952 s 14B. Organo Chemical Industries v Union of India AIR 1979 SC 1803 [LNIND 1979
SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288], Organo Chemical Industries v Union of India (1979) 4 SCC 573 [LNIND
1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288], Organo Chemical Industries v Union of India [1980] 1 SCR 61
[LNIND 1979 SC 288] [LNIND 1979 SC 288] [LNIND 1979 SC 288] (the Court took the view that the power under the
abovementioned section permits award of damages which has implications and limitations sufficient to serve as guidelines in
fixing the impostion: the commissioner cannot award anything more than, or unrelated to, damages, nor can he go beyond 100
per cent of the amount defaulted.The Supreme Court however upheld the provision in question because the legislation in
question was social in nature and beneficial to the labour).
21 Ie the Mysore Slum Areas(Improvement and Clearance) Act 1959 s 3, 9,and12(1). Government of Mysore v JV Bhat AIR
1975 SC 596 [LNIND 1974 SC 317] [LNIND 1974 SC 317] [LNIND 1974 SC 317], Government of Mysore v JV Bhat (1975) 1
22 See Mahboobur Rahman v Public Service Commission, West Bengal AIR 1972 Cal 348 [LNIND 1971 CAL 198] [LNIND
1971 CAL 198] [LNIND 1971 CAL 198]; Joint Registrar, Co operative Societies, Madras v PS Rajagopal Naidu AIR 1970 SC
23 Sheo Nandan Paswan v State of Bihar AIR 1987 SC 877.
24 Manager, Government Branch Press v D B Belliappa AIR 1979 SC 429 [LNIND 1978 SC 364] [LNIND 1978 SC 364]
[LNIND 1978 SC 364], Manager, Government Branch Press v D B Belliappa (1979) 1 SCC 477 [LNIND 1978 SC 364] [LNIND
1978 SC 364] [LNIND 1978 SC 364], Manager, Government Branch Press v D B Belliappa [1979] 2 SCR 458 [LNIND 1978 SC
364] [LNIND 1978 SC 364] [LNIND 1978 SC 364]; State of Gujarat v Krishna Cinema AIR 1971 SC 1650 [LNIND 1970 SC 358]
[LNIND 1970 SC 358] [LNIND 1970 SC 358], State of Gujarat v Krishna Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358]
[LNIND 1970 SC 358] [LNIND 1970 SC 358], State of Gujarat v Krishna Cinema (1971) 2 SCJ 25 [LNIND 1970 SC 358] [LNIND
1970 SC 358] [LNIND 1970 SC 358]; Rampur Distillery and Chemical Co Ltd v Company Law Board AIR 1970 SC 1789
[LNIND 1969 SC 307] [LNIND 1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law
Board [1970] 2 SCR 177 [LNIND 1969 SC 307] [LNIND 1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical
Co Ltd v Company Law Board (1970) 2 SCJ 89.
(the satisfaction contemplated by Companies Acts 326(2)(b) must be the result of an objective appraisal of the relevant
materials, since the ensuinge order may result in serious detriment to the company or the proposed managing agent).
25 Padfield v Minister of Agriculture, Fisherie and Food [1968] 1 All ER 694, Padfield v Minister of Agriculture, Fisherie and
Food 1968 AC 997. As to abuse of discretionary powers see [005.189] and following.
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26 See Baldev Raj Chadha v Union of India AIR 1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC
333], See Baldev Raj Chadha v Union of India [1981] 1 SCR 430 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC
333], See Baldev Raj Chadha v Union of India (1981) 1 SCJ 293.
27 Fundamental Rules governing the Central Civil Services r 56 (j). Baldev Raj Chadha v Union of India AIR 1981 SC 70
[LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333], Baldev Raj Chadha v Union of India [1981] 1 SCR 430
[LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333], Baldev Raj Chadha v Union of India (1981) 1 SCJ 293.
28 Ganga Saran & Sons v Income Tax Officer AIR 1981 SC 1363 [LNIND 1981 SC 251] [LNIND 1981 SC 251] [LNIND 1981
SC 251], Ganga Saran & Sons v Income Tax Officer (1981) 3 SCC 143 [LNIND 1981 SC 251] [LNIND 1981 SC 251] [LNIND
1981 SC 251], Ganga Saran & Sons v Income Tax Officer (1981) 130 ITR 1 [LNIND 1981 SC 251] [LNIND 1981 SC 251]
[LNIND 1981 SC 251]; Madhya Pradesh Industries Ltd v Income Tax Officer, Nagpur AIR 1970 SC 1011 [LNIND 1970 SC 209]
[LNIND 1970 SC 209] [LNIND 1970 SC 209], Madhya Pradesh Industries Ltd v Income Tax Officer, Nagpur 77 ITR 268
(similarly, when an administrator can take an action if 'in his opinion' certain circumstances exist; the 'opinion' of the officer
though subjective is not uncontrolled).

ADMINISTRATIVE LAW/14. DISCRETIONARY POWERS/(1) INTRODUCTION/C. ULTRA VIRES/[005.184]
Doctrine of ultra vires
[005.184] Doctrine of ultra vires An administrative authority must exercise its powers according to the
terms of the law. An action or decision going beyond what is authorised by law is ultra vires. The doctrine of
ultra vires is characterised by two aspects:
(1) Procedural ultra vires1

(2) Substantive ultra vires2
1 As to procedural ultra vires see [005.185].
2 As to substantive ultra vires see [005.186].

Procedural ultra vires
[005.185] Procedural ultra vires The legislature lays down procedures with a view that it will be observed
and not ignored. Procedural requirements laid down by a statute for exercise of a discretionary power may
be categorised as directory or mandatory by the courts on the basis of whether the defect in procedure is
trivial enough to be ignored or the defiance of procedure is so flagrant that it cannot be overlooked1.
Procedures protect individual interests and rights from being adversely affected by administrative action2. In
the absence of any prescribed guidelines to differentiate between directory and mandatory requirements, the
courts hold statutory requirements as mandatory in order to control the exercise of discretionary powers3.
Where non compliance of a procedural requirement vitiates the discretionary decision, the requirement is
considered as mandatory4. Where the registrar of a society was empowered, under certain circumstances, to
supersede the managing committee of the society after consulting the financing bank to which the society
was indebted5, non observance of the requirement of consultation vitiated any action taken thereof6. Hence,
a provision requiring the decision making authority to consult a designated body before taking a decision, is
regarded as mandatory7. When consultation with a specified body is predicated before taking a discretionary
decision, it envisages an effective and not a formal consultation8. Consequently, an order issued by the
government without considering the recommendations of a review committee, which was advisory in
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function, did not have a pre emptory effect, and hence could not be vitiated9.
Where the design of the statute is prevention of public mischief, and the enforcement of a particular provision
will tend to defeat that design, the provision must be held to be directory, so that proof of prejudice in addition
to non-compliance of the provision is necessary to invalidate the act complained of10.
A statutory provision requiring the reasons to be recorded by the concerned authority for an administrative
action proposed to be taken by it is regarded as mandatory and non compliance of the provision vitiates the
order11. Where the statute required the selection board to give reasons for not promoting an eligible
government officer prior to sending the case to the Union Public Service Commission for advice12, any
selections made by the board without giving reasons would be vitiated13. Reasons must be recorded before
taking action, and not after the action has been taken to ensure that public authorities do not function
arbitrarily14. Furthermore, communication of the abovementioned reasons to the concerned person is
rendered essential only under certain circumstances15. However, the administration is not obliged to record
reasons, in the absence of a statutory obligation to do so except as a part of natural justice if it is applicable
in the fact situation16.
The following other procedural requirements, inter alia, are mandatory:
(1) requirement for publication17.

(2) requirement for giving a hearing to the affected party before deciding18;
(3) requirement that a decision be arrived at within a prescribed period19;
(4) requirement to give notice before taking a decision20.
(5) requirement that the decision-making authority conducts an inquiry prior to taking a
discretionary decision21;
Failure by the authority passing an order, to follow the prescribed procedure, Can result in the order being
quashed by the courts22. In the absence of substantive safeguards, the courts, with a view to protect the
rights of the people, insist on observance of procedural safeguards. For instance, the courts, in cases of
preventive detention, insist that all procedural safeguards conferred on the detenu, by the Constitution or
under the preventive detention law, be observed by the Administration and any deviation therefrom, or
non-compliance thereof, may result in the detention order being quashed23. Furthermore, where the dual
obligation of consideration of the detenu's representation by the advisory board and independently by the
detaining authority is obligatory, any deviation from, or non-observance of, any of the safeguards will
invariably result in the order of preventive detention being quashed24. Furthermore, a directory procedural
requirement, under certain circumstances, may become necessary to be substantially complied with25.
1 London & Clydeside Estates Ltd v Aberdeen District Council [1979] 3 All ER 876, London & Clydeside Estates Ltd v
Aberdeen District Council [1980] 1 WLR 182. As to substantive ultra vires see [005.186].
2 See Pankaj Bhargava v Mohinder Nath AIR 1991 SC 1233 [LNIND 1990 SC 923] [LNIND 1990 SC 923] [LNIND 1990 SC
923], Pankaj Bhargava v Mohinder Nath (1991) 1 SCC 556 [LNIND 1990 SC 923] [LNIND 1990 SC 923] [LNIND 1990 SC 923],
Pankaj Bhargava v Mohinder Nath [1990] Supp 3 SCR 508.
Ujjam Bai v State of Uttar Pradesh AIR 1962 SC 1621 [LNIND 1962 SC 584] [LNIND 1962 SC 584] [LNIND 1962 SC 584],
Ujjam Bai v State of Uttar Pradesh [1963] 1 SCR 778 [LNIND 1961 SC 222] [LNIND 1961 SC 222] [LNIND 1961 SC 222];
Dalchand v Municipal Corporation AIR 1983 SC 303 [LNIND 1982 SC 105] [LNIND 1982 SC 105] [LNIND 1982 SC 105],
Dalchand v Municipal Corporation (1983) 1 SCJ 296 [LNIND 1982 SC 105] [LNIND 1982 SC 105] [LNIND 1982 SC 105],
Dalchand v Municipal Corporation (1983) Cr LJ 448.
(the courts must, therefore, formulate their own criteria for determining whether the procedural rules are to be regarded as
mandatory in which case disobedience will render void or voidable what has been done, or as directory in which case
disobedience will be treated as merely irregularity not affecting the validity of what has been done).
5 orissa Co-operative Societies Act 1963 s 32.

254
Page 63
6 Sarat Chandra Panda v State of Orissa AIR 1979 ori 143.
7 Municipal Corpn of Greater Bombay v New Standard Engineering Co Ltd AIR 1991 SC 1362 [LNIND 1990 SC 775] [LNIND
1990 SC 775] [LNIND 1990 SC 775], Municipal Corpn of Greater Bombay v New Standard Engineering Co Ltd (1991) 1 SCC
611 [LNIND 1990 SC 775] [LNIND 1990 SC 775] [LNIND 1990 SC 775], Municipal Corpn of Greater Bombay v New Standard
Engineering Co Ltd (1990) Supp 3 SCR 478; Naraindas Indurkhya v State of Madhya Pradesh AIR 1974 SC 1232 [LNIND
1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106], Naraindas Indurkhya v State of Madhya Pradesh (1974) 4 SCC 788
[LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106], Naraindas Indurkhya v State of Madhya Pradesh [1974] 3
SCR 624 [LNIND 1974 SC 106] [LNIND 1974 SC 106] [LNIND 1974 SC 106]; Narayan Sankaran Mooss v State of Kerala AIR
1974 SC 175 [LNIND 1973 SC 306] [LNIND 1973 SC 306] [LNIND 1973 SC 306], Narayan Sankaran Mooss v State of Kerala
(1974) 1 SCC 68 [LNIND 1973 SC 306] [LNIND 1973 SC 306] [LNIND 1973 SC 306], Narayan Sankaran Mooss v State of
Kerala [1974] 2 SCR 60 [LNIND 1973 SC 306] [LNIND 1973 SC 306] [LNIND 1973 SC 306].
8 Narayan Das Indurkhya v State of Madhya Pradesh 1972 SC 2086, Narayan Das Indurkhya v State of Madhya Pradesh
(1972) SCD 619 [LNIND 1972 SC 261] [LNIND 1972 SC 261] [LNIND 1972 SC 261], Narayan Das Indurkhya v State of Madhya
Pradesh (1972) Cr LJ 1323; Akhil Bharatiya Grahak Panchayat (Bombay Branch) v State of Maharashtra AIR 1985 Bom 14.
See State of Kerala v A Lakshmikutty AIR 1987 SC 331 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428],
State of Kerala v A Lakshmikutty (1986) 4 SCC 632 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428], State
of Kerala v A Lakshmikutty [1987] 1 SCR 136 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428]; Union of
India v Sankal Chand Himatlal Sheth AIR 1977 SC 2328 [LNIND 1977 SC 268] [LNIND 1977 SC 268] [LNIND 1977 SC 268],
Union of India v Sankal Chand Himatlal Sheth (1977) 4 SCC 193 [LNIND 1977 SC 268] [LNIND 1977 SC 268] [LNIND 1977 SC
268], Union of India v Sankal Chand Himatlal Sheth [1978] 1 SCR 423 [LNIND 1977 SC 268] [LNIND 1977 SC 268] [LNIND
1977 SC 268]; Harpal Singh Chauhan v State of Uttar Pradesh AIR 1993 SC 2436 [LNIND 1993 SC 487] [LNIND 1993 SC 487]
[LNIND 1993 SC 487], Harpal Singh Chauhan v State of Uttar Pradesh 1993 AIR SCW 2843, Harpal Singh Chauhan v State of
Uttar Pradesh (1993) 3 SCC 552 [LNIND 1993 SC 487] [LNIND 1993 SC 487] [LNIND 1993 SC 487].
9 See State of Uttar Pradesh v Manbodhan Lal Srivastava AIR 1957 SC 912 [LNIND 1957 SC 93] [LNIND 1957 SC 93] [LNIND
1957 SC 93], State of Uttar Pradesh v Manbodhan Lal Srivastava (1957) SCA 1022 [LNIND 1957 SC 93] [LNIND 1957 SC 93]
[LNIND 1957 SC 93], State of Uttar Pradesh v Manbodhan Lal Srivastava (1957) SCJ 150; see also State of Tamil Nadu v M N
Sundararajan AIR 1980 SC 2084 [LNIND 1980 SC 335] [LNIND 1980 SC 335] [LNIND 1980 SC 335].
10 Dalchand v Municipal Corporation AIR 1983 SC 303 [LNIND 1982 SC 105] [LNIND 1982 SC 105] [LNIND 1982 SC 105],
Dalchand v Municipal Corporation (1983) 1 SCJ 296 [LNIND 1982 SC 105] [LNIND 1982 SC 105] [LNIND 1982 SC 105],
Dalchand v Municipal Corporation (1983) Cr LJ 448.
11 Syed Hasan Rasul Numa v Union of India AIR 1991 SC 711 [LNIND 1990 SC 881] [LNIND 1990 SC 881] [LNIND 1990 SC
881], Syed Hasan Rasul Numa v Union of India (1991) 1 SCC 401 [LNIND 1990 SC 881] [LNIND 1990 SC 881] [LNIND 1990
SC 881], Syed Hasan Rasul Numa v Union of India (1990) 4 JT 463; Uma Charan v State of Madhya Pradesh AIR 1981 SC
1915 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352], Uma Charan v State of Madhya Pradesh (1981) 4
SCC 102 [LNIND 1981 SC 352] [LNIND 1981 SC 352] [LNIND 1981 SC 352], Uma Charan v State of Madhya Pradesh (1981)
UJ 736 (SC); State of Uttar Pradesh v Lalai Singh Yadav AIR 1977 SC 202 [LNIND 1976 SC 333] [LNIND 1976 SC 333]
[LNIND 1976 SC 333], State of Uttar Pradesh v Lalai Singh Yadav (1976) 4 SCC 213 [LNIND 1976 SC 333] [LNIND 1976 SC
333] [LNIND 1976 SC 333], State of Uttar Pradesh v Lalai Singh Yadav [1977] 1 SCR 616 [LNIND 1976 SC 333] [LNIND 1976
SC 333] [LNIND 1976 SC 333].
(a legal provision required that reasons be recorded before superseding a member of the police force; the court quashed
suppression of a member of the police force as no reasons were recorded for doing so).
12 Indian Forests Service (Initial Recruitment) Regulations 1966 r 5(2)(b).
HP Chothia (1978) Lab IC 1093;
14 Rajamallaiah v Anil Kishore AIR 1980 SC 1502 [LNIND 1980 SC 210] [LNIND 1980 SC 210] [LNIND 1980 SC 210],
Rajamallaiah v Anil Kishore [1980] 3 SCR 794 [LNIND 1980 SC 210] [LNIND 1980 SC 210] [LNIND 1980 SC 210],
Rajamallaiah v Anil Kishore (1980) 2 SCJ 170; CB Gautam v Union of India 1993 1 SCC 78 [LNIND 1992 SC 833] [LNIND
1992 SC 833] [LNIND 1992 SC 833], CB Gautam v Union of India [1993] 199 ITR 530 [LNIND 1992 SC 833] [LNIND 1992 SC
833] [LNIND 1992 SC 833]; Parashram Thakur v Ram Chand AIR 1982 SC 872 [LNIND 1982 SC 48] [LNIND 1982 SC 48]
[LNIND 1982 SC 48], Parashram Thakur v Ram Chand (1982) 1 SCC 627 [LNIND 1982 SC 48] [LNIND 1982 SC 48] [LNIND
1982 SC 48], Parashram Thakur v Ram Chand (1982) 2 SCJ 151 [LNIND 1982 SC 48] [LNIND 1982 SC 48] [LNIND 1982 SC
48]; Ajantha Industries v Central Board of Direct Taxes AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND
1975 SC 831], Ajantha Industries v Central Board of Direct Taxes 1976 1 SCC 1001 [LNIND 1975 SC 831] [LNIND 1975 SC
831] [LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes [1976] 2 SCR 884 [LNIND 1975 SC 831] [LNIND
1975 SC 831] [LNIND 1975 SC 831]; see procedural safeguards [005.181].
15 Ajantha Industries v Central Board of Direct Taxes AIR 1976 SC 437 [LNIND 1975 SC 831] [LNIND 1975 SC 831] [LNIND
1975 SC 831], Ajantha Industries v Central Board of Direct Taxes 1976 1 SCC 1001 [LNIND 1975 SC 831] [LNIND 1975 SC
831] [LNIND 1975 SC 831], Ajantha Industries v Central Board of Direct Taxes [1976] 2 SCR 884 [LNIND 1975 SC 831] [LNIND
1975 SC 831] [LNIND 1975 SC 831]; Satyavir Singh v Union of India AIR 1986 SC 555 [LNIND 1985 SC 283] [LNIND 1985 SC
283] [LNIND 1985 SC 283], Satyavir Singh v Union of India (1985) 4 SCC 252 [LNIND 1985 SC 283] [LNIND 1985 SC 283]
255
Page 64
[LNIND 1985 SC 283], Satyavir Singh v Union of India (1986) Lab IC 1.
16 See Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena AIR 1975 SC 2057 [LNIND 1975 SC 239] [LNIND 1975 SC
239] [LNIND 1975 SC 239], Mahabir Jute Mills Ltd, Gorakhpur v Shibban Lal Saxena (1975) 2 SCC 818 [LNIND 1975 SC 239]
17 State of Madhya Pradesh v Ram Raghubir Prasad Agarwal AIR 1979 SC 888 [LNIND 1979 SC 102] [LNIND 1979 SC 102]
[LNIND 1979 SC 102]; Syed Hasan Rasul Numa v Union of India AIR 1991 SC 711 [LNIND 1990 SC 881] [LNIND 1990 SC
881] [LNIND 1990 SC 881], Syed Hasan Rasul Numa v Union of India (1991) 1 SCC 401 [LNIND 1990 SC 881] [LNIND 1990
SC 881] [LNIND 1990 SC 881], Syed Hasan Rasul Numa v Union of India (1990) 4 JT 463.
18 Chintapalli Agency Taluk Arrack Sales Co-op Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh AIR
1977 SC 2313 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275], Chintapalli Agency Taluk Arrack Sales
Co-op Society Ltd v Secretary (Food and Agriculture) Govt of Andhra Pradesh (1977) 4 SCC 337 [LNIND 1977 SC 275] [LNIND
1977 SC 275] [LNIND 1977 SC 275], Chintapalli Agency Taluk Arrack Sales Co-op Society Ltd v Secretary (Food and
Agriculture) Govt of Andhra Pradesh [1978] 1 SCR 563 [LNIND 1977 SC 275] [LNIND 1977 SC 275] [LNIND 1977 SC 275];
Shri Mandir Sita Ramji v Governor of Delhi AIR 1974 SC 1868 [LNIND 1974 SC 209] [LNIND 1974 SC 209] [LNIND 1974 SC
209]; Akhil Bharatiya Grahak Panchayat (Bombay Branch) v State of Maharashtra AIR 1985 Bom 14.
19
Prabhakarlal Mohanlal Kalwar v Dy Comr, Belgaum AIR 1981 Kant 69 [LNIND 1980 KANT 273] [LNIND 1980 KANT 273]
[LNIND 1980 KANT 273], Prabhakarlal Mohanlal Kalwar v Dy Comr, Belgaum (1981) 1 Kant LC 21, Prabhakarlal Mohanlal
Kalwar v Dy Comr, Belgaum (1981) 1 Kant LJ 199; Laxmi Bus Service, Raikot v Rstate Transport, Appellate Tribunal, Punjab
AIR 1984 P & H 374, Laxmi Bus Service, Raikot v Rstate Transport, Appellate Tribunal, Punjab (1984) ILR 2 P & H 490; See
Chuhroo Ram v State AIR 1984 HP 61 [LNIND 1983 HP 3] [LNIND 1983 HP 3] [LNIND 1983 HP 3], Chuhroo Ram v State
(1983) Sim LC 325.
(if the mode of making application is not prescribed, sending of an application by post within the prescribed time-limit is valid,
and the application has to be considered even though the same has been actually received after the expiry of the stipulated
time-limit).
20 Sambu Nath Ghosh v State of West Bengal AIR 1991 Cal 19 [LNIND 1990 CAL 211] [LNIND 1990 CAL 211] [LNIND 1990
CAL 211]; see Indian Nut Products v Union of India 1994 4 SCC 269 [LNIND 1994 SC 518] [LNIND 1994 SC 518] [LNIND 1994
SC 518].
21 Kapurchand Shrimal v Comr of Income Tax Andhra Pradesh AIR 1981 SC 1965 [LNIND 1981 SC 365] [LNIND 1981 SC
365] [LNIND 1981 SC 365], Kapurchand Shrimal v Comr of Income Tax Andhra Pradesh (1981) 4 SCC 317 [LNIND 1981 SC
365] [LNIND 1981 SC 365] [LNIND 1981 SC 365], Kapurchand Shrimal v Comr of Income Tax Andhra Pradesh (1981) Tax LR
1468.
22 See G M Shah v State of Jammuand Kashmir AIR 1980 SC 494 [LNIND 1979 SC 433] [LNIND 1979 SC 433] [LNIND 1979
SC 433], G M Shah v State of Jammuand Kashmir (1980) 1 SCC 132 [LNIND 1979 SC 433] [LNIND 1979 SC 433] [LNIND
1979 SC 433], G M Shah v State of Jammuand Kashmir [1980] 1 SCR 1104 [LNIND 1979 SC 433] [LNIND 1979 SC 433]
[LNIND 1979 SC 433].
23 Narendra Purshotam Umrao v BB Gujral AIR 1979 SC 420 [LNIND 1978 SC 332] [LNIND 1978 SC 332] [LNIND 1978 SC
332], Narendra Purshotam Umrao v BB Gujral (1979) 2 SCC 637 [LNIND 1978 SC 332] [LNIND 1978 SC 332] [LNIND 1978 SC
332], Narendra Purshotam Umrao v BB Gujral [1979] 2 SCR 315 [LNIND 1978 SC 332] [LNIND 1978 SC 332] [LNIND 1978 SC
332]; State of Punjab v Sukhpal Singh AIR 1990 SC 231 [LNIND 1989 SC 498] [LNIND 1989 SC 498] [LNIND 1989 SC 498],
State of Punjab v Sukhpal Singh (1990) 1 SCC 35 [LNIND 1989 SC 498] [LNIND 1989 SC 498] [LNIND 1989 SC 498], State of
Punjab v Sukhpal Singh [1989] Supp 1 SCR 420. Hem Lall Bhandari v State of Sikkim AIR 1987 SC 762 [LNIND 1987 SC 103]
[LNIND 1987 SC 103] [LNIND 1987 SC 103], Hem Lall Bhandari v State of Sikkim (1987) 2 SCC 9 [LNIND 1987 SC 103]
[LNIND 1987 SC 103] [LNIND 1987 SC 103], Hem Lall Bhandari v State of Sikkim (1987) 2 SCJ 36.
24 Gracy v State of Kerala AIR 1991 SC 1090 [LNIND 1991 SC 90] [LNIND 1991 SC 90] [LNIND 1991 SC 90], Gracy v State of
Kerala AIR 1991 SCW 559, Gracy v State of Kerala (1991) 2 SCC 1 [LNIND 1991 SC 90] [LNIND 1991 SC 90] [LNIND 1991 SC
90]; Vimal Chand Jawantraj Jain v Pradhan AIR 1979 SC 1501 [LNIND 1979 SC 280] [LNIND 1979 SC 280] [LNIND 1979 SC
280], Vimal Chand Jawantraj Jain v Pradhan (1979) 4 SCC 401 [LNIND 1979 SC 280] [LNIND 1979 SC 280] [LNIND 1979 SC
280], Vimal Chand Jawantraj Jain v Pradhan (1979) Cr LJ 1131; See also KM Abdulla Kunhi and BL Abdul Khader v Union of
India AIR 1991 SC 574 [LNIND 1991 SC 42] [LNIND 1991 SC 42] [LNIND 1991 SC 42], KM Abdulla Kunhi and BL Abdul
Khader v Union of India (1991) 1 SCC 476 [LNIND 1991 SC 42] [LNIND 1991 SC 42] [LNIND 1991 SC 42], KM Abdulla Kunhi
and BL Abdul Khader v Union of India [1991] 1 SCR 102 [LNIND 1991 SC 42] [LNIND 1991 SC 42] [LNIND 1991 SC 42].
25 See State of Haryana v Jage Ram AIR 1983 SC 1207 [LNIND 1983 SC 247] [LNIND 1983 SC 247] [LNIND 1983 SC 247],
State of Haryana v Jage Ram (1983) 4 SCC 556 [LNIND 1983 SC 247] [LNIND 1983 SC 247] [LNIND 1983 SC 247], State of
Haryana v Jage Ram (1983) UJ (SC) 952.
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Substantive ultra vires
[005.186] Substantive ultra vires According to the principle of substantive ultra vires the authority
exercising discretionary power must act according to law, confining itself within the ambit and scope of, and
not exceed the powers conferred on it by law and if the authority steps out of the limits set by the controlling
statute, then the act is invalid1. Where, under a statutory provision, an employee could not be dismissed by
an authority lower in rank than the appointing authority, dismissal of an employee by an authority lower than
the appointing authority is invalid2. Where the legislature provides for the creation of an independent
authority, free from political and other influences in its day to day functioning, for the purpose of granting
permission to start private medical and dental colleges, granting the permission to start a college by
superseding the enactment is invalid3. When a statutory corporation dismisses an employee for misconduct
which is not a misconduct under the regulations framed by the corporation, it is ultra vires the regulations.
The corporation has neither the authority nor the jurisdiction to impose a penalty for the alleged misconduct4.
The courts must ensure that no authority exceeds its powers or acts contrary to law5. Substantive ultra vires
means that the decision making authority lacks substantive power under the empowering statute to make the
decision or take the action in question6.
The doctrine of ultra vires is applicable when discretion is subjected to substantive standards or restrictions,
or when it can be exercised on fulfilment of a condition precedent. Non-conformity with the restrictions may
result in the action of the Administration being declared ultra vires7. The task of interpreting the statute and
ensuring the compliance by the administration vests with the court and is illustrated by the following cases.
Where the price payable to a sugar manufacturer for the sugar procured by the government is to be
calculated by the government after considering certain factors8, and the government fixes the price by
overlooking the abovementioned requirement, the price fixed will be invalid9. When a statute provides for the
necessity of previous sanction of the commissioner for the transfer of property of a public trust, any transfer
without such sanction is invalid and a sanction obtained ex post facto is not recognised by law10. Similarly,
under Commissions of Inquiry Act 1952, the government may appoint a commission of inquiry for the
purpose of inquiring into any definite matter of public importance11. However, when a commission is
appointed to inquire into matters absolutely vague and general in nature, the condition precedent under the
Act is not fulfilled and the commission can be prohibited from continuing the inquiry12.
Where a university ordinance prescribes, inter alia, first or high second class Master's Degree as the
minimum qualification for eligibility for the post of a reader, appointment of a person as a reader who does
not hold the prescribed qualifications will be quashed13.
Industries (Disputes & Regulation) Act 1951 enables the government to take over the management under
certain circumstances of an industrial undertaking owned by a company14. Hence, the government is not
entitled to take over the management of an undertaking owned by partnership15.
Under the Pension Rules, the President has the power to withhold the entire or a part of the pension of a
retiring civil employee provided that a finding is recorded either in a departmental enquiry or a judicial
proceeding that the pensioner committed grave misconduct or negligence in the discharge of his duty while
in office16. Where misconduct in the discharge of duties is not established, an order withholding the pension
is held to be illegal and in excess of jurisdiction as the condition precedent, grave misconduct, is not
proved17.
Powers need not always be conferred expressly by a statute. For instance, power to appoint includes power
to dismiss. Power to grant permission includes power to cancel the same in certain circumstances18.
Similarly, a body authorised to conduct an examination has an implied power to cancel the examination in a
case where the candidates use unfair means at the examination. It is the unwritten rule of any examination
that it must be conducted fairly which would include the concept that the examinees must take the
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examination fairly. Adoption of unfair means either individually or en masse is the antithesis of fairness of the
examination and in such a case, the power to cancel the examination is inherent in the examination body19.
Reason to believe or a condition precedent must pre exist the action taken by the concerned authority20. The
concerned authority, must have reasonable belief before taking action and upon the basis of the material in
existence that the stipulated situation exists21. Hence the 'reason to believe' is a 'condition precedent' to
vesting any jurisdiction in the authorised officer to enter any premises and conduct a search and in the
absence of such reasonable belief at the beginning, the entry and search will be vitiated although
subsequently the officer discovers material to show contravention of the Act, because subsequent discovery
of any material cannot be equated with the initial reasonable belief22.
Furthermore, the legislature provides an authority with limited discretion to impose conditions which have a
nexus with the statutory purpose of an Act23.
SC 106] [LNIND 1974 SC 106]; Marathwada University v Seshrao Balwant Rao Chavan AIR 1989 SC 1582 [LNIND 1989 SC
238] [LNIND 1989 SC 238] [LNIND 1989 SC 238], Marathwada University v Seshrao Balwant Rao Chavan (1989) 3 SCC 132
[LNIND 1989 SC 238] [LNIND 1989 SC 238] [LNIND 1989 SC 238], Marathwada University v Seshrao Balwant Rao Chavan
(1989) 2 JT 276 (the power is to be exercised by the very authority in whom it is vested by law; it will be invalid if power is
exercised by an authority other than one in whom it is vested).
2 See State Bank of India v S Vijaya Kumar AIR 1991 SC 79 [LNIND 1990 SC 351] [LNIND 1990 SC 351] [LNIND 1990 SC
351], State Bank of India v S Vijaya Kumar (1990) 4 SCC 481 [LNIND 1990 SC 351] [LNIND 1990 SC 351] [LNIND 1990 SC
351], State Bank of India v S Vijaya Kumar (1990) 3 JT 308.
3 Nedurimilli Janardhana Reddy v Progressive Democratic Students' Union (1994) 6 SCC 506.
4 A L Kalra v Project and Equipment Corpn of India Ltd AIR 1984 SC 1361 [LNIND 1984 SC 136] [LNIND 1984 SC 136]
[LNIND 1984 SC 136].
5 As to excessive delegation see [005.183].
6 Laker Airways Ltd v Department of Trade [1977] QB 643, Laker Airways Ltd v Department of Trade [1977] 2 All ER 182.
7 See AC Jose v Sivan Pillai AIR 1984 SC 921 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66], AC Jose v
Sivan Pillai (1984) 2 SCC 656 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66], AC Jose v Sivan Pillai (1984)
Ker LT 510 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66]; Vijay Narain Singh v State of Bihar AIR 1984 SC
1334 [LNIND 1984 SC 110] [LNIND 1984 SC 110] [LNIND 1984 SC 110], Vijay Narain Singh v State of Bihar (1984) 3 SCC 14
[LNIND 1984 SC 110] [LNIND 1984 SC 110] [LNIND 1984 SC 110], Vijay Narain Singh v State of Bihar (1984) Cr LJ 909. See
notes 8-23 below.
8 Ie under the Essential Commodities Act 1955 ss 3(2)(f)and3(3)(C).
9 Bhopal Sugar Industries Ltd, Sehore v Union of India AIR 1979 MP 163; Shervani Sugar Syndicate Ltd, Allahabad v Union of
India AIR 1979 All 394.
10 Chandrabhan Chunnilal Gour v Shrawan Kumar Khunnolal Gour AIR 1980 Bom 48 [LNIND 1979 BOM 107] [LNIND 1979
BOM 107] [LNIND 1979 BOM 107], Chandrabhan Chunnilal Gour v Shrawan Kumar Khunnolal Gour (1980) Mah LJ 690
[LNIND 1979 BOM 107] [LNIND 1979 BOM 107] [LNIND 1979 BOM 107].
11 Ie the Commissions of Inquiry Act 1952 s 3.
12 Orient Paper Mills v Union of India AIR 1979 Cal 114 [LNIND 1978 CAL 457] [LNIND 1978 CAL 457] [LNIND 1978 CAL
457]; see also State of Karnataka v Union of India AIR 1978 SC 68 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977
SC 312], State of Karnataka v Union of India (1977) 4 SCC 608 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC
312], State of Karnataka v Union of India [1978] 2 SCR 1 [LNIND 1977 SC 312] [LNIND 1977 SC 312] [LNIND 1977 SC 312].
13 See J P Kulshrestha v Chancellor, Allahabad University AIR 1980 SC 2141 [LNIND 1980 SC 221] [LNIND 1980 SC 221]
[LNIND 1980 SC 221], J P Kulshrestha v Chancellor, Allahabad University (1980) 3 SCC 418 [LNIND 1980 SC 221] [LNIND
1980 SC 221] [LNIND 1980 SC 221], J P Kulshrestha v Chancellor, Allahabad University (1980) Lab IC 692.
14 Industries (Development & Regulation) Act 1951 s 18AA(1)(b).
15 Vasantrao Dattaji Dhanwatey v Union of India AIR 1984 Bom 181, Vasantrao Dattaji Dhanwatey v Union of India (1983) ILR
258
Page 67
Bom 1222, Vasantrao Dattaji Dhanwatey v Union of India (1983) 85 Bom LR 56: see also [005.194].
16 Ie the Civil Services Pension Rules 1972 r 9.
17 D V Kapoor v Union of India AIR 1990 SC 1923 [LNIND 1990 SC 408] [LNIND 1990 SC 408] [LNIND 1990 SC 408], D V
Kapoor v Union of India (1990) 4 SCC 314 [LNIND 1990 SC 408] [LNIND 1990 SC 408] [LNIND 1990 SC 408], D V Kapoor v
18 . Bool Chand v Chancellor, Kurukshetra University AIR 1968 SC 292 [LNIND 1967 SC 254] [LNIND 1967 SC 254] [LNIND
1967 SC 254], Bool Chand v Chancellor, Kurukshetra University [1968] 1 SCR 434 [LNIND 1967 SC 254] [LNIND 1967 SC 254]
[LNIND 1967 SC 254], Bool Chand v Chancellor, Kurukshetra University (1968) Lab IC 232 [LNIND 1967 SC 254] [LNIND 1967
SC 254] [LNIND 1967 SC 254].
19 Raja Mohapatra v Board of Secondary Education AIR 1988 Ori 65 [LNIND 1987 ORI 34] [LNIND 1987 ORI 34] [LNIND 1987
ORI 34].
20 Gangasaran & Sons v Income-tax Officer AIR 1981 SC 1363 [LNIND 1981 SC 251] [LNIND 1981 SC 251] [LNIND 1981 SC
251], Gangasaran & Sons v Income-tax Officer (1981) 3 SCC 143 [LNIND 1981 SC 251] [LNIND 1981 SC 251] [LNIND 1981
SC 251], Gangasaran & Sons v Income-tax Officer (1981) UJ (SC) 533; see Sheonath Singh v The Appellate Asst Comr of
Income Tax Calcutta AIR 1971 SC 2451 [LNIND 1971 SC 371] [LNIND 1971 SC 371] [LNIND 1971 SC 371], Sheonath Singh v
The Appellate Asst Comr of Income Tax Calcutta (1971) Tax LR 1747, Sheonath Singh v The Appellate Asst Comr of Income
Tax Calcutta (1971) UJ 802(SC).
21 Hindustan Aluminium Corpn Ltd v Controller of Aluminium AIR 1976 Del 225 [LNIND 1975 DEL 196] [LNIND 1975 DEL 196]
[LNIND 1975 DEL 196], Hindustan Aluminium Corpn Ltd v Controller of Aluminium (1976) ILR 1 [LNIND 1975 RAJ 99] [LNIND
1975 RAJ 99] [LNIND 1975 RAJ 99] Del 336; State of Gujarat v Jamnadas G Pabri AIR 1974 SC 2233 [LNIND 1974 SC 292]
[LNIND 1974 SC 292] [LNIND 1974 SC 292], State of Gujarat v Jamnadas G Pabri (1975) 1 SCC 138 [LNIND 1974 SC 292]
[LNIND 1974 SC 292] [LNIND 1974 SC 292], State of Gujarat v Jamnadas G Pabri [1975] 2 SCR 330 [LNIND 1974 SC 292]
[LNIND 1974 SC 292] [LNIND 1974 SC 292].
22 P Ramachandra Chetty v Secretary, Ministry of Food, Govt of India AIR 1979 AP 28 [LNIND 1978 AP 147] [LNIND 1978 AP
147] [LNIND 1978 AP 147], P Ramachandra Chetty v Secretary, Ministry of Food, Govt of India (1978) 2 Andh LT 212 [LNIND
1978 AP 147] [LNIND 1978 AP 147] [LNIND 1978 AP 147]; see also Nandlal Khodidas Barot v Bar Council of Gujarat AIR 1981
SC 477, Nandlal Khodidas Barot v Bar Council of Gujarat (1981) SCC (Cri) 255, Nandlal Khodidas Barot v Bar Council of
Gujarat (1980) SCC (Supp) 318.
23 Motor Vehicles Acts 51(2)(x); Subhash Chandra v State of Uttar Pradesh AIR 1980 SC 800 [LNIND 1980 SC 64] [LNIND
1980 SC 64] [LNIND 1980 SC 64], Subhash Chandra v State of Uttar Pradesh (1980) 2 SCC 324 [LNIND 1980 SC 64] [LNIND
1980 SC 64] [LNIND 1980 SC 64], Subhash Chandra v State of Uttar Pradesh (1980) 2 SCJ 117.

Extended ultra vires
[005.187] Extended ultra vires Grounds on which a discretionary decision may be invalidated by a court fall
into the following two major categories:
(1) Abuse of discretionary power1.

(2) Failure to exercise discretion2.
Discretionary power is abused by an authority when it acts mala fide or in bad faith3, or used for an improper
purpose4, or takes into account irrelevant considerations, or does not apply relevant considerations in
reaching the decision5, or if the decision is unreasonable6, or it is colourable exercise of power7. Where the
concerned authority acts under dictation, or acts mechanically without applying its mind, or fetters its own
discretion through self-imposed policy, or abdicates its functions in favour of some other authority, it is
regarded as failure by the authority to exercise discretion8.
The court is justified in interfering where the action or decision is perverse or is such that no reasonable body
of persons, properly informed could come to or has been arrived at by the authority misdirecting itself by
adopting a wrong approach or has been influenced by irrelevant or extraneous matter9. The line of
demarcation between the grounds of invalidity overlaps to some extent and is not distinct and exclusive10.
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Page 68
Moreover, although courts use multiple grounds to invalidate an administrative action, presence of only one
of the abovementioned grounds is sufficient to invalidate an administrative action11.
Furthermore, a three fold classification of the grounds on which a discretionary decision is subject to control
by judicial review, mentioned below, is adopted by the courts by providing scope for the addition of further
grounds12:
(i) Illegality, meaning that the decision maker has made an error of law and hence it represents
infidelity of an official action to a statutory purpose;
(ii) Irrationality, meaning unreasonableness.
(iii) Procedural Impropriety which includes failure to observe the procedural rules13.
1 As to abuse of discretionary power see [005.189] and following.
2 As to failure to exercise discretion see [005.198] and following.
3 As to mala fide or bad faith see [005.189].
4 As to improper purpose see [005.191].
6 As to unreasonableness see [005.196].
7 As to colourable exercise of discretionary powers see [005.197].
8 Comr of Income Tax, Bombay v Mahindra and Mahindra Ltd AIR 1984 SC 1182 [LNIND 1983 SC 232] [LNIND 1983 SC 232]
[LNIND 1983 SC 232], Comr of Income Tax, Bombay v Mahindra and Mahindra Ltd (1983) 4 SCC 392 [LNIND 1983 SC 232]
[LNIND 1983 SC 232] [LNIND 1983 SC 232], Comr of Income Tax, Bombay v Mahindra and Mahindra Ltd [1983] 3 SCR 773
[LNIND 1983 SC 232] [LNIND 1983 SC 232] [LNIND 1983 SC 232]. As to failure to exercise discretion see [005.198] and
following.
9 Sitaram Sugar Co Ltd v Union of India AIR 1990 SC 1277 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC
152], Sitaram Sugar Co Ltd v Union of India (1990) 3 SCC 223 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC
152], Sitaram Sugar Co Ltd v Union of India [1990] 1 SCR 909 [LNIND 1990 SC 152] [LNIND 1990 SC 152] [LNIND 1990 SC
152]; see Maneka Gandhi v Union of India AIR 1978 SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25],
Gandhi v Union of India [1978] 2 SCR 621 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25].
10 Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, Associated Provincial Picture Houses Ltd
v Wednesbury Corpn [1947] 2 All ER 680 CA,; see also Treves Administrative Discretionand Judicial Control 10 Mod LR 276
(1946).
11 Collector, Allahabad v Raja Ram Jaiswal AIR 1985 SC 1622 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC
155], Collector, Allahabad v Raja Ram Jaiswal (1985) 3 SCC 1 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC
155], Collector, Allahabad v Raja Ram Jaiswal [1985] 3 SCR 995 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC
155]; see also Rampur Distillery and Chemical Co Ltd v Company Law Board AIR 1970 SC 1789 [LNIND 1969 SC 307] [LNIND
1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law Board [1970] 2 SCR 177 [LNIND
1969 SC 307] [LNIND 1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law Board
(1970) 2 SCJ 89: see [005.191].
(1994) 6 SCC 651 [LNIND 1994 SC 665] [LNIND 1994 SC 665]; Council of Civil Service Unions v Minister for the Civil Service
[1985] AC 374 at 410, Council of Civil Service Unions v Minister for the Civil Service [1984] 3 All ER 935.
13 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 at 410, Council of Civil Service Unions v
Minister for the Civil Service [1984] 3 All ER 935. As to procedural ultra vires [005.185].

ADMINISTRATIVE LAW/14. DISCRETIONARY POWERS/(1) INTRODUCTION/D. PROBATIVE
POWERS/[005.188] Non-interference of courts merits of a discretionary decision
260
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[005.188] Non-interference of courts merits of a discretionary decision Courts do not probe into the
merits of a discretionary decision1 as to how the impugned decision is arrived at and whether there is any
flaw in the decision making process. A formal reason for this restrictive judicial attitude of non-intervention
may be that the Supreme Court and the high courts review discretionary decisions in their writ jurisdiction in
a supervisory capacity2, rather than in an appellate capacity. Judicial review is not regarded as an appeal
from a decision but as a review of the manner in which the decision was made3. The law conferring
discretion on an authority seldom provides for an appeal from the authority's decisions to the court, and
hence, recourse is taken to the writ system provided under the Constitution4. The legislature empowers the
concerned authority to decide a matter and the court cannot interfere or substitute a decision taken by a
constituted authority simply because the decision sought to be substituted is a better one5.
Where a statute empowers the government to acquire land for a public purpose, the court will decide
whether the purpose for which the land is being acquired is a public purpose6. Moreover, issues like, inter
alia, the need to acquire land and the location of the land need to be addressed by the designated authority
and not the courts7. Similarly, no court can interfere with the mode in which a municipal corporation
exercises the statutory power conferred on it8. Furthermore, judicial reluctance to interfere arises from a
feeling that the judges ought not to interfere unduly with the decisions of the expert administrators9. The
judicial review of the merits of administrative decisions would be inconsistent with the doctrine of Separation
of Powers between the Executive and the Judiciary10.
Illustrations of the judicial policy of non-intervention with the merits of exercise of administrative discretion
are11:
Under the Industrial Disputes Act 1947, the government can, where it is of the opinion that any industrial
dispute exists or is apprehended, refer an industrial dispute for adjudication by an industrial tribunal12. The
abovementioned power is in exercise of its administrative discretion and the factual existence of the dispute
and the expediency of making a reference in the circumstances of a particular case are matters for the
government to decide13. Furthermore, where the government records the reasons for refusing to refer an
industrial dispute to the industrial tribunal14, the court will neither examine the propriety, correctness,
adequacy, or satisfactory character of the above reasons nor sit in appeal over the decision of the
government15. Similarly where the high court is of the opinion that the impugned order of the government
suffers from any legal infirmity, the government can be asked to reconsider the order, but cannot be
compelled to exercise its discretion in a particular manner16.
An order of preventive detention is a subjective decision of the detaining authority, based on the cumulative
effect of different actions, and such satisfaction is not open to be tested by a court by applying objective
standards17. The veracity of the allegations made against a detenu will be examined by the advisory board
and not by the court18. Thus, the courts do not question the merits of a preventive detention order19.
However, the question whether a preventive detention order has been made in strict compliance with the
law, and that it is not vitiated by the exercise of excessive delegation, will be decided by the court20.
The direction of the syndicate of a university as to a re examination in view of suspected leakage of

questions is not open to judicial review since it is not the function of the court to substitute their discretion for
that of the persons to whose judgment the matter in question is entrusted by law21.
Hence, in the absence of a vitiating element in the process of making a discretionary decision, the decision is
not reviewable on merits by the courts22.
Where exercise of subjective power is dependent on the existence of an objective fact the court may insist
that the existence of the fact be established objectively23. The state government may declare not to hold
elections if it is satisfied that a situation exists by reason of disturbances in any part of the state whereby it is
not possible or expedient to hold elections for the reconstitution of a panchayat on the expiry of its term24.
However, the state government must fulfil the following two requisites to make the abovementioned
declaration: (1) existence of a situation by reason of disturbances in a part of the state which is an objective
fact and (2) satisfaction of the government relating to the situation that the holding of panchayat elections
was not possible or expedient which is a subjective matter25. The court can inquire into whether the condition
261
Page 70
precedent, which is an objective fact to the exercise of this power, exists26.
Where an authority is found not to have acted in accordance with law, the court can only quash the decision
in question and direct the authority concerned to exercise the discretion vested in it, but cannot direct the
authority to act in a particular way27.
Where the Parliament empowers the central government to bring into force different provisions of the Act on
different dates, the court can only direct the government to consider the issue of bringing into force any
particular provision28.
1 As to nature of discretionary powers see [005.007].
2 As to jurisdiction of Supreme Court and high court see [005.242] and [005.222].
3 Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141 at 154, Chief Constable of the North Wales Police v
Evans [1982] 1 WLR 1155 at 1173 (judicial review is not an appeal from a decision, but a review of the manner in which the
decision was made,' or' judicial review is concerned, not with the decision, but with the decisionmaking process).
4 Ie under the Constitution of India arts 32 and 226. As to writ jurisdiction see. [005.222] and following.
5 Dwarkadas Marfatia and Sons v Board of Trustees of the Port of Bombay AIR 1989 SC 1642 [LNIND 1989 SC 261] [LNIND
1989 SC 261] [LNIND 1989 SC 261].
6 RL Arora v State of Uttar Pradesh AIR 1962 SC 764 [LNIND 1961 SC 392] [LNIND 1961 SC 392] [LNIND 1961 SC 392], RL
Arora v State of Uttar Pradesh (1962) ILR 2 All 181, RL Arora v State of Uttar Pradesh (1962) 1 SCA 182; Arnold Rodricks v
State of Maharashtra AIR 1966 SC 1788 [LNIND 1966 SC 83] [LNIND 1966 SC 83] [LNIND 1966 SC 83]; See R K Agarwalla v
State of West Bengal AIR 1965 SC 995 [LNIND 1964 SC 641] [LNIND 1964 SC 641] [LNIND 1964 SC 641], R K Agarwalla v
State of West Bengal (1965) 1 SCA 606, R K Agarwalla v State of West Bengal (1965) 2 SCWR 33; Valjibhai Muljibhai Soneji v
State of Bombay AIR 1963 SC 1890 [LNIND 1963 SC 407] [LNIND 1963 SC 407] [LNIND 1963 SC 407].
7 Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Council of Civil Service Unions v Minister for
the Civil Service [1984] 3 All ER 935.
8 See Westminster Corpn v London and North Western Rly Co [1905] AC 426.
152].
10 Asif Hameed v State of Jammu and Kashmir AIR 1989 SC 1899 [LNIND 1989 SC 303] [LNIND 1989 SC 303] [LNIND 1989
SC 303], Asif Hameed v State of Jammu and Kashmir (1989) 2 JT 548 (while exercising power of judicial review of
administrative action, the court is not an appellate authority; the Constitution does not permit the court to direct or advise the
executive in matters of policy or to sermonize qua any matter which under the Constitution lies within the sphere of legislature
or executive, provided these authorities do not transgress their constitutional limits or statutory powers).
11 See notes 12-23.
12 Ie the Industrial Disputes Act 1947 s 10.
13 State of Madras v C P Sarathy AIR 1953 SC 53 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84], State of
Madras v C P Sarathy [1953] SCR 334 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84], State of Madras v C P
Sarathy (1953) SCJ 39 [LNIND 1952 SC 84] [LNIND 1952 SC 84] [LNIND 1952 SC 84]; see Avon Services Production
Agencies Pvt Ltd v Industrial Tribunal AIR 1979 SC 170 [LNIND 1978 SC 284] [LNIND 1978 SC 284] [LNIND 1978 SC 284],
Avon Services Production Agencies Pvt Ltd v Industrial Tribunal (1979) 1 SCC 1 [LNIND 1978 SC 284] [LNIND 1978 SC 284]
[LNIND 1978 SC 284], Avon Services Production Agencies Pvt Ltd v Industrial Tribunal [1979] 2 SCR 45 [LNIND 1978 SC 284]
[LNIND 1978 SC 284] [LNIND 1978 SC 284]; Shambu Nath Goyal v Bank of Baroda AIR 1978 SC 1088 [LNIND 1978 SC 35]
[LNIND 1978 SC 35] [LNIND 1978 SC 35], Shambu Nath Goyal v Bank of Baroda (1978) 2 SCC 353 [LNIND 1978 SC 35]
[LNIND 1978 SC 35] [LNIND 1978 SC 35], Shambu Nath Goyal v Bank of Baroda [1978] 2 SCR 793 [LNIND 1978 SC 35]
[LNIND 1978 SC 35] [LNIND 1978 SC 35].
14 Ie under the Industrial Disputes Act 1947 s 12.
15 Bombay Union of Journalists v State of Bombay AIR 1964 SC 1617 [LNIND 1963 SC 305] [LNIND 1963 SC 305] [LNIND
1963 SC 305], Bombay Union of Journalists v State of Bombay (1964) 1 Lab LJ 351 [LNIND 1963 SC 305] [LNIND 1963 SC
305] [LNIND 1963 SC 305]; see State of Bombay v K P Krishnan AIR 1960 SC 1223 [LNIND 1960 SC 125] [LNIND 1960 SC
125] [LNIND 1960 SC 125], State of Bombay v K P Krishnan (1960) 2 SCA 527, State of Bombay v K P Krishnan (1960) 2 Lab
262
Page 71
LJ 592.
17 Shibban Lal Saksena v State of Uttar Pradesh AIR 1954 SC 179 [LNIND 1953 SC 110] [LNIND 1953 SC 110] [LNIND 1953
SC 110], Shibban Lal Saksena v State of Uttar Pradesh [1954] SCR 418 [LNIND 1979 SC 400] [LNIND 1979 SC 400] [LNIND
1979 SC 400], Shibban Lal Saksena v State of Uttar Pradesh (1954) SCJ 73; State of Bombay v Atma Ram Shridhar Vaidya
AIR 1951 SC 157 [LNIND 1951 SC 5] [LNIND 1951 SC 5] [LNIND 1951 SC 5], State of Bombay v Atma Ram Shridhar Vaidya
[1951] SCR 167 [LNIND 1951 SC 5] [LNIND 1951 SC 5] [LNIND 1951 SC 5], State of Bombay v Atma Ram Shridhar Vaidya
(1951) SCJ 208 [LNIND 1951 SC 5] [LNIND 1951 SC 5] [LNIND 1951 SC 5]; AK Gopalan v State of Madras AIR 1950 SC 27
[LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22], AK Gopalan v State of Madras [1950] SCR 88 [LNIND 1950 SC
22] [LNIND 1950 SC 22] [LNIND 1950 SC 22], AK Gopalan v State of Madras (1950) SCJ 174 [LNIND 1950 SC 22] [LNIND
1950 SC 22] [LNIND 1950 SC 22]; See Mangalbhai Motiram Patel v State of Maharashtra AIR 1981 SC 510 [LNIND 1980 SC
410] [LNIND 1980 SC 410] [LNIND 1980 SC 410], Mangalbhai Motiram Patel v State of Maharashtra (1980) 4 SCC 470 [LNIND
1980 SC 410] [LNIND 1980 SC 410] [LNIND 1980 SC 410], Mangalbhai Motiram Patel v State of Maharashtra [1981] 1 SCR
852 [LNIND 1980 SC 410] [LNIND 1980 SC 410] [LNIND 1980 SC 410]; Magan Gope v State of West Bengal AIR 1975 SC
953 [LNIND 1975 SC 62] [LNIND 1975 SC 62] [LNIND 1975 SC 62], Magan Gope v State of West Bengal (1975) 1 SCC 415
[LNIND 1975 SC 62] [LNIND 1975 SC 62] [LNIND 1975 SC 62], Magan Gope v State of West Bengal (1975) 2 SCJ 239.
18 Bhim Sen v State of Punjab AIR 1951 SC 481 [LNIND 1951 SC 54] [LNIND 1951 SC 54] [LNIND 1951 SC 54], Bhim Sen v
State of Punjab [1952] SCR 18, Bhim Sen v State of Punjab (1951) SCJ 747; AK Roy v Union of India AIR 1982 SC 710
[LNIND 1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], AK Roy v Union of India (1982) 1 SCC 271 [LNIND 1981
SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469], AK Roy v Union of India (1982) 2 SCJ 68.
19 See Ghetu Sheik v State of West Bengal AIR 1975 SC 982; IAK Gopalan v Government of India AIR 1966 SC 816 [LNIND
1965 SC 574] [LNIND 1965 SC 574] [LNIND 1965 SC 574]; Pushpadevi M Jatia v ML Wadhavan AIR 1987 SC 1156,
Pushpadevi M Jatia v ML Wadhavan (1986) Supp SCC 535, Pushpadevi M Jatia v ML Wadhavan (1987) Cr LR 9.
20 See Tarak Nath Chakraborty v State of West Bengal AIR 1972 SC 2388.
21 Vice-Chancellor, Utkal University v S K Ghosh AIR 1954 SC 217 [LNIND 1954 SC 6] [LNIND 1954 SC 6] [LNIND 1954 SC
6], Vice-Chancellor, Utkal University v S K Ghosh [1954] SCR 883 [LNIND 1954 SC 6] [LNIND 1954 SC 6] [LNIND 1954 SC 6],
Vice-Chancellor, Utkal University v S K Ghosh (1954) SCJ 252 [LNIND 1954 SC 6] [LNIND 1954 SC 6] [LNIND 1954 SC 6].
22 J R Raghupathy v State of Andhra Pradesh AIR 1988 SC 1681 [LNIND 1988 SC 692] [LNIND 1988 SC 692] [LNIND 1988
SC 692]; see also Pratibha Co-operative Housing Society Ltd v State of Maharashtra AIR 1991 SC 1453 [LNIND 1991 SC 278]
[LNIND 1991 SC 278] [LNIND 1991 SC 278], Pratibha Co-operative Housing Society Ltd v State of Maharashtra (1991) 3 SCC
341 [LNIND 1991 SC 278] [LNIND 1991 SC 278] [LNIND 1991 SC 278], Pratibha Co-operative Housing Society Ltd v State of
Maharashtra [1991] 2 SCR 745 [LNIND 1991 SC 278] [LNIND 1991 SC 278] [LNIND 1991 SC 278].
23 State of Gujarat v Jamnadas G Pabri AIR 1974 SC 2233 [LNIND 1974 SC 292] [LNIND 1974 SC 292] [LNIND 1974 SC
292], State of Gujarat v Jamnadas G Pabri (1975) 1 SCC 138 [LNIND 1974 SC 292] [LNIND 1974 SC 292] [LNIND 1974 SC
292], State of Gujarat v Jamnadas G Pabri [1975] 2 SCR 330 [LNIND 1974 SC 292] [LNIND 1974 SC 292] [LNIND 1974 SC
292].
24 Gujarat Panchayats Act 1961 s 303A.
27 Y Mahaboob Sheriff and Sons v Mysore State Transport Authority, Bangalore AIR 1960 SC 321 [LNIND 1959 SC 199]
[LNIND 1959 SC 199] [LNIND 1959 SC 199], Y Mahaboob Sheriff and Sons v Mysore State Transport Authority, Bangalore
(1960) 2 SCR 146 [LNIND 1959 SC 199] [LNIND 1959 SC 199] [LNIND 1959 SC 199], Y Mahaboob Sheriff and Sons v Mysore
State Transport Authority, Bangalore (1960) SCJ 402. See Asstt Controller of Estate Duty v Prayag Dass Agarwal AIR 1991
SC 1263, Asstt Controller of Estate Duty v Prayag Dass Agarwal (1981) 3 SCC 181 [LNIND 1981 SC 250] [LNIND 1981 SC
250] [LNIND 1981 SC 250], Asstt Controller of Estate Duty v Prayag Dass Agarwal [1981] 3 SCR 576 [LNIND 1981 SC 250]
[LNIND 1981 SC 250] [LNIND 1981 SC 250].
28 Advocates Act 1961 s 1(3).

ADMINISTRATIVE LAW/14. DISCRETIONARY POWERS/(2) ABUSE OF DISCRETIONARY
POWERS/[005.189] Mala fide exercise of discretionary powers
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[005.189] Mala fide exercise of discretionary powers A mala fide exercise of discretionary power is bad
as it amounts to abuse of discretion1. Mala fides, or bad faith, means dishonest intention or corrupt motive in
the exercise of power, or a deliberately malicious or fraudulent purpose, on the part of the decision-maker.
Mala fides includes those cases where the motive force behind an action is personal animosity spite,
vengeance, personal gratification or benefit to the concerned authority or its friends or relatives2. Hence a
discretionary decision is vitiated if the motivation behind it is dishonest3. Where the application for a solvency
certificate was rejected by the collector without any legitimate grounds, the court characterised the rejection
as unfair, arbitrary and mala fide. Issue of a solvency certificate is regulated by non-statutory instructions and
discretion vested in a public body must be exercised fairly and honestly with due regard to the purpose for
which it is vested and not arbitrarily and with an ulterior motive4.
In the event of change of the managing committee, orders of termination of services by the succeeding
managing committee on the ground that the staff was appointed by a previous managing committee, were
quashed on the basis that the action was mala fide5.
Sanction by the chief minister to several societies to establish medical colleges, where one of these societies
was managed by his family was nullified on the ground that the whole exercise assumes a dubious nature
and that the government had a pre-determined approach to sanction these colleges6.
Selection of candidates to public offices must be made objectively and fairly. Where the results are
tampered, the appointments are not made in a manner which is fair and transparent. Such appointments will
be quashed in the interest of the public7.
Allegations must be direct, specific and precise to sustain a plea of mala fide and broad and general
allegations of bad faith against the concerned authority do not suffice8. The plea of mala fides cannot be
sustained by the court on the basis of mere probabilities9. The burden of proving mala fides rests on the
person who seeks to invalidate an order on this ground10. However, suspicions, allegations of mala fides,
bereft of details and unsupported by acceptable evidence, are not recognised by law11 and the very serious
nature of the allegation of mala fides demands proof of a high degree of credibility12.
The person or authority against whom the plea of mala fides is raised, must be made a party to the court
proceedings and, hence, given an opportunity to rebut the allegations made against him. He can do so by
filing an affidavit controverting the allegations made against him13. Where mala fides are alleged, it is
necessary that, the person against whom such allegations are made must refute or deny such allegations14.
Furthermore, the court is constrained to accept the allegations, remaining unrebutted and unanswered, on
the test of probability15. However, the ordinary rule of evidence of onus of proof is applicable, where only
subsequent to the petitioner discharging his responsibility, regarding the initial onus of proof, will the court
call upon the concerned authority to justify the order made by it16. A preventive detention order issued by the
government, on the basis of the report submitted by the deputy superintendent of police, was quashed on the
ground of mala fides of the detaining authority. In the abovementioned case, the deputy superintendent of
police made no affidavit to controvert the charges of mala fide made against him17.
Where the allegations of mala fides are against the government, it must not be presumed that the
government always acts in a manner which is just and fair18. Hence, although the court must exercise
caution while dealing with allegations of mala fide on holders of high office and power, the probabilities
arising from proven circumstances cannot be ignored19. However, it is not necessary in each and every case
to call upon persons placed in high positions to controvert allegations made against them by filing affidavits
unless allegations are specific, pointed and necessary to be controverted20. Furthermore, it is not necessary
that mala fides must be discernible from the order impugned or must be shown from the notings in the file
which preceded the order or that it must be established by direct evidence. Bad faith can be deduced as a
reasonable and inescapable inference from the proved facts21. The motive of an authority can be inferred
from the course of events and other available material, like inter alia, public utterances of the authority,
statements in the pleadings or affidavits filed by the authority, or failure to file the affidavits denying the
allegations. Mala fides may also be inferred from the authority ignoring apparent facts either deliberately or
sheer avoidance.
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It is not necessary for the individual to establish as to which particular official of the government acted mala
fide22.
When a number of allegations are made against an authority to support the plea of mala fides, the court must
not verify each allegation separately but consider all allegations cumulatively to see whether the allegations
support the plea23.
1 State of Punjab v Gurdial Singh AIR 1980 SC 319 [LNIND 1979 SC 424] [LNIND 1979 SC 424] [LNIND 1979 SC 424], State
of Punjab v Gurdial Singh (1980) 2 SCC 471 [LNIND 1979 SC 424] [LNIND 1979 SC 424] [LNIND 1979 SC 424], State of
Punjab v Gurdial Singh [1980] 2 SCR 1071; B Krishna Kant v Supdt of Police AIR 1980 Kant 81 [LNIND 1980 KANT 21] [LNIND
1980 KANT 21] [LNIND 1980 KANT 21].
2 CS Rowjee v State of Andhra Pradesh AIR 1964 SC 962 [LNIND 1964 SC 14] [LNIND 1964 SC 14] [LNIND 1964 SC 14], CS
Rowjee v State of Andhra Pradesh (1964) 2 Andh LT 48; Express Newspapers Ltd v Union of India AIR 1986 SC 872 [LNIND
1985 SC 321] [LNIND 1985 SC 321] [LNIND 1985 SC 321], Express Newspapers Ltd v Union of India (1986) 1 SCC 133
[LNIND 1985 SC 321] [LNIND 1985 SC 321] [LNIND 1985 SC 321], Express Newspapers Ltd v Union of India (1986) 29 DLT
131; State of Punjab v Gurdial Singh AIR 1980 SC 319 [LNIND 1979 SC 424] [LNIND 1979 SC 424] [LNIND 1979 SC 424],
State of Punjab v Gurdial Singh (1980) 2 SCC 471 [LNIND 1979 SC 424] [LNIND 1979 SC 424] [LNIND 1979 SC 424], State of
Punjab v Gurdial Singh [1980] 2 SCR 1071.
3 S Partap Singh v State of Punjab AIR 1964 SC 72 [LNIND 1963 SC 211] [LNIND 1963 SC 211] [LNIND 1963 SC 211], S
Partap Singh v State of Punjab AIR 1963 Punj 298; State of Punjab v Ramji Lal AIR 1971 SC 1228 [LNIND 1970 SC 404]
[LNIND 1970 SC 404] [LNIND 1970 SC 404], State of Punjab v Ramji Lal (1970) 3 SCC 602 [LNIND 1970 SC 404] [LNIND
1970 SC 404] [LNIND 1970 SC 404], State of Punjab v Ramji Lal [1971] 2 SCR 550 [LNIND 1970 SC 404] [LNIND 1970 SC
404] [LNIND 1970 SC 404]; CS Rowjee v State of Andhra Pradesh AIR 1964 SC 962 [LNIND 1964 SC 14] [LNIND 1964 SC
14] [LNIND 1964 SC 14], CS Rowjee v State of Andhra Pradesh (1964) 2 Andh LT 48; State of Punjab v K K Khanna AIR 2001
SC 343 [LNIND 2000 SC 1707] [LNIND 2000 SC 1707] [LNIND 2000 SC 1707], State of Punjab v K K Khanna 2001 SCC (L &
S) 1010, State of Punjab v K K Khanna (2001) 1 SCJ 439 (a charge sheet served on a government servant was quashed
because of an element of bias, malice and mala fides. The government's disciplinary power over its employees is to be used for
public good and the action of the authority must be fair, reasonable and bona fide).
4 Girija Shankar Sharma v Collector, Hoshangabad AIR 1974 MP 83, Girija Shankar Sharma v Collector, Hoshangabad (1973)
MPLJ 983, Girija Shankar Sharma v Collector, Hoshangabad (1973) Jab LJ 1004.
5 Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh AIR 1985 SC 364 [LNIND 1984 SC 347] [LNIND 1984 SC 347]
[LNIND 1984 SC 347], Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh (1985) SCC (Lab) 269, Manmohan Singh
Jaitla v Comr, Union Territory, Chandigarh (1984) Supp SCC 540 [LNIND 1984 SC 347] [LNIND 1984 SC 347].
6 Nedurimilli Janardhana Reddy v Progressive Democratic Students' Union 1994 6 SCC 506.
7 Pritpal Singh v State of Haryana AIR 1995 SC 414 [LNIND 1994 SC 666] [LNIND 1994 SC 666] [LNIND 1994 SC 666],
Pritpal Singh v State of Haryana (1994) 5 SCC 695 [LNIND 1994 SC 666] [LNIND 1994 SC 666] [LNIND 1994 SC 666];
Krishnan Yadav v State of Haryana AIR 1994 SC 2166 [LNIND 1994 SC 521] [LNIND 1994 SC 521] [LNIND 1994 SC 521],
Krishnan Yadav v State of Haryana (1994) 4 SCC 165 [LNIND 1994 SC 521] [LNIND 1994 SC 521] [LNIND 1994 SC 521],
Krishnan Yadav v State of Haryana (1994) 4 JT 45.
8 Rajendra Roy v Union of India 1993 1 SCC 148; see Life Insurance Corporation v Escorts Ltd AIR 1986 SC 1370 [LNIND
1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], Life Insurance Corporation v Escorts Ltd (1986) 1 SCC 264 [LNIND
1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], Life Insurance Corporation v Escorts Ltd [1985] Supp 3 SCR 909;
State of Haryana v Rajendra Sareen AIR 1972 SC 1004 [LNIND 1971 SC 585] [LNIND 1971 SC 585] [LNIND 1971 SC 585],
State of Haryana v Rajendra Sareen (1972) 1 SCC 267 [LNIND 1971 SC 585] [LNIND 1971 SC 585] [LNIND 1971 SC 585],
State of Haryana v Rajendra Sareen [1972] 2 SCR 452 [LNIND 1971 SC 585] [LNIND 1971 SC 585] [LNIND 1971 SC 585];
Krishna Ballabh Sahay v Commission of Inquiry AIR 1969 SC 258 [LNIND 1968 SC 166] [LNIND 1968 SC 166] [LNIND 1968
SC 166], Krishna Ballabh Sahay v Commission of Inquiry (1968) 2 SC WR 109, Krishna Ballabh Sahay v Commission of Inquiry
(1969) Cr LJ 520; State of Jammu & Kashmir v Bakshi Ghulam Mohammad AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND
1966 SC 139] [LNIND 1966 SC 139], State of Jammu & Kashmir v Bakshi Ghulam Mohammad [1966] Supp SCR 401; Barium
Chemicals Ltd v Company Law Board AIR 1967 SC 295 [LNIND 1966 SC 132] [LNIND 1966 SC 132] [LNIND 1966 SC 132],
Barium Chemicals Ltd v Company Law Board [1966] Supp SCR 311, Barium Chemicals Ltd v Company Law Board (1966) 2
SCJ 623; Pooran Mal v Director of Inspection 1974 93 ITR 505 [LNIND 1973 SC 400] [LNIND 1973 SC 400] [LNIND 1973 SC
400].
9 A Periakaruppan v State of Tamil Nadu AIR 1971 SC 2303 [LNIND 1970 SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC
386], A Periakaruppan v State of Tamil Nadu (1971) 2 SCJ 222 [LNIND 1970 SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC
386], A Periakaruppan v State of Tamil Nadu (1971) 2 Mad LJ (SC) 65.
10 Kedar Nath Bahl v State of Punjab AIR 1979 SC 220 [LNIND 1978 SC 279] [LNIND 1978 SC 279] [LNIND 1978 SC 279],
Kedar Nath Bahl v State of Punjab (1978) 4 SCC 336 [LNIND 1978 SC 279] [LNIND 1978 SC 279] [LNIND 1978 SC 279],
265
Page 74
Kedar Nath Bahl v State of Punjab [1979] 1 SCR 1089 [LNIND 1978 SC 279] [LNIND 1978 SC 279] [LNIND 1978 SC 279];
Land Acquisition Collector v Durga Pada Mukherjee AIR 1980 SC 1678 [LNIND 1980 SC 351] [LNIND 1980 SC 351] [LNIND
1980 SC 351], Land Acquisition Collector v Durga Pada Mukherjee (1980) 4 SCC 271 [LNIND 1980 SC 351] [LNIND 1980 SC
351] [LNIND 1980 SC 351], Land Acquisition Collector v Durga Pada Mukherjee [1981] 1 SCR 573 [LNIND 1980 SC 351]
[LNIND 1980 SC 351] [LNIND 1980 SC 351].
Ajay Hasia v Khalid Mujib Sehravardi [1981] 2 SCR 79 [LNIND 1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456]; see
Hem Lall Bhandari v State of Sikkim AIR 1987 SC 762 [LNIND 1987 SC 103] [LNIND 1987 SC 103] [LNIND 1987 SC 103], Hem
Lall Bhandari v State of Sikkim (1987) 2 SCC 9 [LNIND 1987 SC 103] [LNIND 1987 SC 103] [LNIND 1987 SC 103], Hem Lall
Bhandari v State of Sikkim (1987) 2 SCJ 36.
12 E P Royappa v State of Tamil Nadu AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359],
E P Royappa v State of Tamil Nadu (1974) 4 SCC 3 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359], E P
Royappa v State of Tamil Nadu [1974] 2 SCR 348 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]; P
Mathur v State of Bihar AIR 1972 Pat 93, P Mathur v State of Bihar (1971) Pat LJR 918, P Mathur v State of Bihar (1971) 1
Service LR 335; M Shankaranarayanan v State of Karnataka AIR 1993 SC 763 [LNIND 1992 SC 813] [LNIND 1992 SC 813]
[LNIND 1992 SC 813], M Shankaranarayanan v State of Karnataka (1993) 1 SCJ 298, M Shankaranarayanan v State of
Karnataka (1993) SCC (L & S) 122.
13 U P Residents Employees Co-operative House Building Society Delhi v New Okhla Industrial Development Authority AIR
1983 All 303; Collector, Allahabad v Raja Ram Jaiswal AIR 1985 SC 1622 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND
1985 SC 155], Collector, Allahabad v Raja Ram Jaiswal (1985) 3 SCC 1 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND
1985 SC 155], Collector, Allahabad v Raja Ram Jaiswal [1985] 3 SCR 995 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND
1985 SC 155].
14 Sukhwinder Pal Bipan Kumar v State of Punjab AIR 1982 SC 65 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND 1981
SC 450], Sukhwinder Pal Bipan Kumar v State of Punjab (1982) 1 SCC 31 [LNIND 1981 SC 450] [LNIND 1981 SC 450] [LNIND
1981 SC 450], Sukhwinder Pal Bipan Kumar v State of Punjab (1982) SC Cr R 119.
15 Express Newspapers Ltd v Union of India AIR 1986 SC 872 [LNIND 1985 SC 321] [LNIND 1985 SC 321] [LNIND 1985 SC
321], Express Newspapers Ltd v Union of India (1986) 1 SCC 133 [LNIND 1985 SC 321] [LNIND 1985 SC 321] [LNIND 1985
SC 321], Express Newspapers Ltd v Union of India (1986) 29 Del LT 131.
16 Hukam Singh v State of Punjab AIR 1975 P & H 148, Hukam Singh v State of Punjab (1975) ILR 1 Punj 619, Hukam Singh
v State of Punjab (1975) Cr LJ 902; Pamalal Binjraj v Union of India AIR 1957 SC 397 [LNIND 1956 SC 117] [LNIND 1956 SC
117] [LNIND 1956 SC 117], Pamalal Binjraj v Union of India [1957] SCR 233 [LNIND 1956 SC 117] [LNIND 1956 SC 117]
[LNIND 1956 SC 117]. As to burden of proof see EVIDENCE[145.015].
17 G Sadanandan v State of Kerala AIR 1966 SC 1925 [LNIND 1966 SC 52] [LNIND 1966 SC 52] [LNIND 1966 SC 52], G
Sadanandan v State of Kerala (1966) Cr LJ 1533, G Sadanandan v State of Kerala (1966) 2 SCJ 725.
Union of India (1987) SCC (Lab)400.
19 Shivajirao Nilangekar Patil v Mahesh Madhav Gosai AIR 1987 SC 294 [LNIND 1986 SC 503] [LNIND 1986 SC 503] [LNIND
1986 SC 503], Shivajirao Nilangekar Patil v Mahesh Madhav Gosai (1987) 1 SCC 227 [LNIND 1986 SC 503] [LNIND 1986 SC
503] [LNIND 1986 SC 503], Shivajirao Nilangekar Patil v Mahesh Madhav Gosai (1987) 2 SCJ 1.
20 Hem Lall Bhandari v State of Sikkim AIR 1987 SC 762 [LNIND 1987 SC 103] [LNIND 1987 SC 103] [LNIND 1987 SC 103],
Hem Lall Bhandari v State of Sikkim (1987) 2 SCC 9 [LNIND 1987 SC 103] [LNIND 1987 SC 103] [LNIND 1987 SC 103], Hem
Lall Bhandari v State of Sikkim (1987) 2 SCJ 36.
21 S Partap Singh v State of Punjab AIR 1964 SC 72 [LNIND 1963 SC 211] [LNIND 1963 SC 211] [LNIND 1963 SC 211], S
Partap Singh v State of Punjab AIR 1963 Punj 298; C S Rowjee v State of Andhra Pradesh AIR 1964 SC 962 [LNIND 1964 SC
14] [LNIND 1964 SC 14] [LNIND 1964 SC 14], C S Rowjee v State of Andhra Pradesh (1964) 2 Andh LT 48.
22 State of Punjab v Ramji Lal AIR 1971 SC 1228 [LNIND 1970 SC 404] [LNIND 1970 SC 404] [LNIND 1970 SC 404], State of
Punjab v Ramji Lal AIR 1966 Punj 374, State of Punjab v Ramji Lal (1971) 2 SCJ 348 [LNIND 1970 SC 404] [LNIND 1970 SC
404] [LNIND 1970 SC 404].
23 See State of Haryana v Rajendra Sareen AIR 1972 SC 1004 [LNIND 1971 SC 585] [LNIND 1971 SC 585] [LNIND 1971 SC
585], See State of Haryana v Rajendra Sareen (1972) 2 SCJ 604 [LNIND 1971 SC 585] [LNIND 1971 SC 585] [LNIND 1971 SC
585], See State of Haryana v Rajendra Sareen (1972) 1 Lab LJ 112 [LNIND 1971 SC 552] [LNIND 1971 SC 552] [LNIND 1971
SC 552].
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POWERS/[005.190] Bias and mala fides
[005.190] Bias and mala fides Bias is a state of mind of the decision maker which leads him to a
predisposition towards a matter, or a person involved in the dispute, which he is called upon to decide1 and
has a broader connotation and applicability than mala fides2. Bias operates in the area of adjudication, while
mala fides are applicable in case of administrative and non-adjudicatory action3. In the case of bias, proof of
actual bias is not necessary. However, where mala fide is alleged, the courts insist on proof of abuse of
discretionary powers4.
1 As to bias see [005.073].
2 As to mala fide exercise of discretionary powers see [005.189].
3 As to administrative powers see [005.172].
4 As to proof of mala fides see [005.189].

POWERS/[005.191] Improper purpose
[005.191] Improper purpose The purpose is said to be improper when the concerned authority, in
exercising its discretionary power1, achieves an objective other than the one sanctioned by the statute which
has conferred the power on the authority concerned2. Where a discretionary power has been exercised for
an unauthorised purpose it is immaterial whether the administrative authority was acting in good faith or in
bad faith3. Hence relevance of the purpose for which the authority has exercised its discretionary power must
be assessed4.
Where the government is empowered to acquire property for a public purpose5, a notification acquiring
property ostensibly for a 'public purpose', but actually for a 'private purpose', Can be quashed as the legal
power is being exercised for an unauthorised purpose6.
The power of the government granted by a statute, to exempt certain classes or individuals from the
provisions of a statute, is to be exercised to advance the object and intendment of the statute7.
Where the state government requisitions property for use by a government officer, and subsequently lets it in
the possession of a co-operative society for running a fair price shop, the order of requisition will be quashed
on the grounds of being illegal and ultra vires8.
The expression 'colourable exercise of power' can be used interchangeably with 'improper purpose' to
denote the abuse of discretionary powers9.
When an administrative act is exercised for a combination of authorized and unauthorized purpose, the
legality of the administrative act is to be determined by a reference to the dominant purpose10.
2 Padfield v Minister of Agriculture, Fisheries and Food [1968] AC 997, Padfield v Minister of Agriculture, Fisheries and Food
[1968] 1 All ER 694 HL; see Mixnam's Properties Ltd v Chertsey UDC [1965] AC 735, Mixnam's Properties Ltd v Chertsey UDC
[1964] 2 All ER 627; P J Irani v State of Madras AIR 1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961
SC 192], P J Irani v State of Madras [1962] 2 SCR 169 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192], P J
267
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Irani v State of Madras (1961) 2 SCJ 194 [LNIND 1961 SC 35] [LNIND 1961 SC 35] [LNIND 1961 SC 35]; see also R L Arora v
State of Uttar Pradesh AIR 1962 SC 764 [LNIND 1961 SC 392] [LNIND 1961 SC 392] [LNIND 1961 SC 392], R L Arora v State
of Uttar Pradesh (1963) 1 SCJ 33, R L Arora v State of Uttar Pradesh (1962) All LJ 362.
3 S R Venkataraman v Union of India AIR 1979 SC 49; Collector, Allahabad v Raja Ram Jaiswal AIR 1985 SC 1622 [LNIND
1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC 155], Collector, Allahabad v Raja Ram Jaiswal (1985) 3 SCC 1 [LNIND
1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC 155], Collector, Allahabad v Raja Ram Jaiswal [1985] 3 SCR 995 [LNIND
1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC 155]; Narayan Govind Gavate v State of Maharashtra AIR 1977 SC 183
[LNIND 1976 SC 364] [LNIND 1976 SC 364] [LNIND 1976 SC 364], Narayan Govind Gavate v State of Maharashtra (1977) 1
SCC 133 [LNIND 1976 SC 364] [LNIND 1976 SC 364] [LNIND 1976 SC 364], Narayan Govind Gavate v State of Maharashtra
4 Sydney Municipal Council v Campbell [1925] AC 338; see Reg v Foreign Secretary exp World Development Movement Ltd
[1995] 1 WLR 387.
5 Ie Under the Land Acquisition Act 1894 s 4.
6 R K Agarwalla v State of West Bengal AIR 1965 SC 995 [LNIND 1964 SC 641] [LNIND 1964 SC 641] [LNIND 1964 SC 641],
R K Agarwalla v State of West Bengal (1965) 1 SCA 606, R K Agarwalla v State of West Bengal (1965) 2 SCWR 33; Ahmad
Hossain v State of Madhya Pradesh AIR 1951 Nag 138; see Jatadhar Mitra v State of West Bengal AIR 1970 Cal 90 [LNIND
1969 CAL 108] [LNIND 1969 CAL 108] [LNIND 1969 CAL 108]; As to similarity between improper use and irrelevant
considerations [005.193].
7 Ramakanyadevi v State of Karnataka AIR 1980 Kant 182, Ramakanyadevi v State of Karnataka (1980) 1 Kant LJ 407.
8 Amritsar Central Co-operative Store Ltd v Ram Kishan Mehra AIR 1973 P & H 342. As to doctrine of ultra vires see
[005.184].
9 Bajirao T Kote v State of Maharashtra 1995 2 SCC 442 [LNIND 1994 SC 1160] [LNIND 1994 SC 1160] [LNIND 1994 SC
1160]; see also Srinivasa Co-operative Housing Building Society Ltd v Madam Gurumurthy Sastry 1994 4 SCC 675 [LNIND
1994 SC 466] [LNIND 1994 SC 466] [LNIND 1994 SC 466]; Lal Kamal Das v State of West Bengal AIR 1975 SC 753, Lal
Kamal Das v State of West Bengal (1975) 4 SCC 62, Lal Kamal Das v State of West Bengal (1975) Cr LJ 630; Noor Chand
Sheikh v State of West Bengal AIR 1974 SC 2120, Noor Chand Sheikh v State of West Bengal (1974) Cr LJ 1394. As to
colourable exercise of power see [005.197].
10 P V Jagannath Rao v State of Orissa AIR 1969 SC 215 [LNIND 1968 SC 402] [LNIND 1968 SC 402] [LNIND 1968 SC 402],
P V Jagannath Rao v State of Orissa (1969) 2 SCJ 41, P V Jagannath Rao v State of Orissa (1969) 1 SC WR 293; see Earl
Fitzwilliam's Wentworth Estate Co v Minister of Town and Country Planning [1951] 2 KB 284, Earl Fitzwilliam's Wentworth
Estate Co v Minister of Town and Country Planning [1951] 1 All ER 982.

POWERS/[005.192] Relevant and irrelevant considerations
[005.192] Relevant and irrelevant considerations Discretionary power must be exercised on relevant
grounds, reasons or considerations1. If all relevant factors are not considered, or if irrelevant considerations
are admitted, the decision is vitiated by arbitrary judgment2.
Where a state government conferring discretion on an authority lays down the considerations which have to
be taken into account by the concerned authority in exercising its power, an order issued without taking into
account the abovementioned considerations, or by taking into account any considerations outside those
mentioned in the Act will be invalid3. Hence a decision arrived at by an authority ignoring the factors or
guidelines laid down in the statute will be invalid4.
The rule of law, constitutional and administrative, is that whenever a decision making function is entrusted to
the subjective satisfaction of a statutory functionary, there is an implicit obligation to apply his mind to
pertinent and proximate matters only, eschewing the irrelevant and the remote5. Furthermore, if the authority
takes into account certain circumstances or considerations which are irrelevant or extraneous to the purpose,
or the tenor of the statute in question, then its act will be invalid even if the authority in question has acted in
good faith6. An order of reduction of fares issued by a political party in pursuance of its election manifesto
can be quashed on the ground that the party has no power under the relevant statute to instruct on reduction
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of fares7. Where a statute does not mention the relevant criteria or considerations, and may appear to confer
power in unlimited terms, the court must, keeping in mind the purpose, tenor and provisions of that Act,
assess whether relevant, or extraneous or irrelevant considerations have been applied by the administration
in arriving at its decision8.
The government's power to approve the increase in the salary of an employee9 must be exercised on the
basis of relevant material pertaining to the company which seeks such an approval10.
Where, under the Code of Civil Procedure 1908, the government of India can grant a person permission to
sue a foreign government11 and such permission is refused on political grounds, without providing the
applicant an opportunity to be heard, the order is invalid on the ground that the government order must be
based on relevant material factors objectively considered12.
An export licence granted conditionally, under the Imports and Exports (Control) Act 194713, for exporting
certain quantity of cast iron bearings and turnings is ultra vires the statute. The objective of the Act conferring
unqualified power on the government is to control the exports and not the internal distribution of a
commodity14.
Under the Industrial Disputes Act 1947, the government has prima facie an unlimited power to refuse to refer
an industrial dispute to a tribunal for adjudication subject to the condition that it has to record its reasons for
the refusal15. Where the government refused to refer an industrial dispute with regard to the payment of
bonus to a tribunal for adjudication for the reason that the workmen resorted to go slow during the year, the
reason was extraneous and inconsistent with the object of the Act16. The government cannot use its power
to refuse to refer a dispute for adjudication to discipline the workers. Where a licence is refused on grounds
which appear to be irrelevant, the court can legitimately interfere17. Where the power to acquire land,
conferred on the authority by the Land Acquisition Act 189418, is exercised for an extraneous purpose, the
notification seeking the acquisition will be quashed19.
Under the Companies Act 1956, the company board can order investigation into the affairs of a company if,
in the opinion of the board, there are circumstances suggesting (i) that the business of the company is being
conducted with intent to defraud its creditors, or members, (ii) that the persons concerned in the formation of
the company or its management have been guilty or fraud, misfeasance or other misconduct towards the
company or any of its members, (iii) that the members of the company have not provided information about
the affairs of the company20. However, where no inference of fraud could be derived from the circumstances
mentioned by the government, an order of investigation based on delay and faulty planning of the project
resulting in continuous losses to the company, was quashed by the court as the facts had no relevance to
the question of fraud by the company21.
Under the Essential Commodities Act 1955, the price payable to the producer for the sale of sugar is to be
determined by the government by having regard to the factors mentioned in the Act22. The expression
'having regard to' does not mean that the government cannot, after taking into account the matters
mentioned, consider any other relevant matter. The government must determine with reference to what it
reasonably considers to be relevant for the purpose23. Furthermore, the court will not strictly scrutinise the
extent to which any matter has been taken into account24. However, while all the factors mentioned in the
statutory provision conferring discretionary power are relevant, and need to be considered by the decision
maker, all the factors may not be accorded equal importance25.
Hence, while passing an order, the concerned authority must act on relevant and proper considerations and
abstain from taking into account irrelevant considerations26. Orders of compulsory retirement, where the
authority has fails to act on relevant and proper considerations, will be quashed by the courts27. The courts
are empowered to examine and determine whether the reasons are relevant and material28 and will not
question the adequacy and sufficiency of the reasons of the order29. An administrative action taken on vague
and non-specific grounds is vitiated30. Where relaxations are sought to be made in a statute, the authority
must provide an opportunity of being heard to the concerned groups against the proposed relaxation31.
An order may be based partly on relevant and partly on irrelevant considerations. The validity of such an
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order depends on the court's judgment whether or not the exclusion of the irrelevant or non-existent ground
would affect the ultimate decision of the concerned authority and whether the authority would have passed
the same order even on the basis of the relevant ground32. Furthermore, where an order contains severable
valid and invalid portions, the court can quash the invalid portion of the order33. An order of dismissal by way
of punishment, if based on several grounds, of which one or two grounds fail, and the order can rest on the
surviving grounds disclosing prima facie case of guilt or misconduct, is valid34. The abovementioned legal
position holds good in case of compulsory retirement where the rights of the government servant is not
affected35. However, an order affecting the rights of a person, as in the case of preventive detention, would
be invalid if based on any irrelevant ground along with relevant grounds36. Non-consideration of relevant
material which could have influenced the detaining authority, on the question of whether or not to make the
detention order, would vitiate the subjective satisfaction rendering the order illegal37. Under the Conservation
of Foreign Exchange and Prevention of Smuggling Act 1974, when an order of preventive detention has
been made on two or more grounds, and if one or more grounds are vague, non-existent, or not relevant, the
detaining officer must have passed the detention order after being satisfied with reference to the remaining
ground or grounds38.
1 Dunlop India Ltd v Union of India AIR 1977 SC 597 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390],
Dunlop India Ltd v Union of India (1976) 2 SCC 241 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390], Dunlop
India Ltd v Union of India [1976] 2 SCR 98 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390]; see Rampur
Distillery and Chemical Co Ltd v Company Law Board AIR 1970 SC 1789 [LNIND 1969 SC 307] [LNIND 1969 SC 307] [LNIND
1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law Board [1970] 2 SCR 177 [LNIND 1969 SC 307] [LNIND
1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law Board (1970) 2 SCJ 89.
2 Swastik Rubber Products Ltd v Poona Municipality AIR 1981 SC 2022 [LNIND 1981 SC 390] [LNIND 1981 SC 390] [LNIND
1981 SC 390], Swastik Rubber Products Ltd v Poona Municipality (1981) 4 SCCC 219; All India Reporter Ltd v Union of India
AIR 1982 Bom 41 [LNIND 1981 BOM 279] [LNIND 1981 BOM 279] [LNIND 1981 BOM 279], All India Reporter Ltd v Union of
India (1982) Tax LR 2422 [LNIND 1981 BOM 279] [LNIND 1981 BOM 279] [LNIND 1981 BOM 279] (under the Companies Act
1956 s 326, in respect of certain categories of companies, approval of the Central Government has to be obtained for
appointment or re-appointment of managing agents. Section 326(2) lays down certain grounds which the Government has to
keep in view while according its approval. The Government is enjoined not to accord its approval unless it is satisfied that it is
not against public interest to allow the company to have a managing agent, that the managing agent proposed is, in the
Government's opinion, a fit and proper person to be appointed or reappointed as such, and that the conditions proposed for the
managing agency agreement are fair and reasonable).
3 Shalini Soni v Union of India AIR 1981 SC 431 [LNIND 1980 SC 429] [LNIND 1980 SC 429] [LNIND 1980 SC 429], Shalini
Soni v Union of India (1980) 4 SCC 544 [LNIND 1980 SC 429] [LNIND 1980 SC 429] [LNIND 1980 SC 429], Shalini Soni v
Union of India [1981] 1 SCR 962 [LNIND 1980 SC 429] [LNIND 1980 SC 429] [LNIND 1980 SC 429]; Ranjit Singh v Union of
India AIR 1981 SC 461 [LNIND 1980 SC 409] [LNIND 1980 SC 409] [LNIND 1980 SC 409], Ranjit Singh v Union of India (1980)
4 SCC 311 [LNIND 1980 SC 409] [LNIND 1980 SC 409] [LNIND 1980 SC 409], Ranjit Singh v Union of India [1981] 1 SCR 847
[LNIND 1980 SC 409] [LNIND 1980 SC 409] [LNIND 1980 SC 409]; Associated Provincial Picture Houses Ltd v Wednesbury
Corpn [1948] 1 KB 223, Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1947] 2 All ER 680 CA,; R v Inner
London Education Authority, exp Westminster City Council [1986] 1 All ER 19, R v Inner London Education Authority, exp
Westminster City Council [1986] 1 WLR 28 CA,; see Indian Nut Products v Union of India 1994 4 SCC 269 [LNIND 1994 SC
518] [LNIND 1994 SC 518] [LNIND 1994 SC 518].
4 Shri Malaprabha Co-operative Sugar Factory Ltd v Union of India AIR 1994 SC 1311, Shri Malaprabha Co-operative Sugar
Factory Ltd v Union of India 1994 AIR SCW 734, Shri Malaprabha Co-operative Sugar Factory Ltd v Union of India (1994) 1
SCC 648; R P Bhatt v Union of India AIR 1986 SC 1040 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518], R
P Bhatt v Union of India (1986) 2 SCC 651 [LNIND 1986 SC 518] [LNIND 1986 SC 518] [LNIND 1986 SC 518], R P Bhatt v
Union of India [1985] Supp 1 SCR 947; Nasir Ahmed v Asstt Custodian General, Evacuee Property AIR 1980 SC 1157 [LNIND
1980 SC 149] [LNIND 1980 SC 149] [LNIND 1980 SC 149], Nasir Ahmed v Asstt Custodian General, Evacuee Property (1980)
3 SCC 1 [LNIND 1980 SC 149] [LNIND 1980 SC 149] [LNIND 1980 SC 149], Nasir Ahmed v Asstt Custodian General, Evacuee
Property (1980) 1 SCJ 546; Hochtief Gammon v State of Orissa AIR 1975 SC 2226 [LNIND 1975 SC 322] [LNIND 1975 SC
322] [LNIND 1975 SC 322], Hochtief Gammon v State of Orissa (1975) 2 SCC 649 [LNIND 1975 SC 322] [LNIND 1975 SC 322]
[LNIND 1975 SC 322], Hochtief Gammon v State of Orissa (1975) SCC (Lab) 362; S Padmavathi Amma v State of Kerala AIR
1983 Ker 88, S Padmavathi Amma v State of Kerala 83 Ker LT 29; Dinesh Roller Flour Mill v Union of India AIR 1983 Pat 293;
NP Purushothaman v State of Kerala AIR 1983 Ker 31, NP Purushothaman v State of Kerala (1983) ILR 1 Ker 187, NP
Purushothaman v State of Kerala (1983) Ker LT 527; Bhopal Sugar Industries Ltd, Sehore v Union of India AIR 1979 MP 163;
Shervani Sugar Syndicate Ltd, Allahabad v Union of India AIR 1979 All 394; T P Sundaralingam v State of Madras AIR 1971
Mad 245 [LNIND 1969 MAD 182] [LNIND 1969 MAD 182] [LNIND 1969 MAD 182].
5 Sachidanand Pandey v State of West Bengal AIR 1987 SC 1109 [LNIND 1987 SC 159] [LNIND 1987 SC 159] [LNIND 1987
SC 159], Sachidanand Pandey v State of West Bengal (1987) 2 SCC 295 [LNIND 1987 SC 159] [LNIND 1987 SC 159] [LNIND
1987 SC 159], Sachidanand Pandey v State of West Bengal (1987) 2 SCJ 70 [LNIND 1987 AP 472] [LNIND 1987 AP 472]
270
Page 79
[LNIND 1987 AP 472]; Ranjit Singh v Union of India AIR 1981 SC 461 [LNIND 1980 SC 409] [LNIND 1980 SC 409] [LNIND
1980 SC 409], Ranjit Singh v Union of India (1980) 4 SCC 311 [LNIND 1980 SC 409] [LNIND 1980 SC 409] [LNIND 1980 SC
409], Ranjit Singh v Union of India [1981] 1 SCR 847 [LNIND 1980 SC 409] [LNIND 1980 SC 409] [LNIND 1980 SC 409];
Shalini Soni v Union of India AIR 1981 SC 431 [LNIND 1980 SC 429] [LNIND 1980 SC 429] [LNIND 1980 SC 429], Shalini Soni
v Union of India (1980) 4 SCC 544 [LNIND 1980 SC 429] [LNIND 1980 SC 429] [LNIND 1980 SC 429], Shalini Soni v Union of
India [1981] 1 SCR 962 [LNIND 1980 SC 429] [LNIND 1980 SC 429] [LNIND 1980 SC 429]; see Hukam Chand v Union of
India AIR 1976 SC 789 [LNIND 1975 SC 519] [LNIND 1975 SC 519] [LNIND 1975 SC 519], Hukam Chand v Union of India
(1976) 2 SCC 128 [LNIND 1975 SC 519] [LNIND 1975 SC 519] [LNIND 1975 SC 519], Hukam Chand v Union of India [1976] 2
6 Ram Avtar Sharma v State of Haryana AIR 1985 SC 915 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122],
Ram Avtar Sharma v State of Haryana (1985) 3 SCC 189 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122],
Ram Avtar Sharma v State of Haryana [1985] 3 SCR 686 [LNIND 1985 SC 122] [LNIND 1985 SC 122] [LNIND 1985 SC 122];
Workmen of Syndicate Bank, Madras v Government of India AIR 1985 SC 1667 [LNIND 1984 SC 301] [LNIND 1984 SC 301]
[LNIND 1984 SC 301], Workmen of Syndicate Bank, Madras v Government of India (1986) Supp SCC 483, Workmen of
Syndicate Bank, Madras v Government of India 1985 1 LLJ 93 [LNIND 1984 SC 301] [LNIND 1984 SC 301] [LNIND 1984 SC
301]; V Veerarajan v State of Tamil Nadu AIR 1987 SC 695 [LNIND 1987 SC 49] [LNIND 1987 SC 49] [LNIND 1987 SC 49], V
Veerarajan v State of Tamil Nadu (1987) 1 SCC 479 [LNIND 1987 SC 49] [LNIND 1987 SC 49] [LNIND 1987 SC 49], V
Veerarajan v State of Tamil Nadu (1987) 1 SCJ 422.
7 Commr of Income Tax, Bombay v Mahindra and Mahindra Ltd AIR 1984 SC 1182 [LNIND 1983 SC 232] [LNIND 1983 SC
232] [LNIND 1983 SC 232], Commr of Income Tax, Bombay v Mahindra and Mahindra Ltd (1983) 4 SCC 392 [LNIND 1983 SC
232] [LNIND 1983 SC 232] [LNIND 1983 SC 232], Commr of Income Tax, Bombay v Mahindra and Mahindra Ltd [1983] 3 SCR
773 [LNIND 1983 SC 232] [LNIND 1983 SC 232] [LNIND 1983 SC 232]; See Padfield v Minister of Agriculture, Fisherie and
Food [1968] 1 All ER 694, Padfield v Minister of Agriculture, Fisherie and Food 1968 AC 997; Congreve v Home Office [1976]
QB 629 at 651, Congreve v Home Office [1976] 1 All ER 697. As to misdirection of fact and law see [005.197].
8 Bromley London Borough Council v Greater London Council [1983] 1 AC 768, Bromley London Borough Council v Greater
London Council [1982] 1 All ER 129 HL,; KM Shanmugam v S R V S Pvt Ltd AIR 1963 SC 1626 [LNIND 1963 SC 25] [LNIND
1963 SC 25] [LNIND 1963 SC 25], KM Shanmugam v S R V S Pvt Ltd [1964] 1 SCR 809 [LNIND 1963 SC 25] [LNIND 1963 SC
25] [LNIND 1963 SC 25], KM Shanmugam v S R V S Pvt Ltd (1964) 2 SCJ.120.
9 Ie under the Companies Act 1956 s 314(1)(B) read with s 637 A.
10 Rampur Distillery and Chemical Co Ltd v Company Law Board AIR 1970 SC 1789 [LNIND 1969 SC 307] [LNIND 1969 SC
307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law Board [1970] 2 SCR 177 [LNIND 1969 SC
307] [LNIND 1969 SC 307] [LNIND 1969 SC 307], Rampur Distillery and Chemical Co Ltd v Company Law Board (1970) 2 SCJ
89.
11 Code of Civil Procedure 1908 s 86(1).
12 Ie the Code of Civil Procedure s 86(6); Shanti Prasad Agarwalla v Union of India AIR 1991 SC 814 [LNIND 1962 SC 6]
[LNIND 1962 SC 6] [LNIND 1962 SC 6], Shanti Prasad Agarwalla v Union of India (1991) 2 SCC (Supp) 296; Harbhajan Singh
Dhalla v Union of India AIR 1987 SC 9 [LNIND 1986 SC 420] [LNIND 1986 SC 420] [LNIND 1986 SC 420], Harbhajan Singh
Dhalla v Union of India (1986) 4 SCC 678 [LNIND 1986 SC 420] [LNIND 1986 SC 420] [LNIND 1986 SC 420], Harbhajan Singh
Dhalla v Union of India (1987) 1 SCJ 18; see also Mirza Ali Akbar Kashani v United Arab Repulic AIR 1966 SC 230 [LNIND
1965 SC 180] [LNIND 1965 SC 180] [LNIND 1965 SC 180], Mirza Ali Akbar Kashani v United Arab Repulic (1966) 2 SCJ 25
[LNIND 1965 SC 180] [LNIND 1965 SC 180] [LNIND 1965 SC 180], Mirza Ali Akbar Kashani v United Arab Repulic [1966] 1
13 See Imports and Exports (Control) Act 1947,s 3, 5 and 6.
14 Pioneer Scrap Traders and Exporters v O G Eapen AIR 1963 Bom 50 [LNIND 1962 BOM 17] [LNIND 1962 BOM 17]
[LNIND 1962 BOM 17], Pioneer Scrap Traders and Exporters v O G Eapen (1962) 64 Bom LR 534, Pioneer Scrap Traders and
Exporters v O G Eapen (1962) Nagpur LJ 647.
15 Industrial Disputes Act 1947 s 12(5) read with s 10.
16 State of Bombay v K P Krishnan AIR 1960 SC 1223 [LNIND 1960 SC 125] [LNIND 1960 SC 125] [LNIND 1960 SC 125],
State of Bombay v K P Krishnan (1960) 2 SCA 527, State of Bombay v K P Krishnan (1960) 2 Lab LJ 592; V Veerarajan v
State of Tamil Nadu AIR 1987 SC 695 [LNIND 1987 SC 49] [LNIND 1987 SC 49] [LNIND 1987 SC 49], V Veerarajan v State of
Tamil Nadu (1987) 1 SCC 479 [LNIND 1987 SC 49] [LNIND 1987 SC 49] [LNIND 1987 SC 49], V Veerarajan v State of Tamil
Nadu (1987) 1 SCJ 422.
17 State of Uttar Pradesh v Raja Ram Jaiswal AIR 1985 SC 1108 [LNIND 1985 SC 154] [LNIND 1985 SC 154] [LNIND 1985
SC 154], State of Uttar Pradesh v Raja Ram Jaiswal (1985) 3 SCC 131 [LNIND 1985 SC 154] [LNIND 1985 SC 154] [LNIND
1985 SC 154], State of Uttar Pradesh v Raja Ram Jaiswal [1985] 3 SCR 1021 [LNIND 1985 SC 154] [LNIND 1985 SC 154]
[LNIND 1985 SC 154]; State of Gujarat v Krishna Cinema AIR 1971 SC 1650 [LNIND 1970 SC 358] [LNIND 1970 SC 358]
[LNIND 1970 SC 358], State of Gujarat v Krishna Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358] [LNIND 1970 SC 358]
[LNIND 1970 SC 358], State of Gujarat v Krishna Cinema (1971) 2 SCJ 25 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND
1970 SC 358].
271
Page 80
18 Ie the Land Acquisition Act 1894 s 4.
19 Collector, Allahabad v Raja Ram Jaiswal AIR 1985 SC 1622 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC
155], Collector, Allahabad v Raja Ram Jaiswal (1985) 3 SCC 1 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC
155], Collector, Allahabad v Raja Ram Jaiswal [1985] 3 SCR 995 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985 SC
155].
20 Ie under the Companies Act 1956 s 236.
21 Barium Chemicals Ltd v Company Law Board AIR 1967 SC 295 [LNIND 1966 SC 132] [LNIND 1966 SC 132] [LNIND 1966
SC 132], Barium Chemicals Ltd v Company Law Board (1966) 2 SCJ 623, Barium Chemicals Ltd v Company Law Board (1966)
1 SCA 747.
22 Ie the Essential Commodities Act 1955 ss 3(3)(C), 3(2)(f)and3(3C).
152].
24 Union of India v Kamalabhai Harjivandas Parekh AIR 1968 SC 377 [LNIND 1967 SC 261] [LNIND 1967 SC 261] [LNIND
1967 SC 261], Union of India v Kamalabhai Harjivandas Parekh [1968] 1 SCR 463 [LNIND 1967 SC 261] [LNIND 1967 SC 261]
[LNIND 1967 SC 261], Union of India v Kamalabhai Harjivandas Parekh (1968) 2 SCJ 114 [LNIND 1967 SC 261] [LNIND 1967
SC 261] [LNIND 1967 SC 261]; State of Karnataka v Ranganath Reddy AIR 1978 SC 215, State of Karnataka v Ranganath
Reddy (1977) 4 SCC 471, State of Karnataka v Ranganath Reddy [1978] 1 SCR 641; Saraswati Industrial Syndicate Ltd v
Industrial Syndicate Ltd v Union of India (1974) SCD 913; see India Cement Ltd v Union of India AIR 1991 SC 724 [LNIND
1990 SC 435] [LNIND 1990 SC 435] [LNIND 1990 SC 435], India Cement Ltd v Union of India (1990) 4 SCC 356 [LNIND 1990
SC 435] [LNIND 1990 SC 435] [LNIND 1990 SC 435], India Cement Ltd v Union of India [1990] 3 SCR 850 [LNIND 1990 SC
435] [LNIND 1990 SC 435] [LNIND 1990 SC 435].
25 See State of Uttar Pradesh v Renusagar Power Co AIR 1988 SC 1737 [LNIND 1988 SC 619] [LNIND 1988 SC 619] [LNIND
1988 SC 619], State of Uttar Pradesh v Renusagar Power Co (1988) 4 SCC 59 [LNIND 1988 SC 619] [LNIND 1988 SC 619]
[LNIND 1988 SC 619], State of Uttar Pradesh v Renusagar Power Co [1988] Supp 1 SCR 627.
26 Baldev Raj Chadha v Union of India AIR 1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333],
Baldev Raj Chadha v Union of India [1981] 1 SCR 430 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333],
Baldev Raj Chadha v Union of India (1981) 1 SCJ 293; see also doctrine of excessive delegation [005.183].
27 D Ramaswami v State of Tamil Nadu AIR 1982 SC 793 [LNIND 1982 SC 30] [LNIND 1982 SC 30] [LNIND 1982 SC 30], D
Ramaswami v State of Tamil Nadu (1982) 1 SCC 510 [LNIND 1982 SC 30] [LNIND 1982 SC 30] [LNIND 1982 SC 30], D
Ramaswami v State of Tamil Nadu (1982) 1 SCJ 203; Brij Mohan Singh Chopra v State of Punjab AIR 1987 SC 948 [LNIND
1987 SC 275] [LNIND 1987 SC 275] [LNIND 1987 SC 275], Brij Mohan Singh Chopra v State of Punjab (1987) 2 SCC 188
[LNIND 1987 SC 275] [LNIND 1987 SC 275] [LNIND 1987 SC 275], Brij Mohan Singh Chopra v State of Punjab (1987) 2 SCJ
380; Baidyanath Mahapatra v State of Orissa AIR 1989 SC 2218 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC
398], Baidyanath Mahapatra v State of Orissa (1989) 4 SCC 664 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC
398], Baidyanath Mahapatra v State of Orissa [1989] 3 SCR 803 [LNIND 1989 SC 398] [LNIND 1989 SC 398] [LNIND 1989 SC
398]; J D Srivastava v State of Madhya Pradesh AIR 1984 SC 630 [LNIND 1984 SC 22] [LNIND 1984 SC 22] [LNIND 1984 SC
22], J D Srivastava v State of Madhya Pradesh (1984) 2 SCC 8 [LNIND 1984 SC 22] [LNIND 1984 SC 22] [LNIND 1984 SC 22],
J D Srivastava v State of Madhya Pradesh (1984) SCC (Lab) 206; State of Sikkim v Sonam Lama AIR 1991 SC 534, State of
Sikkim v Sonam Lama (1991) SCC (Lab) 919, State of Sikkim v Sonam Lama 1991 Lab IC 30.
28 Appanna v State of Karnataka AIR 1980 Kant 113, Appanna v State of Karnataka (1980) 2 Kant LJ 92; Baldev Raj Chadha
v Union of India AIR 1981 SC 70 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333], Baldev Raj Chadha v
Union of India [1981] 1 SCR 430 [LNIND 1980 SC 333] [LNIND 1980 SC 333] [LNIND 1980 SC 333], Baldev Raj Chadha v
Union of India (1981) 1 SCJ 293 (the Supreme Court has emphasized that the appropriate authority must form the requisite
objective and bona fide opinion, based on relevant material. An order which materially suffers from the blemish of overlooking or
ignoring wilfully or otherwise, vital facts bearing on the decision is bad in law and any action which irrationally digs up obsolete
circumstances and obsessively reaches a decision based thereon, Cannot be sustained. Legality depends on regard of the
totality of material facts viewed in a holistic perspective).
29 Gangasaran & Sons v Income-tax Officer AIR 1981 SC 1363 [LNIND 1981 SC 251] [LNIND 1981 SC 251] [LNIND 1981 SC
251], Gangasaran & Sons v Income-tax Officer (1981) 3 SCC 143 [LNIND 1981 SC 251] [LNIND 1981 SC 251] [LNIND 1981
SC 251], Gangasaran & Sons v Income-tax Officer (1981) UJ (SC) 533; see also substantive ultra vires [005.186].
30 Nepal Singh v State of Uttar Pradesh AIR 1985 SC 84 [LNIND 1984 SC 392] [LNIND 1984 SC 392] [LNIND 1984 SC 392],
Nepal Singh v State of Uttar Pradesh (1985) 1 SCC 56 [LNIND 1980 SC 186] [LNIND 1980 SC 186] [LNIND 1980 SC 186],
Nepal Singh v State of Uttar Pradesh [1985] 2 SCR 1 [LNIND 1984 SC 392] [LNIND 1984 SC 392] [LNIND 1984 SC 392].
31 Dahanu Taluka Environment Protection Group v Bombay Suburban Electricity Supply Company Ltd 1991 2 SCC 539; see
272
Page 81
Rural Litigation and Entitlement Kendra v State of Uttar Pradesh AIR 1987 SC 359 [LNIND 1986 SC 525] [LNIND 1986 SC 525]
[LNIND 1986 SC 525], Rural Litigation and Entitlement Kendra v State of Uttar Pradesh (1986) Supp SCC 581 [LNIND 1986 SC
463] [LNIND 1986 SC 463] [LNIND 1986 SC 463], Rural Litigation and Entitlement Kendra v State of Uttar Pradesh (1987) 1
SCJ 337; Bombay Environmental Action Group v State of Maharashtra AIR 1991 Bom 301 [LNIND 1990 BOM 669] [LNIND
1990 BOM 669] [LNIND 1990 BOM 669], Bombay Environmental Action Group v State of Maharashtra (1991) 2 Bom CR 541
[LNIND 1990 BOM 669] [LNIND 1990 BOM 669] [LNIND 1990 BOM 669].
32 See State of Maharashtra v Babulal Kirparam AIR 1967 SC 1353 [LNIND 1967 SC 32] [LNIND 1967 SC 32] [LNIND 1967
SC 32], See State of Maharashtra v Babulal Kirparam [1967] 2 SCR 583 [LNIND 1967 SC 32] [LNIND 1967 SC 32] [LNIND
1967 SC 32]; Swarn Singh v State of Punjab AIR 1976 SC 232, Swarn Singh v State of Punjab (1976) 2 SCC 868, Swarn
Singh v State of Punjab (1976) 2 SCJ 303; State of Orissa v Bidyabhushan Mohapatra AIR 1963 SC 779 [LNIND 1962 SC 340]
[LNIND 1962 SC 340] [LNIND 1962 SC 340], State of Orissa v Bidyabhushan Mohapatra (1963) 1 Lab LJ 239 [LNIND 1962 SC
340] [LNIND 1962 SC 340] [LNIND 1962 SC 340], State of Orissa v Bidyabhushan Mohapatra 29 Cut LT 302.
33 State of Mysore v K Chandrasekhara Adiga AIR 1976 SC 853, State of Mysore v K Chandrasekhara Adiga (1976) 2 SCC
495, State of Mysore v K Chandrasekhara Adiga (1976) UJ 231 (SC); Mahboob Sheriff v Mysore State Transport Authority AIR
1960 SC 321 [LNIND 1959 SC 199] [LNIND 1959 SC 199] [LNIND 1959 SC 199], Mahboob Sheriff v Mysore State Transport
Authority [1960] 2 SCR 146 [LNIND 1959 SC 199] [LNIND 1959 SC 199] [LNIND 1959 SC 199], Mahboob Sheriff v Mysore
State Transport Authority (1960) SCJ 402.
34 State of Uttar Pradesh v Chandra Mohan Nigam AIR 1977 SC 2411 (an order of dismissal of a civil servant based on
several findings by the disciplinary administrative tribunal of which certain rules and not all, could be sustained was
nevertheless, upheld on the ground that the power of the government to impose appropriate punishment was final. If the order
could be supported on any finding as to the civil servant being guilty of grave delinquency for which the punishment could
lawfully be imposed, it was not for the court to consider whether that ground alone would have weighed with the authority in
dismissing the public servant).
35 State of Uttar Pradesh v Chandra Mohan Nigam AIR 1977 SC 2411.
36 Shibbanlal Lal Saksena v State of Uttar Pradesh AIR 1954 SC 179 [LNIND 1953 SC 110] [LNIND 1953 SC 110] [LNIND
1953 SC 110], Shibbanlal Lal Saksena v State of Uttar Pradesh [1954] SCR 418 [LNIND 1979 SC 400] [LNIND 1979 SC 400]
[LNIND 1979 SC 400], Shibbanlal Lal Saksena v State of Uttar Pradesh (1954) SCJ 73; Dwarika Prasad v State of Bihar AIR
1957 SC 134, Dwarika Prasad v State of Bihar (1975) 3 SCC 722 [LNIND 1974 SC 359] [LNIND 1974 SC 359] [LNIND 1974 SC
359], Dwarika Prasad v State of Bihar (1975) SCC (Cri)177; Kamlakar Prasad Chaturvedi v State of Madhya Pradesh AIR 1984
SC 211 [LNIND 1983 SC 295] [LNIND 1983 SC 295] [LNIND 1983 SC 295], Kamlakar Prasad Chaturvedi v State of Madhya
Pradesh (1983) 4 SCC 443 [LNIND 1983 SC 295] [LNIND 1983 SC 295] [LNIND 1983 SC 295], Kamlakar Prasad Chaturvedi v
State of Madhya Pradesh [1984] 1 SCR 317 [LNIND 1983 SC 295] [LNIND 1983 SC 295] [LNIND 1983 SC 295] (in cases of
preventive detention, the courts adopt a strict view of the matter that an order would be invalid if based on any irrelevant ground
along with relevant grounds. On the ground that an order of preventive detention affected the valuable right of personal freedom
and, thus, the courts demand a much higher standard from an authority in exercising its power to detain a person than in any
other area).
37 Sita Ram Somani v State of Rajasthan AIR 1986 SC 1072 [LNIND 1986 SC 33] [LNIND 1986 SC 33] [LNIND 1986 SC 33],
Sita Ram Somani v State of Rajasthan (1986) 2 SCC 86 [LNIND 1986 SC 33] [LNIND 1986 SC 33] [LNIND 1986 SC 33], Sita
Ram Somani v State of Rajasthan (1986) SCC (Cr) 104; Anant Sakharam Raut v State of Maharashtra AIR 1987 SC 137
[LNIND 1986 SC 450] [LNIND 1986 SC 450] [LNIND 1986 SC 450], Anant Sakharam Raut v State of Maharashtra (1986) 4
SCC 771 [LNIND 1986 SC 450] [LNIND 1986 SC 450] [LNIND 1986 SC 450], Anant Sakharam Raut v State of Maharashtra
(1986) SCC (Cri) 535; see Kanchanlal Maneklal Choksi v State of Gujarat AIR 1979 SC 1945 [LNIND 1979 SC 289] [LNIND
1979 SC 289] [LNIND 1979 SC 289], Kanchanlal Maneklal Choksi v State of Gujarat (1979) 4 SCC 14 [LNIND 1979 SC 289]
[LNIND 1979 SC 289] [LNIND 1979 SC 289], Kanchanlal Maneklal Choksi v State of Gujarat (1979) SCC (Cri) 897 [LNIND
1979 SC 289] [LNIND 1979 SC 289] [LNIND 1979 SC 289]; Ashadevi v K Shivraj AIR 1979 SC 447 [LNIND 1978 SC 315]
[LNIND 1978 SC 315] [LNIND 1978 SC 315], Ashadevi v K Shivraj [1979] 2 SCR 215 [LNIND 1978 SC 315] [LNIND 1978 SC
315] [LNIND 1978 SC 315], Ashadevi v K Shivraj (1979) 1 SCJ 538 [LNIND 1978 SC 315] [LNIND 1978 SC 315] [LNIND 1978
SC 315]; see also Lal Kamal Das v State of West Bengal AIR 1975 SC 753, Lal Kamal Das v State of West Bengal (1975) 4
SCC 62, Lal Kamal Das v State of West Bengal (1975) Cr LJ 630.
38 Ie the Conservation of Foreign Exchange and Prevention of Smuggling Act 1974 s 5A; State of Gujarat v Chamanlal
Manjibhai Soni AIR 1981 SC 1480 [LNIND 1981 SC 10] [LNIND 1981 SC 10] [LNIND 1981 SC 10], State of Gujarat v
Chamanlal Manjibhai Soni (1981) 2 SCC 24 [LNIND 1981 SC 10] [LNIND 1981 SC 10] [LNIND 1981 SC 10], State of Gujarat v
Chamanlal Manjibhai Soni (1981) SCC (Cri) 311 [LNIND 1981 SC 10] [LNIND 1981 SC 10] [LNIND 1981 SC 10].

POWERS/[005.193] Improper purpose and irrelevant considerations interchangeable
273
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[005.193] Improper purpose and irrelevant considerations interchangeable The difference between a
power exercised for an improper purpose1 and one exercised on irrelevant considerations2 is imperceptible3.
When an exercise of discretion is invalidated on the ground that the authority concerned pursued an
improper purpose, the same can also, at times, be held invalid on the ground that the authority took into
account irrelevant considerations. For instance, where land is acquired by an authority ostensibly for itself
but really for another authority, the power may be said to be exercised, in one sense, for an improper
purpose, but in another sense, after the authority took into consideration an irrelevant factor, namely,
acquisition of land for another authority, the consideration for the administrative action being acquisition for
itself4.
Similarly, where the government refused to refer an industrial dispute for adjudication, it may be said that it
either acted for an improper purpose or that it took into account irrelevant considerations5. Furthermore,
where the power to acquire land is exercised for an extraneous purpose, the order of land acquisition could
be quashed either on the ground of improper purpose or irrelevant considerations6.
1 As to improper use see [005.191].
3 Taylor, Judicial Review of Improper Purpose and Irrelevant Considerations, In Re (1976) 36 Camb LJ 272.
4 See R K Agarwalla v State of West Bengal AIR 1965 SC 995 [LNIND 1964 SC 641] [LNIND 1964 SC 641] [LNIND 1964 SC
641], R K Agarwalla v State of West Bengal (1965) 1 SCA 606, R K Agarwalla v State of West Bengal (1965) 2 SCWR 33.
5 See State of Bombay v K P Krishnan AIR 1960 SC 1223 [LNIND 1960 SC 125] [LNIND 1960 SC 125] [LNIND 1960 SC 125],
State of Bombay v K P Krishnan (1960) 2 SCA 527, State of Bombay v K P Krishnan (1960) 2 Lab LJ 592: [005.192].
6 See Collector, Allahabad v Raja Ram Jaiswal AIR 1985 SC 1622 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985
SC 155], Collector, Allahabad v Raja Ram Jaiswal (1985) 3 SCC 1 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985
SC 155], Collector, Allahabad v Raja Ram Jaiswal [1985] 3 SCR 995 [LNIND 1985 SC 155] [LNIND 1985 SC 155] [LNIND 1985
SC 155].

POWERS/[005.194] Absence of cogent material
[005.194] Absence of cogent material Absence of material, upon which the authority could have formed
the requisite subjective opinion, is indicative of the authority having passed the order without applying its
mind1. Hence, that order will be invalid2.
Although the court cannot examine the adequacy or sufficiency of the material or evidence, to ascertain if the
requisite satisfaction can be reached on the basis of such material or evidence, the court can question the
existence of the material or evidence for the formation of the requisite opinion3. For instance, orders of
termination and compulsory retirement passed without any material to substantiate the allegations can be
quashed4.
The Constitution provides that a member of the civil service can be removed without the requisite inquiry5, if
the dismissing authority is satisfied, that for some reason, it is not reasonably practicable to hold such
inquiry6. Where the satisfaction of the concerned authority is questioned in a court of law, it is incumbent on
those who support the order to show that the satisfaction is based on certain objective facts and is not the
outcome of the whim or caprice of the concerned officer7. Hence, an authority acting in its subjective
satisfaction, must form its opinion on the basis of cogent material8. The satisfaction must be based upon
reasonable grounds and the authority may act on direct or circumstantial evidence and not on suspicion,
gossip or rumor9.
274
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An order of take over of a concern, passed under the Industries (Development & Regulation) Act 195110,
without the basis of any material, is liable to be quashed11.
The Foreign Exchange Regulation Act 1947 authorises the Director of Enforcement to send a case to the
court for trial when, during the course of the inquiry by him, he is of the opinion that, the penalty which he is
empowered to impose would not be adequate12. However, the Director can form the abovementioned
opinion only on the basis of material placed before him13.
In the instant case, an inquiry had been instituted by issuing a show cause notice. No material came before
the Director after the notice which could be relevant for forming an opinion by the Director that the penalty
which he could impose for the contravention would not be adequate. The party concerned had not shown
any cause in pursuance of the notice and there was thus no material at all available to the Director on the
basis of which he could form the requisite opinion to refer the case to the court. The Supreme Court
therefore quashed the order of the Director referring the appellant's case to the court for trial.
1 As to application of mind see [005.017].
2 Rohtas Industries v SD Agarwal AIR 1969 SC 707 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428],
Rohtas Industries v SD Agarwal (1969) 1 SCC 325 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428], Rohtas
Industries v SD Agarwal (1969) 2 SCJ 1.
3 Coleen Properties Ltd v Minister of Housing and Local Government [1971] 1 All ER 1049, Coleen Properties Ltd v Minister of
Housing and Local Government [1971] 1 WLR 433 CA,; see Pushpadevi M Jatia v ML Wadhavan AIR 1987 SC 1156,
Pushpadevi M Jatia v ML Wadhavan (1986) Supp SCC 535, Pushpadevi M Jatia v ML Wadhavan (1987) Cr LR 9; Nasir
Ahmed v Asst Custodian General, Evacuee Property AIR 1980 SC 1157 [LNIND 1980 SC 149] [LNIND 1980 SC 149] [LNIND
1980 SC 149], Nasir Ahmed v Asst Custodian General, Evacuee Property (1980) 3 SCC 1 [LNIND 1980 SC 149] [LNIND 1980
SC 149] [LNIND 1980 SC 149], Nasir Ahmed v Asst Custodian General, Evacuee Property (1980) 1 SCJ 546; S R
Venkataraman v Union of India AIR 1979 SC 49, S R Venkataraman v Union of India (1979) 2 SCC 491, S R Venkataraman v
Union of India [1979] 2 SCR 1114 (if there is no material on the basis of which a reasonable person can arrive at a decision,
then the subjective decision cannot be sustained).
4 Registrar, High Court of Madras v R Rajiah AIR 1988 SC 1388 [LNIND 1988 SC 920] [LNIND 1988 SC 920] [LNIND 1988 SC
920], Registrar, High Court of Madras v R Rajiah (1988) 3 SCC 211 [LNIND 1988 SC 920] [LNIND 1988 SC 920] [LNIND 1988
SC 920], Registrar, High Court of Madras v R Rajiah [1988] Supp 1 SCR 332; Hari Shankar Sharma v Comr, Agra Division,
Agra AIR 1987 SC 556, Hari Shankar Sharma v Comr, Agra Division, Agra (1987) 1 SCC 262, Hari Shankar Sharma v Comr,
Agra Division, Agra (1986) 2 Scale 1089; D Ramaswami v State of Tamil Nadu AIR 1982 SC 793 [LNIND 1982 SC 30] [LNIND
1982 SC 30] [LNIND 1982 SC 30], D Ramaswami v State of Tamil Nadu (1982) 1 SCC 510 [LNIND 1982 SC 30] [LNIND 1982
SC 30] [LNIND 1982 SC 30], D Ramaswami v State of Tamil Nadu (1982) 1 SCJ 203; SS Saksena v State of Uttar Pradesh
[1980] 1 SCR 923 [LNIND 1979 SC 400] [LNIND 1979 SC 400] [LNIND 1979 SC 400]; Manager, Government Branch Press v
D B Belliappa AIR 1979 SC 429 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND 1978 SC 364], Manager, Government
Branch Press v D B Belliappa (1979) 1 SCC 477 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND 1978 SC 364], Manager,
Government Branch Press v D B Belliappa [1979] 2 SCR 458 [LNIND 1978 SC 364] [LNIND 1978 SC 364] [LNIND 1978 SC
364]; see HC Gargi v State of Haryana AIR 1987 SC 65, HC Gargi v State of Haryana (1986) 4 SCC 158, HC Gargi v State of
Haryana (1986) SCC (Lab) 738 (The question was not that of adequacy or sufficiency of material to support the impugned
order; but was that of there being no material to justify the order in question:A high court in deciding to compulsorily retire a
member of the state judicial service must base its conclusion on materials).
5 Ie under the Constitution of India art 311(2). See generally[80] constitutional law.
6 Ie under the Constitution of India art 311(2)(b).
7 Jaswant Singh v State of Punjab AIR 1991 SC 385 [LNIND 1990 SC 743] [LNIND 1990 SC 743] [LNIND 1990 SC 743],
Jaswant Singh v State of Punjab AIR 1991 SCW 17, Jaswant Singh v State of Punjab (1991) 1 SCC 362 [LNIND 1990 SC 743]
[LNIND 1990 SC 743] [LNIND 1990 SC 743]; see Union of India v Tulsiram Patel AIR 1985 SC 1416 [LNIND 1985 SC 219]
[LNIND 1985 SC 219] [LNIND 1985 SC 219], Union of India v Tulsiram Patel (1985) 3 SCC 398 [LNIND 1985 SC 219] [LNIND
1985 SC 219] [LNIND 1985 SC 219], Union of India v Tulsiram Patel [1985] Supp 2 SCR 131.
8 Joint Registrar, Co-operative Societies, Madras v Rajagopal AIR 1970 SC 992 [LNIND 1970 SC 191] [LNIND 1970 SC 191]
[LNIND 1970 SC 191]; see Madhya Pradesh Industries Ltd v Income Tax Officer, Nagpur AIR 1970 SC 1011 [LNIND 1970 SC
209] [LNIND 1970 SC 209] [LNIND 1970 SC 209], Madhya Pradesh Industries Ltd v Income Tax Officer, Nagpur 77 ITR 268;
see also Sheonath Singh v The Appellate Asst Comr of Income Tax calcutta AIR 1971 SC 2451 [LNIND 1971 SC 371] [LNIND
1971 SC 371] [LNIND 1971 SC 371], Sheonath Singh v The Appellate Asst Comr of Income Tax calcutta (1971) Tax LR 1747,
Sheonath Singh v The Appellate Asst Comr of Income Tax calcutta (1971) UJ 802(SC). Where a company challenged the
notice issued by the income-tax officer, and the officer filed no affidavit setting out the circumstances under which he formed the
necessary 'belief' to issue the impugned notice, the Supreme Court concluded that it was not possible to justify the Income Tax
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Officer's action.
9 Chungamal Rajpal v S P Chaliha AIR 1971 SC 730 [LNIND 1971 SC 58] [LNIND 1971 SC 58] [LNIND 1971 SC 58],
Chungamal Rajpal v S P Chaliha (1971) 1 SCC 453 [LNIND 1971 SC 58] [LNIND 1971 SC 58] [LNIND 1971 SC 58],
Chungamal Rajpal v S P Chaliha [1971] 3 SCR 442 [LNIND 1971 SC 58] [LNIND 1971 SC 58] [LNIND 1971 SC 58]; Kalyanji
Marji & Co v Comr of Income Tax, West Bengal AIR 1976 SC 203 [LNIND 1975 SC 507] [LNIND 1975 SC 507] [LNIND 1975
SC 507], Kalyanji Marji & Co v Comr of Income Tax, West Bengal (1976) 1 SCC 985 [LNIND 1975 SC 507] [LNIND 1975 SC
507] [LNIND 1975 SC 507], Kalyanji Marji & Co v Comr of Income Tax, West Bengal [1976] 2 SCR 966 [LNIND 1975 SC 507]
[LNIND 1975 SC 507] [LNIND 1975 SC 507].
10 Industries (Development & Regulation) Act 1951 s 18AA(1)(b).
11 Vasantrao Dattaji Dhanwatey v Union of India AIR 1984 Bom 181, Vasantrao Dattaji Dhanwatey v Union of India (1983) ILR
Bom 1222, Vasantrao Dattaji Dhanwatey v Union of India (1983) 85 Bom LR 56.
12 Ie the Foreign Exchange Regulation Act 1947 s 23D(1).
13 Rayala Corpn Ltd Pvt Ltd v Director of Enforcement, New Delhi AIR 1970 SC 494 [LNIND 1969 SC 219] [LNIND 1969 SC
219] [LNIND 1969 SC 219], Rayala Corpn Ltd Pvt Ltd v Director of Enforcement, New Delhi [1970] 1 SCR 639 [LNIND 1969 SC
219] [LNIND 1969 SC 219] [LNIND 1969 SC 219], Rayala Corpn Ltd Pvt Ltd v Director of Enforcement, New Delhi (1970) 1
SCA 100; see also Sheo Nath v Appellate Asst Comr AIR 1971 SC 2451 [LNIND 1971 SC 371] [LNIND 1971 SC 371] [LNIND
1971 SC 371]; (termination of service of a temporary employee without any reason has been held to be arbitrary).

POWERS/[005.195] Misdirection of fact and law
[005.195] Misdirection of fact and law Discretionary power1 excercised by the authority by misconstruing
the limits imposed by law on the scope of power conferred on him will be vitiated. Hence the test of
mis-direction of law is whether the authority has considered the matters according to the right construction of
the statute, and excluded from his consideration, matters that were irrelevant2. Interpretation of the law is the
duty of the courts3 and if the authority misdirects itself in law by adopting a wrong approach and proceeding
on a wrong assumption in fact and law, the court can set aside the order4.
Misdirection as to facts may also vitiate exercise of discretion. Misunderstanding or ignorance of an

established and relevant fact can be a ground for judicial review5. When discretionary powers are entrusted
to the executive by a statute, the courts can examine if the powers are used properly, and not improperly or
mistakenly. 'Mistakenly' means under the influence of a misdirection in fact or in law6. Hence, the court can
inquire whether the judgment has been made upon a proper self-direction as to the facts, and whether the
judgment has not been made upon other facts which ought not to have been taken into account7. If the court
finds that the decision maker did not correctly appraise himself of the facts, the decision may be quashed8.
1 As to discretionary power see [005.182] and following.
2 Secretary of State for Education and Science v Tameside Metropolitan Borough Counci l [1977] AC 1014, Secretary of State
for Education and Science v Tameside Metropolitan Borough Counci l [1976] 3 All ER 665 HL.
3 RL Arora v State of Uttar Pradesh AIR 1962 SC 764 [LNIND 1961 SC 392] [LNIND 1961 SC 392] [LNIND 1961 SC 392], RL
Arora v State of Uttar Pradesh (1962) ILR 2 All 181, RL Arora v State of Uttar Pradesh (1962) 1 SCA 182.
4 Commr of Income Tax, Bombay v Mahindra and Mahindra Ltd AIR 1984 SC 1182 [LNIND 1983 SC 232] [LNIND 1983 SC
232] [LNIND 1983 SC 232], Commr of Income Tax, Bombay v Mahindra and Mahindra Ltd (1983) 4 SCC 392 [LNIND 1983 SC
232] [LNIND 1983 SC 232] [LNIND 1983 SC 232], Commr of Income Tax, Bombay v Mahindra and Mahindra Ltd [1983] 3 SCR
773 [LNIND 1983 SC 232] [LNIND 1983 SC 232] [LNIND 1983 SC 232]; see Hochtief Gammon v State of Orissa AIR 1975 SC
2226 [LNIND 1975 SC 322] [LNIND 1975 SC 322] [LNIND 1975 SC 322], Hochtief Gammon v State of Orissa (1975) 2 SCC
649 [LNIND 1975 SC 322] [LNIND 1975 SC 322] [LNIND 1975 SC 322], Hochtief Gammon v State of Orissa (1975) SCC (Lab)
362.
5 See note 2 above.
6 Laker Airways Ltd v Department of Trade [1977] QB 643, Laker Airways Ltd v Department of Trade [1977] 2 All ER 182.
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7 As to relevant and irrelevant facts see [005.192].
of Gujarat v Krishna Cinema [1971] 2 SCR 110 [LNIND 1970 SC 358] [LNIND 1970 SC 358] [LNIND 1970 SC 358]; see MA
Rasheed v State of Kerala AIR 1975 SC 2249, MA Rasheed v State of Kerala (1974) 2 SCC 687 [LNIND 1974 SC 280] [LNIND
1974 SC 280] [LNIND 1974 SC 280].

POWERS/[005.196] Unreasonableness
[005.196] Unreasonableness The term 'unreasonable' is descriptive of the way in which a public authority
purports to exercise a discretion vested in it by a statute. Although the discretionary power exercised by the
authority may not be ultra vires the statute, the decision can be challenged if it is repugnant to reason1. The
test of unreasonableness, known as 'Wednesbury's test', is that the decision impugned must be such that no
sensible person would reach the same2 or when the decision is looked at objectively, they are so devoid of
any plausible justification that no reasonable body of persons could have reached them3. However, the court
does not enjoy an overriding power to decide what is reasonable and what is unreasonable4. If an authority
exercising discretion lays down a policy which is so unreasonable that no reasonable authority could
entertain it, then it is invalid. However, if the policy is supported by good reasons or is a sound administrative
decision, no exception could be taken to it5.
What is achieved by applying the test of "unreasonableness" may, in many cases, be achieved by pressing
into service the test of 'irrelevant' considerations6, but the test of unreasonableness may add an additional
dimension to the scope of judicial review of a discretionary act7. The courts will quash a discretionary
decision if it is such that no reasonable person would have reached the same on the basis of the material on
which the decision maker has reached the decision8. An action which is oppressive, palpably absurd or
perverse is certainly not reasonable and the test of reasonableness can cover administrative action much
below the line of absurdity9. The opinion is displaced as a relevant opinion if it could not be formed by any
sensible person on the material before him and the courts must enquire whether a reasonable man could
have come to the decision in question without misdirecting himself on the law or the facts in a material
respect10.
1 See Secretary of State for Education and Science v Tameside Metropolitan Borough Council [1977] AC 1014, Secretary of
State for Education and Science v Tameside Metropolitan Borough Council [1976] 3 All ER 665.
Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223, Associated Provincial Picture Houses Ltd v
Wednesbury Corpn [1947] 2 All ER 680 CA,; Lonrho plc v Secretary of State for Trade and Industry [1989] 2 All ER 609,
Lonrho plc v Secretary of State for Trade and Industry [1989] 1 WLR 525 HL,; Wheeler v Leicester City Council [1985] AC
1054, Wheeler v Leicester City Council [1985] 2 All ER 1106.
For comments on Wednesbury, see, GL Peiris, Wednesbury Unreasonableness: The Expanding Canvas [1987] Camb LJ 53;
Jowell & Lester, Beyond Wednesbury: Substantive Principles of Adm. Law, [1987] Public Law 368.
3 Bromley London Borough Council v Greater London Council [1983] 1 AC 768, Bromley London Borough Council v Greater
London Council [1982] 1 All ER 129 HL; Hall & Co Ltd v Shoreham-by-Sea UDC [1964] 1 All ER 1, Hall & Co Ltd v
Shoreham-by-Sea UDC [1964] 1 WLR 240 CA,.
4 See G B Mahajan v Jalagaon Municipal Council AIR 1991 SC 1153 [LNIND 1990 SC 532] [LNIND 1990 SC 532] [LNIND
1990 SC 532], G B Mahajan v Jalagaon Municipal Council (1991) 3 SCC 91 [LNIND 1990 SC 532] [LNIND 1990 SC 532]
[LNIND 1990 SC 532], G B Mahajan v Jalagaon Municipal Council 1990 Supp 3 SCR 20.
5 Cumings v Birkenhead Corpn [1972] Ch 12 at 37-38, Cumings v Birkenhead Corpn [1971] 2 All ER 881: see [005.200].
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6 As to irrelevant considerations see [005.192].
7 See Council of Civil Service Unions v Minister for Civil Service [1985] 1 AC 374.
8 GB Mahajan v Jalagaon Municipal Council AIR 1991 SC 1153 [LNIND 1990 SC 532] [LNIND 1990 SC 532] [LNIND 1990 SC
532], GB Mahajan v Jalagaon Municipal Council (1991) 3 SCC 91 [LNIND 1990 SC 532] [LNIND 1990 SC 532] [LNIND 1990
SC 532], GB Mahajan v Jalagaon Municipal Council 1990 Supp 3 SCR 20; Rohtas Industries v S D Agarwal AIR 1969 SC 707
[LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428], Rohtas Industries v S D Agarwal (1969) 1 SCC 325 [LNIND
1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428], Rohtas Industries v S D Agarwal (1969) 2 SCJ 1; see Tata Cellular
v Union of India AIR 1996 SC 11 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India (1994) 6 SCC 651
[LNIND 1994 SC 665] [LNIND 1994 SC 665].
9 State of Maharashtra v Babulal Kriparam AIR 1967 SC 1353 [LNIND 1967 SC 32] [LNIND 1967 SC 32] [LNIND 1967 SC 32],
State of Maharashtra v Babulal Kriparam (1967) 2 SCR 583 [LNIND 1967 SC 32] [LNIND 1967 SC 32] [LNIND 1967 SC 32];
Comr of Income Tax, Bombay v Mahindra and Mahindra Ltd AIR 1984 SC 1182 [LNIND 1983 SC 232] [LNIND 1983 SC 232]
[LNIND 1983 SC 232], Comr of Income Tax, Bombay v Mahindra and Mahindra Ltd (1983) 4 SCC 392 [LNIND 1983 SC 232]
[LNIND 1983 SC 232] [LNIND 1983 SC 232], Comr of Income Tax, Bombay v Mahindra and Mahindra Ltd [1983] 3 SCR 773
10 MA Rasheed v State of Kerala AIR 1975 SC 2249, MA Rasheed v State of Kerala (1974) 2 SCC 687 [LNIND 1974 SC 280]
[LNIND 1974 SC 280] [LNIND 1974 SC 280]. As to misdirection of fact and law see [005.195].

POWERS/[005.197] Colourable exercise of power
[005.197] Colourable exercise of power Exercising power for purposes not authorized by law is regarded
as colourable exercise of power. However, 'colourable exercise of power' and 'improper purpose' can be
used interchangeably. Hence, acquisition of land by the government, under the Land Acquisition Act, for a
private purpose can be quashed on the grounds of colourable exercise of power or improper purpose. Where
colourable exercise of power is established, the declaration is open to challenge at the instance of the
aggrieved party. Where the government exercises the power for a private purpose or no purpose at all, the
action of the government would be colourable as not being relatable to the power conferred upon it by the
Act and its declaration will be a nullity.
Furthermore, colourable exercise of power is equated with exercise of power for extraneous or irrelevant
considerations or reasons6. Where power is exercised for extraneous or irrelevant considerations or
reasons, it amounts to a colourable exercise of power and the exercise of power is vitiated.
Where the state government, in exercise of its statutory power, replaced the administrator with a committee
of seven members of doubtful integrity, and postponed the elections repeatedly without any reason, the court
characterised the order as being colourable exercise of power7.
Where the state has both the powers, of requisitioning as well as of acquisition, and the state seeks to
acquire property for a permanent purpose, by using its requisitioning power rather than its acquisitioning
power, the government would be acting in colourable exercise of power8.
Although colourable exercise of power has been used in place of malafide action9, mala fide is by itself a
distinct ground to quash a discretionary decision10. Colourable is also used when there is no rational
material on the basis of which the authority could have come to the necessary satisfaction as required by the
law in question, or the grounds of its satisfaction are such that no reasonable person could have possibly
arrived at his satisfaction11.
Whenever the power of detention is used as a substitute for criminal prosecution, the court will condemn the
order of preventive detention on ground of colourable exercise of power by the executive12. An order of
preventive detention made on the ground of the detenu having indulged in a solitary act of wagon breaking
was quashed by the court since the satisfaction of the detaining authority was colourable and could not form
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the basis for passing the order13.

ADMINISTRATIVE LAW/14. DISCRETIONARY POWERS/(3) FAILURE TO EXERCISE
DISCRETION/[005.198] Mechanical exercise of power
[005.198] Mechanical exercise of power An authority cannot be said to exercise the discretion vested in it
by law if it passes an order mechanically, without considering the facts and circumstances of the case before
passing the order1. A preventive detention order issued in a routine manner by the Home Secretary on the
advice of the police without applying his mind2 to the material before him and satisfying himself,
independently of the police recommendation, whether an order of preventive detention was called for or not
in the circumstances of the case amounts to non-exercise of discretion by the concerned authority3.
1 Emperor v Sibnath Banerji AIR 1945 PC 156, Merugu Satyanarayana v State of Andhra Pradesh AIR 1982 SC 1543 [LNIND
1982 SC 148] [LNIND 1982 SC 148] [LNIND 1982 SC 148], Merugu Satyanarayana v State of Andhra Pradesh (1982) 3 SCC
301 [LNIND 1982 SC 148] [LNIND 1982 SC 148] [LNIND 1982 SC 148], Merugu Satyanarayana v State of Andhra Pradesh
[1983] 1 SCR 635 [LNIND 1982 SC 148] [LNIND 1982 SC 148] [LNIND 1982 SC 148]; Nagaraj Shivarao Karjagi v Syndicate
Bank Head Office, Manipal AIR 1991 SC 1507 [LNIND 1991 SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248], Nagaraj
Shivarao Karjagi v Syndicate Bank Head Office, Manipal (1991) 3 SCC 219 [LNIND 1991 SC 248] [LNIND 1991 SC 248]
[LNIND 1991 SC 248], Nagaraj Shivarao Karjagi v Syndicate Bank Head Office, Manipal [1991] 2 SCR 576 [LNIND 1991 SC
248] [LNIND 1991 SC 248] [LNIND 1991 SC 248]; see also Comr of Coal Mines Provident Fund, Dhanbad v J P Lalla AIR 1976
SC 676 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47], Comr of Coal Mines Provident Fund, Dhanbad v J P
Lalla (1976) 1 SCC 964 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47], Comr of Coal Mines Provident Fund,
Dhanbad v J P Lalla [1976] 3 SCR 365 [LNIND 1976 SC 47] [LNIND 1976 SC 47] [LNIND 1976 SC 47].
2 As to non-application of mind see [005.199].
3 Emperor v Sibnath Banerji AIR 1945 PC 156.

DISCRETION/[005.199] Non-application of mind and mechanical exercise of power differentiated
[005.199] Non-application of mind and mechanical exercise of power differentiated Where the authority
concerned acts on the recommendation or suggestion of another person, without reasoning or without
applying its mind to relevant considerations, before taking the impugned action, it amounts to non-application
of mind1.
When the court invalidates an order on the ground that the concerned authority failed to apply its mind to
relevant considerations or materials2, before taking the impugned action, the implicit observation is that
relevant considerations have been ignored and that the authority has failed to consider the matter3.
Under the Advocates Act 1961, if on a receipt of a complaint against an advocate, the state bar council has
reason to believe that the advocate has been guilty of misconduct, it can forward the case to its disciplinary
committee for disposal4. However, while forwarding the case to the disciplinary committee, the bar council
must apply its mind to ascertain whether there is any reason to believe that the advocate concerned has
been guilty of misconduct5.
The following are instances where non-application of mind is a ground to challenge the exercise of
administrative discretion6.
Under the Prevention of Corruption Act 1947, the sanction of the government is necessary for prosecuting a
public servant for certain offences7. The application of the mind of the sanctioning authority must either
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appear from the sanction itself, or must be proved by any other evidence8.
The Estate Duty Act 1953 provides that the Central Government may, on an application of the person
accountable for payment of estate duty, accept any property passing on the death of the deceased in
satisfaction of the estate duty9. However, while the power of the government to accept the property offered is
discretionary, it cannot mechanically refuse to accept such a request and proceed as if its discretion was
unfettered10. The government must consider the application on its merits and exercise sound administrative
judgment11. In the instant case, the accountable person offered a property to the government towards
discharge of his obligation to pay an estate duty by pleading lack of sufficient cash to pay the duty. His
request was rejected without any probe into the matter. The Supreme Court quashed the decision of the
government as there was no proper exercise of the discretion by it and directed it to exercise the discretion
vested in it according to law. The case is thus an example of casual approach and non-application of mind by
the Administration to the matter12.
Where in land acquisition cases, the urgency clause under the Land Acquisition Act 189413 is invoked and
the enquiry under the Act is dispensed with14, without application of the mind to the relevant material,
notification of declaration of acquisition of land15 will be quashed16.
An order of preventive detention can be quashed on the ground of non-application of mind by the detaining
authority. Furthermore, where several grounds are mentioned in the order of detention, non-application of
mind to all the grounds mentioned in the order, would invalidate the order17. The use of "or" instead of"and"
indicates casualness, or non-application of the mind by the authority, or that the authority is not sure as to
which of the grounds is applicable to the detenu in question, and in either case, the order is bad18.
Where a statute mentions that the government may pass an order, if it is of the opinion that it is necessary or
expedient to do so, the formation of the requisite opinion is the condition precedent to the passing of the
order. The onus of establishing the formation of the requisite opinion lies with the government19.
1 Merugu Satyanarayana v State of Andhra Pradesh AIR 1982 SC 1543 [LNIND 1982 SC 148] [LNIND 1982 SC 148] [LNIND
1982 SC 148], Merugu Satyanarayana v State of Andhra Pradesh (1982) 3 SCC 301 [LNIND 1982 SC 148] [LNIND 1982 SC
148] [LNIND 1982 SC 148], Merugu Satyanarayana v State of Andhra Pradesh [1983] 1 SCR 635 [LNIND 1982 SC 148]
[LNIND 1982 SC 148] [LNIND 1982 SC 148]; Ashadevi v K Shivraj AIR 1979 SC 447 [LNIND 1978 SC 315] [LNIND 1978 SC
315] [LNIND 1978 SC 315], Ashadevi v K Shivraj [1979] 2 SCR 215 [LNIND 1978 SC 315] [LNIND 1978 SC 315] [LNIND 1978
SC 315], Ashadevi v K Shivraj (1979) 1 SCJ 538 [LNIND 1978 SC 315] [LNIND 1978 SC 315] [LNIND 1978 SC 315]. See Nasir
Ahmed v Asstt Custodian General, Evacuee Property AIR 1980 SC 1157 [LNIND 1980 SC 149] [LNIND 1980 SC 149] [LNIND
1980 SC 149], Nasir Ahmed v Asstt Custodian General, Evacuee Property (1980) 3 SCC 1 [LNIND 1980 SC 149] [LNIND 1980
SC 149] [LNIND 1980 SC 149], Nasir Ahmed v Asstt Custodian General, Evacuee Property (1980) 1 SCJ 546.
3 See Bal Kalyani v State of Maharashtra AIR 1993 Bom 10, Bal Kalyani v State of Maharashtra (1993) 1 Bank CLR 21.
4 Advocates Act 1961 s 35(1).
5 Nandlal Khodidas Barot v Bar Council of Gujarat AIR 1981 SC 477, Nandlal Khodidas Barot v Bar Council of Gujarat (1980)
SCC (Supp) 318, Nandlal Khodidas Barot v Bar Council of Gujarat (1981) SCC (Cri) 255; see Bar Council of Maharashtra v MV
Dabholkar AIR 1975 SC 2092 [LNIND 1975 SC 272] [LNIND 1975 SC 272] [LNIND 1975 SC 272], Bar Council of Maharashtra v
MV Dabholkar (1975) 2 SCC 702 [LNIND 1975 SC 272] [LNIND 1975 SC 272] [LNIND 1975 SC 272], Bar Council of
Maharashtra v MV Dabholkar [1976] 1 SCR 306 [LNIND 1975 SC 272] [LNIND 1975 SC 272] [LNIND 1975 SC 272].
7 Prevention of Corruption Act 1947 s 6(1).
8 Jaswant Singh v State of Punjab AIR 1958 SC 124 [LNIND 1957 SC 109] [LNIND 1957 SC 109] [LNIND 1957 SC 109],
Jaswant Singh v State of Punjab [1958] SCR 762 [LNIND 1957 SC 109] [LNIND 1957 SC 109] [LNIND 1957 SC 109], Jaswant
Singh v State of Punjab (1958) SCJ 355 [LNIND 1957 SC 109] [LNIND 1957 SC 109] [LNIND 1957 SC 109]; see State v
Banshilal Luhadia AIR 1962 Raj 250 [LNIND 1962 RAJ 124] [LNIND 1962 RAJ 124] [LNIND 1962 RAJ 124], State v Banshilal
Luhadia (1962) ILR 12 Raj 327, State v Banshilal Luhadia (1962) Raj LW 307; see also State of Bihar v PP Sharma AIR 1991
SC 1260 [LNIND 1991 SC 184] [LNIND 1991 SC 184] [LNIND 1991 SC 184], State of Bihar v PP Sharma (1992) Supp 1 SCC
222, State of Bihar v PP Sharma [1991] 2 SCR 1 [LNIND 1991 SC 184] [LNIND 1991 SC 184] [LNIND 1991 SC 184].
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Page 89
9 Ie the Estate Duty Act 1953 s 52.
10 As to fetterring discretion see [005.200].
11 Asst Controller of Estate Duty v Prayag Dass Agarwal AIR 1981 SC 1263 [LNIND 1981 SC 250] [LNIND 1981 SC 250]
[LNIND 1981 SC 250], Asst Controller of Estate Duty v Prayag Dass Agarwal (1981) 3 SCC 181 [LNIND 1981 SC 250] [LNIND
1981 SC 250] [LNIND 1981 SC 250], Asst Controller of Estate Duty v Prayag Dass Agarwal (1981) SCC (Tax) 220.
13 Ie under the Land Acquisition Act 1894 s 17.
14 Ie under the Land Acquisition Act 1894 ss 5Aand4.
15 Ie the Land Acquisition Act 1894 s 6.
16 Chinnamma v State of Tamil Nadu AIR 1986 Mad 55 [LNIND 1984 MAD 415] [LNIND 1984 MAD 415] [LNIND 1984 MAD
415], Chinnamma v State of Tamil Nadu (1985) ILR 3 Mad 97, Chinnamma v State of Tamil Nadu (1985) Writ LR 109 [LNIND
1984 MAD 415] [LNIND 1984 MAD 415] [LNIND 1984 MAD 415].
17 Jagannath Mishra v State of Orissa AIR 1966 SC 1140 [LNIND 1965 SC 396] [LNIND 1965 SC 396] [LNIND 1965 SC 396],
Jagannath Mishra v State of Orissa (1966) 2 SCA 91, Jagannath Mishra v State of Orissa (1966) Cr LJ 817; Binod Bihari
Mahato v State of Bihar AIR 1974 SC 2125 [LNIND 1974 SC 291] [LNIND 1974 SC 291] [LNIND 1974 SC 291], Binod Bihari
Mahato v State of Bihar (1974) Cr LJ 1457.
18 Abhay Shridhar Ambulkar v S V Bhave AIR 1991 SC 397, Abhay Shridhar Ambulkar v S V Bhave AIR 1991 SCW 34, Abhay
Shridhar Ambulkar v S V Bhave (1991) 1 SCC 500; Barium Chemicals Ltd v A J Rana AIR 1972 SC 591 [LNIND 1971 SC 624]
[LNIND 1971 SC 624] [LNIND 1971 SC 624], Barium Chemicals Ltd v A J Rana (1972) 1 SCJ 714, Barium Chemicals Ltd v A J
Rana (1972) 2 SCA 254; New Central Jute Mills v Triloki Nath Kaul AIR 1974 Cal 146 [LNIND 1973 CAL 43] [LNIND 1973 CAL
43] [LNIND 1973 CAL 43].
19 Y Eswariah Choudhary v Government of Andhra Pradesh AIR 1974 AP 96 [LNIND 1973 AP 71] [LNIND 1973 AP 71]
[LNIND 1973 AP 71], Y Eswariah Choudhary v Government of Andhra Pradesh (1974) 1 Andh LT 11; Hamdard Dawakhana v
Union of India AIR 1965 SC 1167 [LNIND 1964 SC 326] [LNIND 1964 SC 326] [LNIND 1964 SC 326], Hamdard Dawakhana v
Union of India [1965] 2 SCR 192 [LNIND 1964 SC 326] [LNIND 1964 SC 326] [LNIND 1964 SC 326]; Chinta Lingam v
Government of India AIR 1971 SC 474 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464], Chinta Lingam v
Government of India (1970) 3 SCC 768 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464], Chinta Lingam v
Government of India [1971] 2 SCR 871 [LNIND 1970 SC 464] [LNIND 1970 SC 464] [LNIND 1970 SC 464].

DISCRETION/[005.200] Fettering discretion by own policies
[005.200] Fettering discretion by own policies Fettering decision, which arises out of non-application of
mind and is bad in law, is a self imposed restraint by the authority on its discretionary powers sought by
announcing policies to regulate the exercise of its discretion and seeking to apply the same in an inflexible
and rigid manner to all cases irrespective of the merits of each individual case1. Adoption of a rule of
practice, by the college principal, to consider only the medical certificates that are filed contemporaneously
with illness for granting exemption from attendance is a fettering decision2.
Under the Foreign Exchange Regulation Act 1973, sale of assets by a non-resident company must be
permitted by the Reserve Bank of India3. Where the Bank, prior to issuing the permission, insists that the
parties seek the approval of the government, it amounts to the Bank imposing a fetter on its own discretion
by following the policy that it would consider the matter only after the sanction of the government was
obtained4.
An administrative body, including a licensing body, which has to consider numerous applications of a similar
kind, is entitled to issue a general policy, provided that it is a reasonable policy which is fair and just to
apply5. Where an authority adopts a general policy, the policy must not preclude him from judging each case
on its merits by considering all the issues which are relevant to that individual case6. If the decision maker or
refuses to listen or indicates in advance his unwillingness to accept any representation, he would be
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unlawfully fettering his discretion7. Hence, an application cannot, automatically or pre emptorily, be refused
because of a policy, howsoever exceptional it may be, since it amounts to failure to carry out the statutory
duty properly8.
Under the Coal Mines Provident Fund and Bonus Schemes Act 1948, an employer can be imposed a penalty
for defaulting in payment of any contribution payable by him of an amount not exceeding 25 per cent of the
amount of the arrears9. However, determination of damages under the Act cannot be a mechanical process
and the concerned authorities are required to allow the defaulting party a reasonable opportunity to be
heard10.
However, the principle that discretionary power ought not to be fettered does not prevent the authority from
issuing a general policy to guide itself as to the manner of exercising its own discretion in individual cases,
provided that such rules or principles are legally relevant to the exercise of its powers, consistent and not
arbitrary capricious or unjust11. Since unregulated discretion leads to arbitrary decisions and absolute
discretion is bad in law, the courts encourage the authority to lay down guidelines to regulate the exercise of
discretionary powers12. Whenever possible, the authorities should be encouraged to lay down some norms
to regulate the exercise of their discretion and, thus, structure their discretion. Moreover, when the authority
has to dispose of a large number of cases of similar kind, or where under a statute cases have to be
disposed of by multiple authorities of the same rank, it may be advisable for an authority to issue a general
policy to achieve consistency, co-ordination and uniformity of approach in similar fact situations13.
Furthermore, the sanction of the authority must not be in breach of the guidelines14.
However, the general policy itself must not be ultra vires the statute15, and that it must be based on relevant,
and not irrelevant, considerations16.
See H Lavender & Son v Minister of Housing and Local Government [1970] 3 All ER 871, H Lavender & Son v Minister of
Housing and Local Government [1970] 1 WLR 1231; Gell v Teja Noora 1903 1 LR Bom 307 (the order of the Minister of
Housing was quashed on the ground that: (i) the Minister followed an inflexible policy in such cases and thus fettered his
discretion by a self-created rule of policy; (ii) the Minister in effect left the making of decision (power for which was vested in
him) to the Minister of Agriculture who under the law had no status to make an effective decision except perhaps in a
consultative capacity.
Both these grounds are variants of the same general principle, ie, nonapplication of the mind to the case by the authority having
the discretion to decide. The court conceded that the Minister is entitled to have a policy and decide an appeal in the context of
that policy for it is his duty to secure 'consistency and continuity in the framing and execution of a national policy with respect to
the use and development of land.
The Minister can, before making a decision, obtain the views of other government departments. But where a Minister is
entrusted by Parliament with the decision of any particular case he must keep that actual decision in the last resort in his own
hands. In the instant case, his decision to refuse permission was solely in pursuance of a policy not to permit minerals in the
reserves to be worked unless the Minister of Agriculture was not opposed to their working.It was the decision of the Minister of
Agriculture not to waive his objection which was decisive in this case. That means that the Minister had by his stated policy
improperly delegated to the Minister of Agriculture the effective decision-making power).
2 Kunkum Khanna v Mother Acquinas, Principal, Jesus and Mary College, Chanakyapuri, Delhi AIR 1976 Del 35, Kunkum
Khanna v Mother Acquinas, Principal, Jesus and Mary College, Chanakyapuri, Delhi (1976) ILR 1 [LNIND 1975 RAJ 99] [LNIND
1975 RAJ 99] [LNIND 1975 RAJ 99] Del 31.
3 Foreign Exchange Regulation Act 1973 s 29.
4 Apeejay Pvt Ltd v Union of India AIR 1978 Cal 577 [LNIND 1978 CAL 148] [LNIND 1978 CAL 148] [LNIND 1978 CAL 148],
Apeejay Pvt Ltd v Union of India (1978) 1 Cal LJ 354 [LNIND 1978 CAL 148] [LNIND 1978 CAL 148] [LNIND 1978 CAL 148],
Apeejay Pvt Ltd v Union of India (1978) Cal HN 323.
5 Sagnata Investments Ltd v Norwich Corpn [1971] 2 QB 614, Sagnata Investments Ltd v Norwich Corpn [1971] 2 All ER 1441
CA,; Cumings v Birkenhead Corpn [1972] Ch 12 at 37-38, Cumings v Birkenhead Corpn [1971] 2 All ER 881; Stringer v
Minister of Housing and Local Government [1971] 1 All ER 65, Stringer v Minister of Housing and Local Government [1970] 1
WLR 1281. As to discretionary powers see [005.182].
6 British Oxygen Co Ltd v Board of Trade [1971] AC 610, British Oxygen Co Ltd v Board of Trade [1970] 3 All ER 165 HL,; Sri
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Rama Sugar Industries v State of Andhra Pradesh AIR 1974 SC 1745 [LNIND 1973 SC 404] [LNIND 1973 SC 404] [LNIND
1973 SC 404], Sri Rama Sugar Industries v State of Andhra Pradesh (1974) 1 SCC 534 [LNIND 1973 SC 404] [LNIND 1973 SC
404] [LNIND 1973 SC 404], Sri Rama Sugar Industries v State of Andhra Pradesh 1974 SCC (Tax) 207. see Hamilton
Industries Pvt Ltd v Board of Trustee, Port of Bombay AIR 1983 Bom 248 [LNIND 1983 BOM 42] [LNIND 1983 BOM 42] [LNIND
1983 BOM 42]; see Security Guards Board for Greater Bombay and Thana District v Security abd Personnel Service Pvt Ltd
AIR 1987 SC 1370 [LNIND 1987 SC 1068] [LNIND 1987 SC 1068] [LNIND 1987 SC 1068].
7 R v Secretary of State for the Home Department, ex p Handscomb 1988 86 Cr App Rep 59 DC, (cf Findlay In Re [1985] AC
318, Findlay In Re [1984] 3 All ER 801 HL,; see R v Secretary of State for the Environment, ex p Brent London Borough
Council [1982] 1 QB 593, R v Secretary of State for the Environment, ex p Brent London Borough Council [1983] 3 All ER 321
DC,; R v Police Complaints Board, ex p Madden [1983] 2 All ER 353, R v Police Complaints Board, ex p Madden [1983] 1 WLR
447; Bromley London Borough Council v Greater London Council [1983] 1 AC 768 at 829-831, Bromley London Borough
Council v Greater London Council [1982] 1 All ER 129 at 165-166 HL,.
8 R v Windsor Licensing Justices, ex p Hodes [1983] 2 All ER 551, R v Windsor Licensing Justices, ex p Hodes [1983] 1 WLR
685 CA,.
9 Ie the Coal Mines Provident Fund and Bonus Schemes Act 1948 s 10 F.
10 Commr of Coal Mines Provident Fund, Dhanbad v JP Lalla AIR 1976 SC 676 [LNIND 1976 SC 47] [LNIND 1976 SC 47]
[LNIND 1976 SC 47], Commr of Coal Mines Provident Fund, Dhanbad v JP Lalla (1976) 1 SCC 964 [LNIND 1976 SC 47]
[LNIND 1976 SC 47] [LNIND 1976 SC 47], Commr of Coal Mines Provident Fund, Dhanbad v JP Lalla [1976] 3 SCR 365
11 R v Torquay Licensing Justices, exp Brockman [1951] 2 KB 784. See excessive delgation [005.183].
12 See State of Maharashtra & Antulay v P B Samant 1982 84 Bom LR 427. Franks Committee Report (1957);
13 Suman Gupta v State of Jammu and Kashmir AIR 1983 1235, Suman Gupta v State of Jammu and Kashmir (1983) 4 SCC
339 [LNIND 1983 SC 257] [LNIND 1983 SC 257] [LNIND 1983 SC 257], Suman Gupta v State of Jammu and Kashmir (1983)
UJ 897 (SC).
14 See Chhotu Singh v State of Maharashtra AIR 1987 SC 2200 [LNIND 1987 SC 664] [LNIND 1987 SC 664] [LNIND 1987 SC
664].
15 As to ultra vires see [005.184] and following.
16 See Cumings v Birkenhead Corpn [1972] Ch 12 at 37-38, Cumings v Birkenhead Corpn [1971] 2 All ER 881; Stringer v
Minister of Housing and Local Government [1971] 1 All ER 65, Stringer v Minister of Housing and Local Government [1970] 1
WLR 1281. As to relevant and irrelevant considerations see [005.192].

DISCRETION/[005.201] Acting under dictation
[005.201] Acting under dictation A statutory power, conferred on the authority, must be exercised in the
prescribed form without being influenced by any interference or dictation or guidance from a superior
authority1. Hence, if an authority hands over its discretion to another body, it acts ultra vires the statute and
such an interference by a person or body extraneous to the power is contrary to the nature of the power
conferred on the authority2. Failure by the authority to exercise the conferred power according to its own
judgment is a clear case of exercise of power on the basis of external dictation3 and amounts to abdication
and surrender of its responsibility4. For instance, when a statute provides that the licensing authority 'subject
to the control of the Government' may either grant or refuse a licence, the primary authority to grant or refuse
the licence is the licensing authority and not the government5. The government, in the abovementioned case,
Can exercise appellate and revisional jurisdiction but not original jurisdiction6. An application for a licence
initially refused by the concerned official and subsequently granted at the direction of the state government,
is invalid7. Similarly, when the concerned official cancels a licence at the behest of the government, the
cancellation would be invalid8.
Hence, an authority exercising jurisdiction under a statute, Cannot adopt the decision of any other body as
his own9. Usurping the power vested in the authority is illegal, and hence the higher authorities do not have
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the power to allocate to themselves the statutory functions vested with the lower authorities10.
An order of preventive detention issued, under the Maintenance of Internal Security Act 197111 under the
dictates of higher authorities, who are not statutorily empowered to dictate, is invalid12. Hence, an order of
preventive detention made on the personal bona fide satisfaction of the authority making it must be based on
relevant material and has to be free from the vice of acting under dictate or a mechanical adoption of views
of a superior authority. Furthermore, an authority invested with power must exercise it for the purpose for
which it has been conferred and not for any collateral purpose13.
The Conduct Rules governing the services of the Central Government provides that no government officer
can in the performance of his official duties, or in the exercise of power conferred on him, act otherwise than
in his best judgment except when he is acting under the direction of his official superior14.
1 Simms Motor Units Ltd v Minister of Labour and National Service [1946] 2 All ER 201 DC,; State of Punjab v Suraj Prakash
Kapur AIR 1963 SC 507 [LNIND 1961 SC 240] [LNIND 1961 SC 240] [LNIND 1961 SC 240]; Nagaraj Shivarao Karjagi v
Syndicate Bank Head Office, Manipal AIR 1991 SC 1507 [LNIND 1991 SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248],
Nagaraj Shivarao Karjagi v Syndicate Bank Head Office, Manipal (1991) 3 SCC 219 [LNIND 1991 SC 248] [LNIND 1991 SC
248] [LNIND 1991 SC 248], Nagaraj Shivarao Karjagi v Syndicate Bank Head Office, Manipal [1991] 2 SCR 576 [LNIND 1991
SC 248] [LNIND 1991 SC 248] [LNIND 1991 SC 248]; S P Kapoor v State of Himachal Pradesh AIR 1981 SC 2181 [LNIND
1981 SC 424] [LNIND 1981 SC 424] [LNIND 1981 SC 424], S P Kapoor v State of Himachal Pradesh (1982) Lab IC 9.
[LNIND 1989 SC 680] [LNIND 1989 SC 680]; see Papanasam Fishermen Co-operative Society v Collector, Thanjavur AIR
1975 Mad 81 [LNIND 1974 MAD 185] [LNIND 1974 MAD 185] [LNIND 1974 MAD 185], Papanasam Fishermen Co-operative
Society v Collector, Thanjavur (1975) 1 Mad LJ 168, Papanasam Fishermen Co-operative Society v Collector, Thanjavur 87
Mad LW 723; Orin Movang v Secretary, Government of Assam AIR 1974 Gau 27
3 Amirudhsinhji v State of Gujarat AIR 1995 SC 2390 [LNIND 1995 SC 777] [LNIND 1995 SC 777] [LNIND 1995 SC 777].
[LNIND 1989 SC 680] [LNIND 1989 SC 680]; Purtabpur Co Ltd v Cane Commissioner of Bihar AIR 1970 SC 1896 [LNIND
1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350], Purtabpur Co Ltd v Cane Commissioner of Bihar [1969] 2 SCR 807
[LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350], Purtabpur Co Ltd v Cane Commissioner of Bihar (1970) 2
SCJ 44 [LNIND 1968 SC 350] [LNIND 1968 SC 350] [LNIND 1968 SC 350] (explaining the position, the Court pointed out that
under the Sugarcane Order, the power was exercisable by the Cane Commissioner. Therefore, he alone should have exercised
the power and not abdicated his responsibility in favour of the State Government or the Chief Minister. It was not proper for the
Chief Minister to have interfered with the Commissioner's functions).
5 D Satya Naranaya Murty v Government of Andhra Pradesh AIR 1979 AP 259 [LNIND 1979 AP 29] [LNIND 1979 AP 29]
[LNIND 1979 AP 29], D Satya Naranaya Murty v Government of Andhra Pradesh (1979) 1 Andh LT 289 [LNIND 1979 AP 29]
[LNIND 1979 AP 29] [LNIND 1979 AP 29], D Satya Naranaya Murty v Government of Andhra Pradesh (1979) 1 APLJ 360;
Visweswara v State of Karnataka AIR 1980 Kant 14 [LNIND 1979 KANT 53] [LNIND 1979 KANT 53] [LNIND 1979 KANT 53],
Visweswara v State of Karnataka (1979) Kant LJ 261.
6 See note 5 above.
7 VP Mohamed Kutty v T Kunhikoya Haji AIR 1988 Ker 33.
8 Commr of Police, Bombay v Gordhandas Bhanji AIR 1952 SC 16 [LNIND 1951 SC 63] [LNIND 1951 SC 63] [LNIND 1951 SC
63], Commr of Police, Bombay v Gordhandas Bhanji [1952] SCR 135 [LNIND 1951 SC 63] [LNIND 1951 SC 63] [LNIND 1951
SC 63], Commr of Police, Bombay v Gordhandas Bhanji (1951) SCJ 803.
9 Mount Corporation v Director of Industries and Commerce in Mysore, Bangalore AIR 1965 Mysore 143; see Roncarelli v
Duplesis, (1959) 16 DLR (2d) 689.
10 Chandrika Jha v State of Bihar AIR 1984 SC 322 [LNIND 1983 SC 317] [LNIND 1983 SC 317] [LNIND 1983 SC 317],
Chandrika Jha v State of Bihar (1984) 2 SCC 41 [LNIND 1983 SC 317] [LNIND 1983 SC 317] [LNIND 1983 SC 317], Chandrika
Jha v State of Bihar (1984) BLJ 92.
11 Ie under the Internal Security Act 1971 s 16A.
12 Raj Prakash Varshney v Additional District Magistrate, New Delhi AIR 1978 Del 17.
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14 Tarlochan Dev Sharma v State of Punjab AIR 2001 SC 2524 [LNIND 2001 SC 1455] [LNIND 2001 SC 1455] [LNIND 2001
SC 1455], Tarlochan Dev Sharma v State of Punjab [2001] 3 LRI 1147, Tarlochan Dev Sharma v State of Punjab (2001) 6 SCC
260 [LNIND 2001 SC 1455] [LNIND 2001 SC 1455] [LNIND 2001 SC 1455] (executive officers may in exercise of their statutory
discretions take into account considerations of public policy and in some context policy of Minister or the Government as a
whole when it is a relevant factor in weighing the policy but they are not absolved from their duty to exercise their personal
judgment in individual cases unless explicitly statutory provision has been made for instructions by a superior to bind them).

ADMINISTRATIVE LAW/15. SUB-DELEGATION OF ADMINISTRATIVE POWERS/(1)
INTRODUCTION/[005.202] Meaning of sub-delegation
[005.202] Meaning of sub-delegation Sub-delegation means transfer or transmission of power from a

superior to a subordinate authority1. However, since the law provides that a discretionary power must be
exercised by the authority on whom it has been conferred and not by anyone else2, sub-delegation of
powers, whether legislative, administrative or judicial, is governed by the doctrine of non-delegation which
means that delegation of power must be authorised expressly or impliedly by law3. For instance, the
Essential Commodities Act empowers the Central Government to delegate power to its own officers, or to the
state governments or their officers4. Where the power to appoint officers is conferred on the executive
council by the University Act, dismissal of the deputy registrar by the vice-Chancellor of the University is held
invalid on the ground that he is not empowered to do so under the Act5.
Hence, sub-delegation not authorised by the parent law is invalid6. Furthermore, the principle of
non-delegation underlines the proposition that an officer cannot ratify an unlawful act of his subordinate, on
the ground that the statutory authority cannot travel beyond the power conferred, and any action without
power has no legal validity7. However, that the doctrine of non-delegation is not applied to sub-delegation of
a ministerial function, since it does not involve exercise of discretion or judgment8. Where a statutory
provision provides that a person may be prosecuted for violation of the law at the instance of the prescribed
officer, the statutory provision is satisfied when the prescribed officer directs a subordinate officer to lodge a
complaint with the police. The prescribed officer, having exercised his discretion to prosecute, Can delegate
the mechanical function of lodging the complaint to the subordinate officer9.
1 Davis, 'Administrative Law Treatise', (1958) p 616.
2 Harichand Aggarwal v Batala Engineering Co Ltd AIR 1969 SC 483 [LNIND 1968 SC 288] [LNIND 1968 SC 288] [LNIND
1968 SC 288]. See Allen, Law and orders, 208 (1956); De Smith, Judicial Review of Administrative Action, 298 (1980); see also
[005.201].
3 Ganpati Singhji v State of Ajmer AIR 1955 SC 188 [LNIND 1954 SC 168] [LNIND 1954 SC 168] [LNIND 1954 SC 168],
Ganpati Singhji v State of Ajmer [1955] 1 SCR 1065 [LNIND 1954 SC 168] [LNIND 1954 SC 168] [LNIND 1954 SC 168],
Ganpati Singhji v State of Ajmer (1955) SCJ 119 [LNIND 1954 SC 168] [LNIND 1954 SC 168] [LNIND 1954 SC 168]; see also
Vine v National Dock Labour Board [1975] AC 488; Ratnagopal v Att Gen [1970] AC 974 (sub-delegation by the committee to its
officer was invalid in law; when the Minister delegated the power to the committee, it was for the committee to exercise the
power, and, on the ordinary principle of 'delegatus non potest delegare', the committee couldnot delegate its power to some
other person or body). As to delegation by express permission and by implication see [005.204].
4 Ie the Essential Commodities Act ss 3 and 5.
5 Marathwada University v Seshrao Balwant Rao Chavan AIR 1989 SC 1582 [LNIND 1989 SC 238] [LNIND 1989 SC 238]
[LNIND 1989 SC 238], Marathwada University v Seshrao Balwant Rao Chavan (1989) 3 SCC 132 [LNIND 1989 SC 238]
[LNIND 1989 SC 238] [LNIND 1989 SC 238], Marathwada University v Seshrao Balwant Rao Chavan (1989) 2 JT 276 (it is a
settled principle that when the Act prescribes a particular body to exercise a power, it must be exercised only by that body; it
cannot be exercised by others unless it is delegated. The law must also provide for such delegation. The official to whom
discretionary power has been entrusted by the legislature must exercise the power himself. The justification underlying this
principle is that when a law confers a discretionary power on a specified authority, it is indicative of the fact that the legislature
has placed trust in the judgment of that authority, and, consequently, it is that authority itself and none else which ought to
discharge the function entrusted to it by law).
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6 See note 5 above.
7 Marathwada University v Seshrao Balwant Rao Chavan AIR 1989 SC 1582 [LNIND 1989 SC 238] [LNIND 1989 SC 238]
[LNIND 1989 SC 238], Marathwada University v Seshrao Balwant Rao Chavan (1989) 3 SCC 132 [LNIND 1989 SC 238]
[LNIND 1989 SC 238] [LNIND 1989 SC 238], Marathwada University v Seshrao Balwant Rao Chavan (1989) 2 JT 276; Tej Pal
Singh v State of Uttar Pradesh AIR 1986 SC 1814 [LNIND 1986 SC 247] [LNIND 1986 SC 247] [LNIND 1986 SC 247], Tej Pal
Singh v State of Uttar Pradesh (1986) 3 SCC 604 [LNIND 1986 SC 247] [LNIND 1986 SC 247] [LNIND 1986 SC 247], Tej Pal
Singh v State of Uttar Pradesh [1986] 3 SCR 428 [LNIND 1986 SC 247] [LNIND 1986 SC 247] [LNIND 1986 SC 247] (the
Allahabad High Court by making rules set up an Administrative Committee to discharge the court's 'control' function over the
subordinate judiciary. The Government passed an order for premature retirement of a district judge on the basis of the
recommendation of the Administrative Judge, one of the members of the Administrative Committee. The Administrative Judge
gave his opinion favouring premature retirement of the district judge without consulting his other colleagues in the
Administrative Committee. The Committee later ratified the order.
The Supreme Court quashed the order as null and void as it had been passed without the approval of the full Administrative
Committee. The Administrative Judge alone could not have so acted as he had no power to do so. The approval was given by
the Administrative Committee ex post facto and this did not validate the order which was void ab initio. The Supreme Court
observed: 'the deviation in this case is not mere irregularity which can be cured by the ex post facto approval given by the
Administrative Committee to the action of the Governor after the order of premature retirement had been passed. The error
committed in this case amounts to an incurable defect amounting to an illegality').
8 State of Karnataka v Adimurthy AIR 1983 SC 822 [LNIND 1983 SC 154] [LNIND 1983 SC 154] [LNIND 1983 SC 154], State
of Karnataka v Adimurthy (1983) 3 SCC 268 [LNIND 1983 SC 154] [LNIND 1983 SC 154] [LNIND 1983 SC 154], State of
Karnataka v Adimurthy [1983] 3 SCR 249 [LNIND 1983 SC 154] [LNIND 1983 SC 154] [LNIND 1983 SC 154].
9 See note 8 above.

INTRODUCTION/[005.203] Sub-delegation differentiated from assistance
[005.203] Sub-delegation differentiated from assistance Sub-delegation of power1 by the authority and
seeking assistance to discharge its functions is distinguished by the belowmentioned illustration. Where a
statutory authority empowers a delegate to undertake preparatory work and to take an initial decision in
matters entrusted to it but retains the power to approve or disapprove the decision, the decision is held to be
valid since the degree of control maintained by the authority is sufficient for it to be regarded as that of the
authority2. Hence, an authority may seek assistance of a subordinate subject to the condition that the final
decision rests with the concerned authority3. When an authority is responsible for taking disciplinary action
against an erring subordinate, appointment of an inquiry officer to investigate the matter, and subsequent
action taken by the disciplinary authority based on the report and other materials tendered by the inquiry
officer, is regarded as assistance4.
Furthermore, when an authority is discharging a judicial or quasi-judicial function, it can seek assistance
provided the power to reach the ultimate decision continues to vest in the concerned authority5. However,
where the concerned authority mechanically exercises his discretionary power, on the suggestion of the
assistant, without the application of mind6, then it is regarded as sub delegation of power and not as a case
of assistance7.
1 As to sub delegation of power see [005.202]. As to express or implied delegation see [005.204].
2 Edwingston Bareh v State of Assam AIR 1966 SC 1220 [LNIND 1965 SC 337] [LNIND 1965 SC 337] [LNIND 1965 SC 337];
Union of India v P K Roy AIR 1968 SC 850 [LNIND 1967 SC 320] [LNIND 1967 SC 320] [LNIND 1967 SC 320], Union of India v
P K Roy [1968] 2 SCR 186 [LNIND 1967 SC 320] [LNIND 1967 SC 320] [LNIND 1967 SC 320], Union of India v P K Roy (1970)
1 LLJ 633 [LNIND 1996 KANT 78] [LNIND 1996 KANT 78] [LNIND 1996 KANT 78].
3 Pradyat Kumar Bose v Chief Justice calcutta High Court AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120]
[LNIND 1955 SC 120], Pradyat Kumar Bose v Chief Justice calcutta High Court [1955] 3 SCR 1331, Pradyat Kumar Bose v
Chief Justice calcutta High Court (1956) SCJ 259.
4 Yoginath D Bagde v State of Maharashtra AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC
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Page 95
827], Yoginath D Bagde v State of Maharashtra (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999
SC 827], Yoginath D Bagde v State of Maharashtra (1999) 7 JT 62 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999
SC 827] (when effective decision-making power continues to vest in the disciplinary authority itself, a procedure involving
appointment of procuring additional information does not indicate delegation of power by the disciplinary authority. The
disciplinary authority should come to its own decision after considering the whole record; mechanical acceptance of the report
of the inquiry officer amounts to delegation of power by the disciplinary authority).
5 Pradyat Kumar Bose v Chief Justice calcutta High Court AIR 1956 SC 285 [LNIND 1955 SC 120] [LNIND 1955 SC 120]
[LNIND 1955 SC 120], Pradyat Kumar Bose v Chief Justice calcutta High Court [1955] 3 SCR 1331, Pradyat Kumar Bose v
Chief Justice calcutta High Court (1956) SCJ 259; Yoginath D Bagde v State of Maharashtra AIR 1999 SC 3734 [LNIND 1999
SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], Yoginath D Bagde v State of Maharashtra (1999) 7 SCC 739 [LNIND
1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], Yoginath D Bagde v State of Maharashtra (1999) 7 JT 62 [LNIND
6 As to non-application of mind see [005.199].
7 Jeffs v New Zealand Dairy Production, [1966] 3 All ER 863; see also Ossein & Gelatin Manufacturers' Assn of India v Modi
Alkalies & Chemicals Ltd AIR 1990 SC 1744 [LNIND 1989 SC 393] [LNIND 1989 SC 393] [LNIND 1989 SC 393], Ossein &
Gelatin Manufacturers' Assn of India v Modi Alkalies & Chemicals Ltd (1989) 4 SCC 264 [LNIND 1989 SC 393] [LNIND 1989
SC 393] [LNIND 1989 SC 393], Ossein & Gelatin Manufacturers' Assn of India v Modi Alkalies & Chemicals Ltd [1989] 3 SCR
815 [LNIND 1989 SC 393] [LNIND 1989 SC 393] [LNIND 1989 SC 393] (under the relevant law, the task of adjudication was
assigned to a Commission. The Commission appointed a committee for the purpose of holding the hearing. After holding the
hearing, the committee sent its report to the Commission on the basis of which it took the decision.
The only material material which the Commission had before it when arriving at its decision was the committee's report. The
members of the Commission other than those who sat on the committee never saw the evidence given at the hearing. The Privy
Council quashed the Commission's decision as it had accepted the committee's report mechanically.
The idea underlying the decision is that the decision-maker must apply his own mind to the evidence on record before deciding
the matter. He must not act mechanically and if he does so, the decision-making power effectively flows to the hearing officer,
and the decision-maker discharges only an empty formality. This amounts to sub-delegation of quasi-judicial power which is not
permissible without the parent statute authorising such sub-delegation).

INTRODUCTION/[005.204] Express and implied delegation
[005.204] Express and implied delegation Express permission to sub-delegate is characterised by the
parent statute containing provisions permitting sub-delegation of power by the authority on whom power is
conferred1. For instance, the Uttar Pradesh (Temporary) Control of Rent and Eviction Act 1947 provides that
no suit may be filed for the eviction of a tenant without the permission either of the district magistrate or any
officer authorised by him to perform any of his functions under the Act. An order granting permission by the
additional district magistrate to whom the case was transferred by the district magistrate for disposal was
held to be validly made2.
Statutory provisions may permit sub-delegation to officers or authorities but not below a certain rank3. For
instance, under the Defence of India Act 1962, the Central Government is empowered to authorise detention
of persons by an authority not below the rank of a district magistrate4. However, where the Act stipulated that
a state government could delegate its powers to any officer or authority subordinate to it5, the power of
preventive detention could be sub-delegated by the state government only to authorities up to the level of
district magistrate6, and hence exercise of such power by an additional district magistrate would not be in
accordance with the law7.
Under the Defence of India Act 1962, the Central Government can sub-delegate the power of requisitioning
property to district magistrates8. Furthermore, under the Code of Criminal Procedure 1973, although an
additional district magistrate is invested with all the powers of a district magistrate9, the power to requisition
is vested only with the district magistrate and an order of requisition of a shop by an additional district
magistrate is invalid10.
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Similarly, a statutory provision may provide that a power may be sub-delegated only to a specified authority
or to define that authority as including specified subordinates11. Hence, the Chief Controller of Imports and
Exports is defined to include a joint chief controller and a deputy chief controller by the Imports (Control)
Order 195512. The Companies Act 1956 empowers the Central Government to sub-delegate its power to the
Company Law Board13.
When power is sub-delegated in pursuance of a statutory provision, it must be done strictly in accordance
with the provisions of the statute, otherwise sub-delegation may be infructuous14. Hence, where power is
conferred on a statutory board, and the board could delegate such powers to the chairman through
regulations, sub-delegation could be effected only by duly made regulations, and not by a simple resolution
passed at a general meeting of the board15.
In the absence of an express statutory provision authorising sub-delegation, the authority on which power is
originally conferred by the statute may be authorised to sub-delegate its power by necessary implication16.
Under the Constitution, control over the subordinate state judiciary vests in the high court and is not
empowered to sub-delegate its power to any other authority17. However, constitution of an administrative
committee18 comprising few judges to exercise control over the subordinate judiciary, in place of the entire
high court, was upheld as valid.
1 As to statutory sub-delegation see [005.204](for instance, the provision permitting sub-delegation to any person or authority is
found in the control orders issued under the Essential Commodities Act 1955).
2 Central Talkies Ltd v Dwarka Prasad AIR 1961 SC 606 [LNIND 1961 SC 20] [LNIND 1961 SC 20] [LNIND 1961 SC 20],
Central Talkies Ltd v Dwarka Prasad [1961] 3 SCR 495 [LNIND 1961 SC 20] [LNIND 1961 SC 20] [LNIND 1961 SC 20], Central
Talkies Ltd v Dwarka Prasad (1962) 2 SCJ 41.
3 Ajaib Singh v State of Punjab AIR 1965 SC 1619 [LNIND 1965 SC 439] [LNIND 1965 SC 439] [LNIND 1965 SC 439], Ajaib
Singh v State of Punjab [1965] 2 SCR 845 [LNIND 1965 SC 439] [LNIND 1965 SC 439] [LNIND 1965 SC 439], Ajaib Singh v
State of Punjab (1965) 2 Cr LJ 553.
4 Ie the Defence of India Act 1962 s 3.
5 Ie the Defence of India Act 1962 s 40.
6 Godavari Shamrao Parulekar v State of Maharashtra AIR 1964 SC 1128 [LNIND 1964 SC 527] [LNIND 1964 SC 527] [LNIND
1964 SC 527], Godavari Shamrao Parulekar v State of Maharashtra [1964] 6 SCR 446 [LNIND 1964 SC 527] [LNIND 1964 SC
527] [LNIND 1964 SC 527], Godavari Shamrao Parulekar v State of Maharashtra (1964) 2 Cr LLJ 222.
7 Ajaib Singh v State of Punjab AIR 1965 SC 1619 [LNIND 1965 SC 439] [LNIND 1965 SC 439] [LNIND 1965 SC 439], Ajaib
Singh v State of Punjab [1965] 2 SCR 845 [LNIND 1965 SC 439] [LNIND 1965 SC 439] [LNIND 1965 SC 439], Ajaib Singh v
State of Punjab (1965) 2 Cr LJ 553.
8 Ie the Defence of India Act 1962.
9 Criminal Procedure Code 1898 s 10(2).
10 Harichand Aggarwal v Batala Engineering Co Ltd AIR 1969 SC 483 [LNIND 1968 SC 288] [LNIND 1968 SC 288] [LNIND
1968 SC 288].
SC 132], Barium Chemicals Ltd v Company Law Board [1966] Supp SCR 311, Barium Chemicals Ltd v Company Law Board
(1966) 2 SCJ 623.
12 Imports (Control) Order 1955.
13 Ie the Companies Act 1956 s 10 E read with Working and Administration of the Companies Act 1956.
SC 106] [LNIND 1974 SC 106].
288
Page 97
SC 106] [LNIND 1974 SC 106]; Union of India v R Dalmia AIR 1975 SC 1017 [LNIND 1975 SC 86] [LNIND 1975 SC 86]
[LNIND 1975 SC 86], Union of India v R Dalmia (1975) 4 SCC 16 [LNIND 1975 SC 86] [LNIND 1975 SC 86] [LNIND 1975 SC
86], Union of India v R Dalmia (1975) SCC (Tax) 179.
16 State of Uttar Pradesh v Batuk Deo Patil Tripathi 1978 2 SCC 102 [LNIND 1978 SC 63] [LNIND 1978 SC 63] [LNIND 1978
SC 63], State of Uttar Pradesh v Batuk Deo Patil Tripathi [1978] 3 SCR 131 [LNIND 1978 SC 63] [LNIND 1978 SC 63] [LNIND
1978 SC 63].

INTRODUCTION/[005.205] Relation between delegator and the sub-delegate
[005.205] Relation between delegator and the sub-delegate When an authority validly sub-delegates its
power to another functionary1, the delegating authority is not divested of its power2. However, the order
passed by the sub-delegate is regarded as the order passed by the delegating authority itself.
The delegating authority does not have the power to review, or rescind, or ratify the order passed by the
sub-delegate in the absence of an express provision to that effect in the parent statute3.
The discretionary power of a sub-delegate cannot be controlled by the dictates of the delegating authority4
on the ground that an officer having discretion must be able to exercise the same without any fetters or
interference5. However, the delegating authority may reserve some power either expressly or by necessary
implication. There are practical reasons as to why the delegating authority ought to be freed from the burden
of supervising the functioning of the sub-delegate. The main objective idea of delegation being to lighten the
work of the delegating authority would be largely frustrated if the authority were to supervise and control the
work of the sub-delegate6.
Further, much control and supervision may stifle subordinate's initiative and sense of responsibility and this
may not be in the interest of administrative efficiency. Then, it is the sub-delegate which is dealing with the
cases and can follow a consistent policy; interference by the delegating authority in any single case, may
result in discrimination. There are thus over-whelming reasons as to why the delegating authority should not
interfere with the subordinate's handling of individual cases in the area sub-delegated to him.
The sub-delegate must act within the parameters of the power sub-delegated to him and cannot act beyond
the scope of the power sub-delegated to him. Any action beyond the power sub-delegated to him will be ultra
vires7.
Where the delegating authority sub-delegates its power to several sub-delegates who decide cases of a
similar nature, issuing general guidelines to them may be helpful in achieving consistency in deciding similar
situations8.
1 As to sub-delegation see [005.202] and following.
2 Godavari Shamrao Parulekar v State of Maharashtra AIR 1964 SC 1128 [LNIND 1964 SC 527] [LNIND 1964 SC 527] [LNIND
1964 SC 527], Godavari Shamrao Parulekar v State of Maharashtra [1964] 6 SCR 446 [LNIND 1964 SC 527] [LNIND 1964 SC
527] [LNIND 1964 SC 527], Godavari Shamrao Parulekar v State of Maharashtra (1964) 2 Cr LJ 222, see also Durga Prasad v
Supdt (Prevention) Central Excise AIR 1966 SC 1209 [LNIND 1965 SC 361] [LNIND 1965 SC 361] [LNIND 1965 SC 361];
Bharat Wools, Ludhiana v State of Punjab AIR 1996 P & H 215, Bharat Wools, Ludhiana v State of Punjab (1997) ILR 1 P & H
121, Bharat Wools, Ludhiana v State of Punjab (1997) 113 Punj LR (the state government on whom the power of detention is
conferred is not denuded of its power by sub-delegating the same to the district magistrates; both the principal authority and the
valid sub-delegatee would have concurrent jurisdiction in the matter).
289
Page 98
3 Roop Chand v State of Punjab AIR 1963 SC 1503 [LNIND 1962 SC 328] [LNIND 1962 SC 328] [LNIND 1962 SC 328](the
state government is empowered to revise the orders of the officers functioning under the Act, and not empowered to review its
own orders; the state government appointed to act as the appellate authority under the East Punjab Holdings (Consolidation
and Prevention of Fragmentation Act 1948 delegated this power to one of its officers under the statute. The Supreme Court
ruled that the order passed by the appellate authority became the order of the state government and, therefore, this government
was disabled from reviewing the order passed by the appellate officer).
4 Blackpool Corporation v Locker [1948] 1 KB 349; Simms Motor Units Ltd v Minister of Labour and National Service [1946] 2
All ER 201 DC, (the Minister of Health sub-delegated his power to requisition houses to the Blackpool Corporation; the Court
ruled that the Minister did not retain any power to issue directions to the corporation in this matter; in the opinion of Scot, LJ, the
principle of agency was not applicable to a case of delegation; the corporation could not be regarded as an agent of the minister
and by delegation the minister had denuded himself of all the power, except that which he had expressly or impliedly reserved
for himself in his sub-delegation to the corporation).
5 As to fettering discretion see [005.200].
6 See Simms Motor Units Ltd v Minister of Labour and National Service [1946] 2 All ER 201 (the minister was authorised under
the law to delegate his power to a designated official; subsequent to the delegation, the minister tried to control the exercise by
the officer of his discretion through administrative directions. The court held that the minister did not have power to limit the
discretion of the official through the instructions; furthermore, the delegating authority would normally be overburdened with
multifarious other duties, the reason which necessitates delegation, it may not develop that expertise to deal with the type of
cases as the sub-delegate would usually acquire by constantly dealing with such cases. Therefore, it would be better if the
sub-delegate is left free to deal with the cases itself).
7 See note 4 above.
8 Friendly, The Federal Administrative Agencies--The Need for Better Definitionof Standards, Ch 7 (1962).

ADMINISTRATIVE LAW/15. SUB-DELEGATION OF ADMINISTRATIVE POWERS/(2) CENTRAL
GOVERNMENT/[005.206] Rules to conduct government business
[005.206] Rules to conduct government business The Constitution vests the executive power of the
Union in the President1. Statutes also confer functions on the President2. However, the law provides that the
President may exercise his executive power either directly or through officers subordinate to him3. A minister
is an officer subordinate to the President4. Furthermore, the council of ministers with the Prime Minister as
the head will collectively aid and advise the President in the exercise of his functions5.
Under the Constitution, the President may frame rules to enable convenient transaction of the business of
the Government of India and for the allocation of the business among the ministers. The rules are known as
Rules of Business6. A draft scheme to nationalise certain bus routes prepared and published under the
Motor Vehicles Act 1939 was challenged on the ground that the opinion requisite under the Act, was not
formed by the state government but by the Secretary of Labour to the Government7. It was held that the
Government can allocate any function, barring those which fall within his discretion, to any minister or official
and hence, the decision of the Secretary was valid8
The formal vesting of executive power in the President does not envisage that he must personally sign all
executive and administrative orders passed by the Central Government9. For instance, dismissal of a civil
servant prescribed by the Constitution10 does not require the President himself to sign the order11. The
President's opinion, satisfaction or decision is constitutionally secured when his ministers arrive at such
opinion, satisfaction or decision12. Any argument that an order could not be made by a minister without a
reference to the President would be untenable13. An appeal to the President by the respondent who was
dismissed from service by the collector of customs, was rejected by the minister of finance, on the ground
that the Constitution conclusively contemplates a constitutional President and any reference to the President
under any rule made under the Constitution must be to the President as the Constitutional head acting with
the aid and advice of the Council of Ministers14.
Orders promulgated by subordinate officers in the name of the President must be authenticated in the
290
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prescribed manner15, and the validity of any document so authenticated cannot be challenged on the ground
that it is not an order or instrument made or executed by the President16.
However the belowmentioned orders, inter alia, must be signed by the President himself17:
(1) promulgation of ordinances18,

(2) proclamation of emergency19,
(3) assent to bills20,
(4) proclamation of rule of a state by the President21.-
1 Constitution of India art 53(1).
2 For instance the Representation of the People Act 1951 s 168 (c).
3 See note 1 above.
4 See Emperor v Sibnath Banerji AIR 1945 PC 156; S N Ghosh v B L Cotton Mills AIR 1959 Cal 552 [LNIND 1959 CAL 51]
[LNIND 1959 CAL 51] [LNIND 1959 CAL 51];.
5 Constitution of India art 74(1): Article 74(1) (the Constitution states that:'there shall be a Council of Minsters with the Prime
Minister at the head to aid and advise the President who shall, in the exercise of his functions, act in accordance with such
advice'; a mechanism is, therefore, sought to be created by which the responsibility for decision-making may pass from the
President to others even though power is formally vested in him. Accordingly, art 53(1) says that the President may exercise his
executive power either directly or through officers subordinate to him.As India has a parliamentary system of government, the
idea behind vesting executive power in the President can never be that the President should personally exercise his powers
and take all decisions himself. Such a task would be physically impossible for him to discharge. It will be constitutionally
undesirable for, in a parliamentary system, the effective decision-making power vests in Ministers who are responsible to
Parliament).
6 Ie under the Constitution of India arts 77(3) and 166(3); Emperor v Sibnath Banerji AIR 1945 PC 156, see also B L Cotton
Mills v State of West Bengal AIR 1967 SC 1145 [LNIND 1967 SC 12] [LNIND 1967 SC 12] [LNIND 1967 SC 12]; Godavari
Shamrao Parulekar v State of Maharashtra AIR 1964 SC 1128 [LNIND 1964 SC 527] [LNIND 1964 SC 527] [LNIND 1964 SC
527], Godavari Shamrao Parulekar v State of Maharashtra [1964] 6 SCR 446 [LNIND 1964 SC 527] [LNIND 1964 SC 527]
[LNIND 1964 SC 527], Godavari Shamrao Parulekar v State of Maharashtra (1964) 2 Cr LJ 222; A Sanjeevi Naidu v State of
Madras AIR 1970 SC 1102 [LNIND 1970 SC 33] [LNIND 1970 SC 33] [LNIND 1970 SC 33], A Sanjeevi Naidu v State of Madras
(1970) 2 SCJ 589, A Sanjeevi Naidu v State of Madras (1970) 2 Mad LJ 98 (the Constitution under art 166(3) authorises the
Governor to allocate amongst its ministers the business of the government).
7 Ie the Motor Vehicles Act 1939 s 68(C).
8 A Sanjeevi Naidu v State of Madras AIR 1970 SC 1102 [LNIND 1970 SC 33] [LNIND 1970 SC 33] [LNIND 1970 SC 33], A
Sanjeevi Naidu v State of Madras (1970) 2 SCJ 589, A Sanjeevi Naidu v State of Madras (1970) 2 Mad LJ 98.
9 Central Secretariat Manual of Office Procedure 1969.
10 Ie under the Constitution of India art 311(2)(c).
11 IG Joshi v State of Gujarat AIR 1968 SC 870 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND 1967 SC 326];.
12 Samsher Singh v Union of India AIR 1974 SC 2192 [LNIND 1974 SC 246] [LNIND 1974 SC 246] [LNIND 1974 SC 246]; see
also Ram Jawaya v State of Punjab AIR 1955 SC 549 [LNIND 1955 SC 123] [LNIND 1955 SC 123] [LNIND 1955 SC 123]; U N
R Rao v Indira Gandhi AIR 1971 SC 1002 [LNIND 1971 SC 179] [LNIND 1971 SC 179] [LNIND 1971 SC 179]; Rustom
Cavasjee Cooper v Union of India AIR 1970 SC 564, Rustom Cavasjee Cooper v Union of India (1970) 1 SCC 248, Rustom
Cavasjee Cooper v Union of India (1970) 1 SCJ 564. G D Zalani v Union of India AIR 1995 SC 1178 [LNIND 1995 SC 1427]
[LNIND 1995 SC 1427] [LNIND 1995 SC 1427], 1189;
14 Union of India v Sripati Ranjan AIR 1975 SC 1755 [LNIND 1975 SC 261] [LNIND 1975 SC 261] [LNIND 1975 SC 261](the
President need not be satisfied personally in exercising the executive power, and as a Constitutional head, the President is only
a formal head; whenever the Constitution requires the 'satisfaction' of the President, it is not his 'personal satisfaction', but, in
the constitutional sense, the 'satisfaction of the Council of Ministers').
15 See Notification No. S.O. 2297, dated 3rd Nov 1958, Gazette of India. As to rules of authentication of order see [005.208].
16 Constitution of India arts 77(1) and 77(2).

291 100
Page
17 Jayantilal A mrathlal Shodhan v FN Rana AIR 1964 SC 648 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963 SC
246], Jayantilal A mrathlal Shodhan v FN Rana (1964) 2 SCA 284 [LNIND 1963 SC 246] [LNIND 1963 SC 246] [LNIND 1963
SC 246], Jayantilal A mrathlal Shodhan v FN Rana (1964) 5 Guj LR 481.

ADMINISTRATIVE LAW/15. SUB-DELEGATION OF ADMINISTRATIVE POWERS/(2) CENTRAL
GOVERNMENT/[005.207] Organisation of the Central Government
[005.207] Organisation of the Central Government Under the Government of India (Allocation of
Business) Rules, the allocation of work of the government will be transacted in the Ministries, Departments,
Secretariats and Offices specified in the Rules1.
The business allotted to a Ministry is normally disposed of by, or under the direction of, the minister in charge
except when it is necessary or desirable to submit a case to the Prime Minister or the Cabinet or any of its
committees. The minister incharge may, by means of a standing order, give such directions to the civil
servants in his Ministry as he thinks fit2. Hence, except such matters as the Minister reserves for his personal
or the Cabinet's consideration, all other matters are disposed of by the civil servants in accordance with the
standing directions of the minister.
However, the decision or order of the civil servant would be regarded as being that of the government3.
1 Government of India (Allocation of Business) Rulesschedule 1and Central Secretariat Manual of Office Procedure 1982 (a
ministry consists of more than one department and a minister is assigned to his charge a ministry, or a part of a ministry, or
more than one ministry. A department is responsible for the formulation of the policies of government within its sphere of
responsibility and also for the execution and review of those policies. A department is normally headed by a Secretary to the
Government of India who acts as the administrative head of the department and principal adviser of the Minister on all matters
of policy and administration within the department. Where the volume of work in a department exceeds the manageable charge
of a Secretary, one or more wings may be established with a Secretary/Special Secretary/Additional Secretary/Joint Secretary
in charge of each wing;such a functionary is normally vested with the maximum measure of independent functioning and
responsibility in respect of the business falling within his wing subject, however, to the overall responsibility of the Secretary for
the administration of the department as a whole. Where the implementation of government policies requires decentralisation, a
department sets up subsidiary organisations under it which are called 'attached' and 'subordinate' offices).
2 See Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn AIR 1959 SC 308 [LNIND 1958 SC 139]
[LNIND 1958 SC 139] [LNIND 1958 SC 139], See Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn
(1959) SCJ 297, See Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn (1959) Mad LJ 133 (according
to the directions issued by each minister in his own Ministry or Department, only certain matters are referred to the minister; the
rest are disposed of by the civil servants authorised to deal with such matters. Depending upon these directions, a matter
involving discretion may be disposed of by a Section Officer, an Under Secretary, a Deputy Secretary, a Joint Secretary or the
Secretary, independently by each officer himself, or in accordance with the orders of his superior).
3 Central Secretariat Manual of Office Procedure 1982.

ADMINISTRATIVE LAW/15. SUB-DELEGATION OF ADMINISTRATIVE POWERS/(3) ORDERS/[005.208]
Authentication of orders
292 101
Page
[005.208] Authentication of orders Any executive action of the Government of India must be expressed to
be taken in the name of the President1. The Authentication (Orders and other Instruments) Rules 1958 is
promulgated. By the President in his capacity to frame rules for authentication of orders and other
documents2. The Rules provide that the orders and instruments must be executed by the signature of a
Secretary or Special Secretary, Additional Secretary, Joint Secretary, Deputy Secretary, Under Secretary or
Assistant Secretary to the Government of India3. Hence, when an order is expressed in the name of the
President, and is authenticated by an officer authorised to do so under the rules, it is regarded as an order of
the government and cannot be challenged on the ground that it is not an order or instrument made or
executed by the President4.
Under the Constitution, the President is empowered to issue orders suspending the operation of
Fundamental Rights5. However, an order suspending fundamental rights6, issued in the name of the
President and signed by the Additional Secretary to the Government of India, is a validly authenticated
order7. Furthermore, it is not necessary for the government to produce affidavits in support of the regularity
of a duly authenticated order8.
However, a duly authenticated order is challengeable on such grounds as that the condition precedent to the
making of the order has not been fulfilled, or that principles of natural justice have not been observed where
it was necessary to do so, or that it has not been made in accordance with Rules of Business9. The burden
of proving the allegation will lie on the individual challenging the order10. In case of a conflict between the
Rules of Business and the rules made under a statute, that is, the former authorising one Ministry to deal
with the matter, but the latter empowering another Ministry, the Rule of Business will prevail over the other
rules in view of their constitutional statuts11. The Displaced Persons (Compensation and Rehabilitation) Act
1953 provides for an adjudicative machinery headed by the Chief Settlement Commissioner12. The power to
review the decision of the commissioner is vested in the Central Government13. Where, a review petition was
rejected by a deputy secretary acting under the Business Rules, the decision of the deputy secretary could
not be questioned on the ground that he was reviewing a decision of the commissioner who was higher in
rank than himself, since every officer acting on behalf of the government under the Business Rules acts for
the government which is superior to the commissioner14. Where the power of detention is entrusted to the
Minister and the Secretary, it is immaterial whether the representation of the detenu is considered by one
and the order passed by the other, since both could act on behalf of the government15.
An order passed by an unauthorised officer cannot be validated retrospectively by subsequently amending

the standing orders under the Rules of Business16.
1 Ie under the Constitution of India art 77(1): see[80]CONSTIUTIONAL LAW.
2 Ie under the Constitution of India art 77(2).
3 Authentication (Orders and other Instruments) Rules 1958 r 2 (a).
4 Ie under the Constitution of India arts 77(2) and 166(2).
5 Ie under the Constitution of India art 359(1). As to fundamental rights see generally[80]CONSTITUTIONAL LAW.
6 Ie under the Constitution of India arts 14, 21 and 22.
7 K Ananda Nambiar v Govt of Madras AIR 1966 SC 657 [LNIND 1965 SC 278] [LNIND 1965 SC 278] [LNIND 1965 SC 278],
K Ananda Nambiar v Govt of Madras [1966] 2 SCR 406 [LNIND 1965 SC 278] [LNIND 1965 SC 278] [LNIND 1965 SC 278], K
Ananda Nambiar v Govt of Madras (1966) 1 SCA 510; State of Bihar v Sonabati Kumari AIR 1961 SC 221 [LNIND 1960 SC
213] [LNIND 1960 SC 213] [LNIND 1960 SC 213], State of Bihar v Sonabati Kumari [1961] SCR 728, State of Bihar v Sonabati
Kumari (1961) SCA 399; Bijoya Lakshmi Cotton Mills Ltd v State of West Bengal AIR 1967 SC 1145 [LNIND 1967 SC 12]
[LNIND 1967 SC 12] [LNIND 1967 SC 12], Bijoya Lakshmi Cotton Mills Ltd v State of West Bengal [1967] 2 SCR 406 [LNIND
1967 SC 12] [LNIND 1967 SC 12] [LNIND 1967 SC 12], Bijoya Lakshmi Cotton Mills Ltd v State of West Bengal (1967) 2 SCA
8 Ishwarlal Girdharlal Joshi v State of Gujarat AIR 1968 SC 870 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND 1967 SC
326], Ishwarlal Girdharlal Joshi v State of Gujarat [1968] 2 SCR 267 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND 1967
SC 326], Ishwarlal Girdharlal Joshi v State of Gujarat (1968) 1 SCA 569 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND
1967 SC 326].
293 102
Page
9 See Godavari Shamrao Parulekar v State of Maharashtra AIR 1964 SC 1128 [LNIND 1964 SC 527] [LNIND 1964 SC 527]
[LNIND 1964 SC 527], Godavari Shamrao Parulekar v State of Maharashtra [1964] 6 SCR 446 [LNIND 1964 SC 527] [LNIND
1964 SC 527] [LNIND 1964 SC 527], Godavari Shamrao Parulekar v State of Maharashtra (1964) 2 Cr LJ 222; Ishwarlal
Girdharlal Joshi v State of Gujarat AIR 1968 SC 870 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND 1967 SC 326],
Ishwarlal Girdharlal Joshi v State of Gujarat [1968] 2 SCR 267 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND 1967 SC
326], Ishwarlal Girdharlal Joshi v State of Gujarat (1968) 1 SCA 569 [LNIND 1967 SC 326] [LNIND 1967 SC 326] [LNIND 1967
SC 326]; Fonseca Pvt Ltd v LC Gupta AIR 1973 SC 563, Fonseca Pvt Ltd v LC Gupta (1973) 1 SCC 480; Bijoya Lakshmi
Cotton Mills Ltd v State of West Bengal AIR 1967 SC 1145 [LNIND 1967 SC 12] [LNIND 1967 SC 12] [LNIND 1967 SC 12],
Bijoya Lakshmi Cotton Mills Ltd v State of West Bengal [1967] 2 SCR 406 [LNIND 1967 SC 12] [LNIND 1967 SC 12] [LNIND
1967 SC 12], Bijoya Lakshmi Cotton Mills Ltd v State of West Bengal (1967) 2 SCA 35 [LNIND 1967 SC 12] [LNIND 1967 SC
12] [LNIND 1967 SC 12]. As to Rule of Business see [005.206].
11 Dinesh Roller Flour Mill v Union of India AIR 1983 Pat 293, Dinesh Roller Flour Mill v Union of India (1983) BBCJ (HC) 329.
12 Displaced Persons (Compensation and Rehabilitation) Act 1953.
13 Displaced Persons (Compensation and Rehabilitation) Act 1953.
14 Labh Singh Atma Singh v Union of India AIR 1970 Del 171 [LNIND 1969 DEL 165] [LNIND 1969 DEL 165] [LNIND 1969
DEL 165].
15 Raverdy Marc Germain Jules v State of Maharashtra AIR 1983 SC 311, Raverdy Marc Germain Jules v State of
Maharashtra (1982) 3 SCC 135, Raverdy Marc Germain Jules v State of Maharashtra (1983) SC Cr Rep 51; Masuma v State
of Maharashtra AIR 1981 SC 1753 [LNIND 1981 SC 342] [LNIND 1981 SC 342] [LNIND 1981 SC 342], Masuma v State of
Maharashtra (1981) 3 SCC 566 [LNIND 1981 SC 342] [LNIND 1981 SC 342] [LNIND 1981 SC 342], Masuma v State of
Maharashtra (1981) SCC (Cri) 750 [LNIND 1981 SC 342] [LNIND 1981 SC 342] [LNIND 1981 SC 342].
16 Chaman Lal v State of Punjab AIR 1974 P & H 30, Chaman Lal v State of Punjab (1973) Punj LJ 49, Chaman Lal v State of
Punjab (1973) Cur LJ 156.

ADMINISTRATIVE LAW/15. SUB-DELEGATION OF ADMINISTRATIVE POWERS/(3) ORDERS/[005.209]
Form of the order
[005.209] Form of the order The provisions relating to the form of an order are directory and
non-compliance with them does not result in the order being invalid. A substantial, and not necessarily a
strict, compliance with the requirements would suffice to confer the immunity on the order1. For instance, in
complying with the provisions regarding the conduct of business of the government of India2, it is sufficient if
the substance of the requirements is satisfied, and the order need not be expressed in exact terms as laid
down in the Constitution3.
Where operative part of the order consisted of the words "Government of Bombay"instead of the
word"Governor" and was validly authenticated by the Secretary to the Government of Bombay, the court
opined that the order need not be expressed in a set formula of words and requirements of the provisions of
the Constitution were satisfied if it contained the substance of the requirement4.
An order not conforming even substantially with the required form would not be prima facie invalid, although
it may not claim immunity from being challenged on the ground that it is not made by the President5. The
validity of the order would depend on the extraneous evidence showing that the decision was taken by a
competent authority6. Hence, the court will not interfere with an order made in accordance with the Business
Rules7, and will quash an order if it is not in accordance with the Rules8. However, the burden of proving the
authencity of the authority will lie on the party challenging the order9.
An order conveyed to the party by a subordinate authority and not the authority passing the order is valid
subject to the condition that the order is made by a competent authority10.
A properly expressed and authenticated order11 is challengeable on such grounds as that the condition
294 103
Page
precedent to the making of the order has not been fulfilled, or that principles of natural justice have not been
observed12, or that it has not been made in accordance with law13.
Where, in a case of preventive detention, the order of detention was challenged on the ground that the
condition precedent to the making of a valid order of detention, as stated in the recital, was not met, the Privy
Council held that there was presumption as to the correctness of the facts mentioned in the recital to the
order and the burden to disprove them was on the person challenging their accuracy. Nevertheless, the Privy
Council found that although the detention order had been signed by the authority competent to do so under
the rules of Business, the authority had failed to apply its mind14 and consider the materials before it, so as
to satisfy itself independently. Hence, the order was quashed on the ground that the condition precedent to
the making of such an order, that is, the satisfaction of the authority making the order was not fulfilled15.
1 Dattatraya Moreshwar Pangarkar v State of Bombay AIR 1952 SC 181 [LNIND 1952 SC 22] [LNIND 1952 SC 22] [LNIND
1952 SC 22], Dattatraya Moreshwar Pangarkar v State of Bombay [1952] SCR 612 [LNIND 1952 SC 22] [LNIND 1952 SC 22]
[LNIND 1952 SC 22], Dattatraya Moreshwar Pangarkar v State of Bombay 1952 SCJ 235 [LNIND 1952 SC 22] [LNIND 1952
SC 22] [LNIND 1952 SC 22]; Laxmi Udyog Rock Cement Pvt Ltd v State of Orissa AIR 2001 Ori 51 [LNIND 2000 ORI 90]
[LNIND 2000 ORI 90] [LNIND 2000 ORI 90]; see Anand Kumar v State of Uttar Pradesh AIR 1966 All 545; E G Barsay v State
of Bombay AIR 1961 SC 1762 [LNIND 1961 SC 196] [LNIND 1961 SC 196] [LNIND 1961 SC 196], E G Barsay v State of
Bombay (1961) 2 Cr LJ 828; Joseph John v State of Travancore-Cochin AIR 1955 SC 160 [LNIND 1954 SC 163] [LNIND 1954
SC 163] [LNIND 1954 SC 163], Joseph John v State of Travancore-Cochin [1955] 1 SCR 1011 [LNIND 1954 SC 163] [LNIND
1954 SC 163] [LNIND 1954 SC 163], Joseph John v State of Travancore-Cochin (1955) SCJ 221 [LNIND 1954 SC 163] [LNIND
1954 SC 163] [LNIND 1954 SC 163].
2 As to conduct of government business see [005.206].
3 Ie under the Constitution of India arts 77(1), 77(2), 166(1)and166 (2).
4 State of Bombay v Purushottam Jog Naik AIR 1952 SC 317 [LNIND 1952 SC 40] [LNIND 1952 SC 40] [LNIND 1952 SC 40],
State of Bombay v Purushottam Jog Naik [1952] SCR 674 [LNIND 1952 SC 40] [LNIND 1952 SC 40] [LNIND 1952 SC 40],
State of Bombay v Purushottam Jog Naik (1952) SCJ 50.
5 As to order to be made by the President see [005.208].
6 R Chitralekha v State of Mysore AIR 1964 SC 1823 [LNIND 1964 SC 20] [LNIND 1964 SC 20] [LNIND 1964 SC 20], R
Chitralekha v State of Mysore (1964) 6 SCR 368 [LNIND 1964 SC 20] [LNIND 1964 SC 20] [LNIND 1964 SC 20].
7 Dattatraya Moreshwar Pangarkar v State of Bombay AIR 1952 SC 181 [LNIND 1952 SC 22] [LNIND 1952 SC 22] [LNIND
1952 SC 22], Dattatraya Moreshwar Pangarkar v State of Bombay [1952] SCR 612 [LNIND 1952 SC 22] [LNIND 1952 SC 22]
[LNIND 1952 SC 22], Dattatraya Moreshwar Pangarkar v State of Bombay 1952 SCJ 235 [LNIND 1952 SC 22] [LNIND 1952
SC 22] [LNIND 1952 SC 22]; E G Barsay v State of Bombay AIR 1961 SC 1762 [LNIND 1961 SC 196] [LNIND 1961 SC 196]
[LNIND 1961 SC 196], E G Barsay v State of Bombay (1961) 2 Cr LJ 828; State of Rajasthan v Sripal Jain AIR 1963 SC 1323
[LNIND 1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17], State of Rajasthan v Sripal Jain [1964] 1 SCR 742 [LNIND
1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17], State of Rajasthan v Sripal Jain (1964) 1 SCJ 208 [LNIND 1963 SC 17]
[LNIND 1963 SC 17] [LNIND 1963 SC 17]; Bachittar Singh v State of Punjah AIR 1963 SC 395 [LNIND 1962 SC 108] [LNIND
1962 SC 108] [LNIND 1962 SC 108], Bachittar Singh v State of Punjah [1962] Supp 3 SCR 713.
8 Ghaio Mal and Sons v State of Delhi AIR 1959 SC 65 [LNIND 1958 SC 111] [LNIND 1958 SC 111] [LNIND 1958 SC 111],
Ghaio Mal and Sons v State of Delhi (1959) SCJ 105 [LNIND 1958 SC 111] [LNIND 1958 SC 111] [LNIND 1958 SC 111];
Fonseca Pvt Ltd v LC Gupta AIR 1973 SC 563, Fonseca Pvt Ltd v LC Gupta (1973) 1 SCC 480.
9 L G Chaudhari v Secretary, LSG Dept, Govt of Bihar AIR 1980 SC 383, L G Chaudhari v Secretary, LSG Dept, Govt of Bihar
(1980) 1 SCJ 393, L G Chaudhari v Secretary, LSG Dept, Govt of Bihar (1980) Lab IC 215; Dattatraya Moreshwar Pangarkar v
State of Bombay AIR 1952 SC 181 [LNIND 1952 SC 22] [LNIND 1952 SC 22] [LNIND 1952 SC 22], Dattatraya Moreshwar
Pangarkar v State of Bombay [1952] SCR 612 [LNIND 1952 SC 22] [LNIND 1952 SC 22] [LNIND 1952 SC 22], Dattatraya
Moreshwar Pangarkar v State of Bombay 1952 SCJ 235 [LNIND 1952 SC 22] [LNIND 1952 SC 22] [LNIND 1952 SC 22]; D G
Vishwanath v Chief Secretary to Government of Mysore AIR 1964 Mys 132; State of Rajasthan v Sripal Jain AIR 1963 SC
1323 [LNIND 1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17], State of Rajasthan v Sripal Jain [1964] 1 SCR 742
[LNIND 1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17], State of Rajasthan v Sripal Jain (1964) 1 SCJ 208 [LNIND
1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17]; Narendra N Das v State of West Bengal AIR 1962 Cal 481 [LNIND
1962 CAL 36] [LNIND 1962 CAL 36] [LNIND 1962 CAL 36].
10 State of Rajasthan v Sripal Jain AIR 1963 SC 1323 [LNIND 1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17], State of
Rajasthan v Sripal Jain [1964] 1 SCR 742 [LNIND 1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17], State of Rajasthan v
Sripal Jain (1964) 1 SCJ 208 [LNIND 1963 SC 17] [LNIND 1963 SC 17] [LNIND 1963 SC 17].
11 As to authentication of order see [005.208].

295 104
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12 Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn AIR 1959 SC 308 [LNIND 1958 SC 139] [LNIND
1958 SC 139] [LNIND 1958 SC 139], Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn (1959) SCJ
297, Gullapalli Nageswara Rao v Andhra Pradesh State Road Transport Corpn (1959) Mad LJ 133. As to 'principles of natural
justice' see [005.054].
13 See State of Bihar v Sonabati Kumari AIR 1961 SC 221 [LNIND 1960 SC 213] [LNIND 1960 SC 213] [LNIND 1960 SC 213],
State of Bihar v Sonabati Kumari [1961] SCR 728, State of Bihar v Sonabati Kumari (1961) SCA 399; Bijoya Lakshmi Cotton
Mills Ltd v State of West Bengal AIR 1967 SC 1145 [LNIND 1967 SC 12] [LNIND 1967 SC 12] [LNIND 1967 SC 12], Bijoya
Lakshmi Cotton Mills Ltd v State of West Bengal [1967] 2 SCR 406 [LNIND 1967 SC 12] [LNIND 1967 SC 12] [LNIND 1967 SC
12], Bijoya Lakshmi Cotton Mills Ltd v State of West Bengal (1967) 2 SCA 35 [LNIND 1967 SC 12] [LNIND 1967 SC 12] [LNIND
1967 SC 12]; EP Royappa v State of Tamil Nadu AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973
SC 359], EP Royappa v State of Tamil Nadu (1974) 4 SCC 3 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC
359], EP Royappa v State of Tamil Nadu [1974] 2 SCR 348 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359]
(if the authenticated order does not correctly reflect the actual order made, or the actual decision taken by the state
government, it must be open to correction; the formal expression of the order cannot be given such sanctity that even if found to
be mistaken, it must prevail over the actual order made and override it).
14 As to application of mind see [005.199].
15 Emperor v Sibnath Banerji AIR 1945 PC 156, Emperor v Sibnath Banerji (1945) 2 MLJ 325 [LNIND 1945 BOM 75] [LNIND
1945 BOM 75] [LNIND 1945 BOM 75], Emperor v Sibnath Banerji (1945) MWN 546 (where there is presumption as to the
correctness of the facts mentioned in the recital to the order and the burden to disprove them was on the person challenging
their accuracy; the Privy Council found that though the detention order had been signed by the authority competent to do so
under the rules of Business, yet the authority had made the order in a routine manner, had not applied its mind, and
mechanically acted on the recommendation of the police, and it had not considered the materials before it, so as to satisfy itself,
independently of the police recommendation that an order of preventive detention was called for or not).

ADMINISTRATIVE LAW/16. JUDICIAL REVIEW/[005.210] Scope
[005.210] Scope The expansion of the scope of judicial review of administrative action is discernible by the
expansion of the concept of tribunal1 for purposes of judicial review2, liberalisation of the rule of locus
standi3, moulding of remedies4, extension of the writ system to nonstatutory government instrumentalities5,
and reducing the scope of immunity from production of documents6.
The Constitution ensures that an administrative action is subject to judicial review by providing for a
comprehensive scheme of judicial control over the administration7. Moreover, judicial review is free from the
vagaries of legislation and is declared to be the basic feature of the Constitution8. Furthermore, since the
Constitution specifically recognises the power of the government to engage in activities of a commercial
nature9, it is the function of the courts to ensure that effective policing of the corridors of power is carried out
by them until other 'ombudsman arrangements' emerge10. A visible judicial trend in modern times is to bring
in as many bodies as possible under the discipline of public law and thus expand the role of the courts as
supervisors of administrative functioning11.
1 As to the expansion of the concept of tribunal see [005.211].
2 As to superintendence of tribunals see [005.212] and following.
3 As to locus standi see [005.219].
4 As to 'remedies' see [005.218].
5 As to writ jurisdiction with regard to non-statutory government instrumentalities see [005.222].
6 As to immunity from production of documents see [005.350].
7 Ie under the Constitution of India arts 32, 136, 226 and 227.
8 See L Chandra Kumar v Union of India AIR 1997 SC 1125 [LNIND 1997 SC 488] [LNIND 1997 SC 488] [LNIND 1997 SC
488], L Chandra Kumar v Union of India (1997) 3 SCC 261 [LNIND 1997 SC 488] [LNIND 1997 SC 488] [LNIND 1997 SC 488],
L Chandra Kumar v Union of India (1997) 3 JT 589; see also Jain, Indian Constitutional Law (even an amendment of the
296 105
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Constitution cannot bar judicial review).
9 Ie under the Constitution of India arts 19(1)(g) read with 19(6)and298: see CONSTITUTIONAL LAW[80] (Article 19 (1) (g)
confers on a citizen of India freedom to carry on any trade, business and occupation. Reasonable restrictions can be imposed
on this right in public interest. Article 298 empowers the government to carry on any trade or business or service by itself or
through a corporation (owned or controlled by it) to the complete or partial exclusion of citizens. This is a matter of the executive
power of the government).
10 As to ombudsman arrangements see [005.354].
11 As to the role of high court as supervisor see [005.211] and following.

ADMINISTRATIVE LAW/17.HIGH COURT'S SUPERINTENDENCE OVER TRIBUNALS/(1)
INTRODUCTION/[005.211] Concept of tribunal for purposes of superintendence of the high court
[005.211] Concept of tribunal for purposes of superintendence of the high court The term tribunal is
interpreted broadly to include every adjudicatory body acting according to natural justice and rendering a
definitive decision1. The claims tribunal constituted under the Motor Vehicles Act 1988 has been held to be
subject to the supervisory jurisdiction of the high court2.
The courts may differ in their opinion as to the status of the authority under the Payment of Wages Act 1936
as a court subordinate to the high court3. However, the authority is regarded as a tribunal and hence, falls
under the superintendence of a high court. Hence, the high court under its power of superintendence can
interfere with the decision of a claim for over-time wages falling within the jurisdiction of the authority4
However, it is possible that while a body may be regarded as being subject to the writ jurisdiction of the high
court5, it may not be regarded as a tribunal for purposes of judicial review of the high court6.
Where a statute provides that an aided school cannot dismiss an employee without the dismissal order being
confirmed by the deputy commissioner, and that an aggrieved person can appeal to the commissioner
against an order of the deputy commissioner, both the commissioner and the deputy commissioner are
quasi-judicial authorities and so will be comprehended in the expression 'tribunal'7.
1 See Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh AIR 1985 SC 364 [LNIND 1984 SC 347] [LNIND 1984 SC
347] [LNIND 1984 SC 347], Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh (1984) Supp SCC 540 [LNIND 1984
SC 347], Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh [1985] 2 SCR 479 [LNIND 1984 SC 347] [LNIND 1984
SC 347] [LNIND 1984 SC 347] (a statutory body functioning under the Punjab Aided schools (Security of Service) Act 1969, is
held to fall within the expression 'tribunal' and hence subject to judicial review); Nitin Chakravarti v S C Bonarjee AIR 1970 Cal
477 [LNIND 1969 CAL 204] [LNIND 1969 CAL 204] [LNIND 1969 CAL 204], Nitin Chakravarti v S C Bonarjee 74 Cal WN 958
(settlement commission under the Income Tax Act 1961, consumer forum under the Consumer Protection Act 1987, and
Central Board of Revenue are held to be tribunals).
2 United India Insurance Co Ltd v Ramdas Patil AIR 2000 MP 63 [LNIND 1999 MP 171] [LNIND 1999 MP 171] [LNIND 1999
MP 171], United India Insurance Co Ltd v Ramdas Patil (2000) 1 MPLJ 442, United India Insurance Co Ltd v Ramdas Patil
(2000) 1 Jab LJ 255.
3 A Hasan v Mohammad Shamsuddin AIR 1951 Pat 140, A Hasan v Mohammad Shamsuddin (1951) ILR 30 Pat 896; Works
Manager CA,rriage and Wagon Shops, Mohalpura v K G Hashmat AIR 1946 Lah 316, Works Manager CA,rriage and Wagon
Shops, Mohalpura v K G Hashmat (1947) ILR Lah 1, Works Manager CA,rriage and Wagon Shops, Mohalpura v K G Hashmat
226 IC 44 (authority appointed under the payment of wages act 1936 s 15 is subject to the revisional jurisdiction of the high
court under the Code of Civil Procedure 1908 s 115);
Rameshwarlal v Jogendra Das AIR 1970 Ori 76 [LNIND 1969 ORI 98] [LNIND 1969 ORI 98] [LNIND 1969 ORI 98],
Rameshwarlal v Jogendra Das (1970) ILR Cut 587, Rameshwarlal v Jogendra Das (1970) Lab IC 560; Divisional
Superintendent Delhi Division Northern Railway, New v Satyender Nath Kapur AIR 1964 Punj 242 (the authority constituted
under the payment of wages act 1936 is not a court subordinate to the high court).
4 District Transport Manager, State Transport v Satrughana Guru AIR 1970 Ori 121 [LNIND 1969 ORI 121] [LNIND 1969 ORI
121] [LNIND 1969 ORI 121], District Transport Manager, State Transport v Satrughana Guru (1970) 36 Cut LT 260, District
297 106
Page
Transport Manager, State Transport v Satrughana Guru (1970) Lab IC 858(the Orissa High Court has taken the view that the
'authority' under the Payment of Wages Act 1936 is not a 'court' subordinate to the high court for purposes of Code of Civil
Procedure s 115; there has been a difference of opinion among the high courts with some high courts regarding the authority
under the Act as a court subordinate to the high court, on the ground that it decides the matter judicially after hearing the parties
and on materials produced before it according to certain definite and specified rules of procedure laid down in the Payment of
Wages Act; nevertheless, the authority in question is regarded as a 'tribunal and, thus, falls under the High Court's
superintendence under art 227. A clain for over-time wages falls within the jurisdiction of the authority. In deciding upon such a
claim, the authority does not act without it jurisdiction and so the high court interfere with the authority's decision under art 227).
5 Ie under the Consitution of Indiaart 226: see [005.222]: [80]CONSTIUTIONAL LAW.
6 Haripada Moitra v President Calcutta Improvement Tribunal AIR 1970 Cal 154 [LNIND 1969 CAL 138] [LNIND 1969 CAL
138] [LNIND 1969 CAL 138](the Calcutta High Court considered the question whether it could exercise supervisory jurisdiction
under art 227 over dismissal of a servant by the President Calcutta Improvement Trust; answering in the negative, the court
held that the President being an administrative head was empowered to take the decision and was bound to follow the
principles of natural justice while holding an inquiry prior to dismissing an employee, he did not act as a tribunal and did not
become subject to the high court's jurisdiction under art 227; he would undoubtedly be subject to the writ jurisdiction of the high
court under art 226 which is more extensive in scope than the power of superintendence under art 227 which can be exercised
only over courts and tribunals under certain circumstances): For comparison between art 226 and art 227 see [005.212] and
[005.222].
7 Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh AIR 1985 SC 364 [LNIND 1984 SC 347] [LNIND 1984 SC 347]
[LNIND 1984 SC 347], Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh (1984) Supp SCC 540 [LNIND 1984 SC
347], Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh [1985] 2 SCR 479 [LNIND 1984 SC 347] [LNIND 1984 SC
347] [LNIND 1984 SC 347]. As to meaning of quasi-judicial see [005.148].

INTRODUCTION/[005.212] Power of superintendence
[005.212] Power of superintendence Under the Constitution, every high court has the power of
superintendence over all courts1 and tribunals2, within its territorial jurisdiction, except those which are
constituted by or under a law relating to armed forces3. The power of superintendence includes the power (1)
to call for returns from such courts, (2) to make and issue general rules and prescribe forms for regulating
the practice and proceedings of such courts, and (3) to prescribe forms in which books, entries and accounts
are to be kept by the officers of such court4. Furthermore, the high court's power of superintendence is not
subject to any limitations as prescribed under the Code of Civil Procedure 19085. While invoking its power of
superintendence, the high court may call for the records from the tribunal, examine the same and pass
appropriate orders as it may think just and proper. However, the court cannot pass any adverse order
against a party unless he has been given an opportunity of being heard6. The Supreme Court quashed a
decision of the high court when the high court passed its decision without hearing one of the parties to the
dispute7. The power of superintendence by the high court is not only of administrative nature but also of
judicial nature7. When the relevant statute under which a tribunal is taking a decision does not provide for an
appeal from the tribunal to the high court, the aggrieved person can seek recourse from the high court's
supervisory jurisdiction8. For instance, when the claims tribunal constituted under the Motor Vehicles Act
19889, awards excessive compensation and, thus, acts arbitrarily in the exercise of its jurisdiction and the
insurance company has no right of appeal against the award, the insurer can resort to the high court's
supervisory jurisdiction10. Furthermore, the high court can suo motu invoke its supervisory jurisdiction11 and
recall the records of any case from the subordinate court and may quash the plaint, or the proceedings in
order to prevent the abuse of process of law12.
The power of superintendence conferred by the Constitution13 is not appellate in nature14. Hence, the power
of superintendence of the high court cannot be invoked to correct an error of fact which a court can do in
exercise of its statutory power as a court of appeal15. Accordingly, high courts ought to exercise their power
of superintendence most sparingly and only in appropriate cases16. The Supreme Court quashed the
decision of a high court, which exceeded its jurisdiction by assuming the powers of a court of appeal which it
did not possess under the law17. Furthermore, the high court may interfere with an interim order of a tribunal
if the same is made without jurisdiction18. When the statutory power of revision accorded to the high court is
298 107
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inadequate, the high court can fall back upon its supervisory power.
The power of superintendence of a high court can be invoked if a tribunal:
(1) declines to do what is legally incumbent on it to do and thereby refuses to exercise jurisdiction
vested in it by law19: or,
(2) it exceeds its jurisdiction20; or,
(3) it acts without jurisdiction21; or,
(4) it acts against natural justice22; or
(5) there is an error of law apparent on the fact of the record as distinguished from mere error of
law23; or
(6) it has exercised its discretion in an arbitrary or capricious manner24.
1 As to power of superintendence over courts see courts [100.046].
2 As to the meaning of tribunal see [005.211].
4 See the Constitution of India art 227(4):[80]CONSTITUTIONAL LAW.
5 Ie the Code of Civil Procedure 1908 s 115: see CIVIL PROCEDURE[65.796] and following.
6 Jijabai Vithalrao Gajre v Pathankhan AIR 1971 SC 315 [LNIND 1970 SC 341] [LNIND 1970 SC 341] [LNIND 1970 SC 341],
Jijabai Vithalrao Gajre v Pathankhan (1970) 2 SCC 717 [LNIND 1970 SC 341] [LNIND 1970 SC 341] [LNIND 1970 SC 341],
Jijabai Vithalrao Gajre v Pathankhan [1971] 2 SCR 1 [LNIND 1970 SC 341] [LNIND 1970 SC 341] [LNIND 1970 SC 341];
Geeta Pump (Pvt) Ltd v District Judge, Saharanpur AIR 2000 All 58 [LNIND 1999 ALL 1661] [LNIND 1999 ALL 1661] [LNIND
1999 ALL 1661], Geeta Pump (Pvt) Ltd v District Judge, Saharanpur (2000) AIHC 2227; Committee of Management, Sri Ratan
Muni Jain Intermediate College, Agra v Director of Education (Secondary), Allahabad AIR 1997 All 163 [LNIND 1996 ALL 580]
[LNIND 1996 ALL 580] [LNIND 1996 ALL 580], Committee of Management, Sri Ratan Muni Jain Intermediate College, Agra v
Director of Education (Secondary), Allahabad (1997) All LJ 820; Pramod Saraswat v Ashok Kumar Saraswat AIR 1981 All 441,
Pramod Saraswat v Ashok Kumar Saraswat (1981) All WC 703; Suresh Chandra Dutta v Mohan Bashi Dutta AIR 1970 Tri 51.
7 State of West Bengal v Ashit Nath Das AIR 1988 SC 729 [LNIND 1988 SC 59] [LNIND 1988 SC 59] [LNIND 1988 SC 59],
State of West Bengal v Ashit Nath Das (1988) 2 SCC 209 [LNIND 1988 SC 59] [LNIND 1988 SC 59] [LNIND 1988 SC 59], State
of West Bengal v Ashit Nath Das [1988] 2 SCR 818 [LNIND 1988 SC 59] [LNIND 1988 SC 59] [LNIND 1988 SC 59]; Waryam
Singh v Amarnath AIR 1954 SC 215 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v Amarnath
[1954] SCR 565 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v Amarnath (1954) SCJ 290
[LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7] (the Supreme Court has ruled that art 227 confers power of judicial
superintendence on the high court, independent of the provisions of other laws conferring revisional jurisdiction on the high
courts).
8 Waryam Singh v Amarnath AIR 1954 SC 215 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v
Amarnath [1954] SCR 565 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v Amarnath (1954) SCJ
290 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7]; Hari Vishnu Kamath v Ahmad Ishaque AIR 1955 SC 233
[LNIND 1954 SC 174] [LNIND 1954 SC 174] [LNIND 1954 SC 174], Hari Vishnu Kamath v Ahmad Ishaque [1955] 1 SCR 1104
[LNIND 1954 SC 174] [LNIND 1954 SC 174] [LNIND 1954 SC 174], Hari Vishnu Kamath v Ahmad Ishaque (1955) SCJ 267
[LNIND 1954 SC 174] [LNIND 1954 SC 174] [LNIND 1954 SC 174]; Achutananda Baidya v Prafullya Kumar Gayen AIR 1997
SC 2077 [LNIND 1997 SC 652] [LNIND 1997 SC 652] [LNIND 1997 SC 652]at 2079, Achutananda Baidya v Prafullya Kumar
Gayen (1997) 5 SCC 76 [LNIND 1997 SC 652] [LNIND 1997 SC 652] [LNIND 1997 SC 652], Achutananda Baidya v Prafullya
Kumar Gayen (1997) 5 JT 75 (the power of superintendence of a high court under art 227 of the Constitution is not confined to
administrative superintendence only but such power included within its sweep the power of judicial review).
9 As to claims tribunal see [220] motor vehicles.
10 Gopichand Khoobchand Sharma v Works Manager, Loco-shops, Western Railway, Dohad AIR 1967 Guj 27 [LNIND 1965
GUJ 110] [LNIND 1965 GUJ 110] [LNIND 1965 GUJ 110], Gopichand Khoobchand Sharma v Works Manager, Loco-shops,
Western Railway, Dohad (1966) ILR Guj 112, Gopichand Khoobchand Sharma v Works Manager, Loco-shops, Western
Railway, Dohad (1966) 7 Guj LR 291.
(2000) 1 Jab LJ 255.
12 Pepsi Foods Ltd v Special Judicial Magistrate AIR 1998 SC 128 [LNIND 1997 SC 1379] [LNIND 1997 SC 1379] [LNIND
299 108
Page
1997 SC 1379], Pepsi Foods Ltd v Special Judicial Magistrate (1998) 5 SCC 749 [LNIND 1997 SC 1379] [LNIND 1997 SC
1379] [LNIND 1997 SC 1379], Pepsi Foods Ltd v Special Judicial Magistrate (1997) 8 JT 705; Geeta Pump (Pvt) Ltd v District
Judge, Saharanpur AIR 2000 All 58 [LNIND 1999 ALL 1661] [LNIND 1999 ALL 1661] [LNIND 1999 ALL 1661], Geeta Pump
(Pvt) Ltd v District Judge, Saharanpur (2000) AIHC 2227.
14 Mohd Yunus v Mohd Mustaqim AIR 1984 SC 38 [LNIND 1983 SC 282] [LNIND 1983 SC 282] [LNIND 1983 SC 282], Mohd
Yunus v Mohd Mustaqim (1983) 4 SCC 566 [LNIND 1983 SC 282] [LNIND 1983 SC 282] [LNIND 1983 SC 282], Mohd Yunus v
Mohd Mustaqim [1984] 1 SCR 211 [LNIND 1983 SC 282] [LNIND 1983 SC 282] [LNIND 1983 SC 282]; Mohan Amba Prasad
Agnihotri v Bhaskar Balwant Aher decd) through LRS AIR 2000 SC 931 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND
2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher decd) through LRS (2000) 3 SCC 190 [LNIND 2000 SC
406] [LNIND 2000 SC 406] [LNIND 2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher decd) through LRS
(2000) 2 JT 558 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406]; Shama Prashant Raje v Ganpat Rao AIR
2000 SC 3094 [LNIND 2000 SC 1308] [LNIND 2000 SC 1308], Shama Prashant Raje v Ganpat Rao (2000) 7 SCC 522 [LNIND
2000 SC 1308] [LNIND 2000 SC 1308], Shama Prashant Raje v Ganpat Rao (2000) 1 JT Supp 59.
15 Babhutmal Raichand Oswal v Laxmibai R Tarte AIR 1975 SC 1297, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975)
1 SCC 858, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) UJ 220.
16 Waryam Singh v Amarnath AIR 1954 SC 215 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v
Amarnath [1954] SCR 565 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v Amarnath (1954) SCJ
290 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7]; Maneck Custodji Surjarji v Sarafazali, Nawabali Mirza AIR
1976 SC 2446, Maneck Custodji Surjarji v Sarafazali, Nawabali Mirza (1977) 1 SCC 227; N M Engineer v Narendra Singh Virdi
AIR 1995 SC 448, N M Engineer v Narendra Singh Virdi (1994) 5 SCC 261(2), N M Engineer v Narendra Singh Virdi (1994) 5
JT 454; Babhutmal Raichand Oswal v Laxmibai R Tarte AIR 1975 SC 1297, Babhutmal Raichand Oswal v Laxmibai R Tarte
(1975) 1 SCC 858, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) UJ 220.
17 India Pipe Fitting Co v Fakruddin MA Baker AIR 1978 SC 45 [LNIND 1977 SC 306] [LNIND 1977 SC 306] [LNIND 1977 SC
306]at 47, India Pipe Fitting Co v Fakruddin MA Baker (1977) 4 SCC 587 [LNIND 1977 SC 306] [LNIND 1977 SC 306] [LNIND
1977 SC 306], India Pipe Fitting Co v Fakruddin MA Baker [1978] 1 SCR 597 [LNIND 1977 SC 281] [LNIND 1977 SC 281]
[LNIND 1977 SC 281]; Ouseph Mathai v M Abdul Khadir AIR 2002 SC 110 [LNIND 2001 SC 2508] [LNIND 2001 SC 2508]
[LNIND 2001 SC 2508].
18 Industrial Credit and Investment Corpn of India Ltd v Grapco Industries Ltd [1999] 3 LRI 538, Industrial Credit and
Investment Corpn of India Ltd v Grapco Industries Ltd AIR 1999 SC 1975 [LNIND 1999 SC 410] [LNIND 1999 SC 410],
Industrial Credit and Investment Corpn of India Ltd v Grapco Industries Ltd (1999) 4 SCC 710 [LNIND 1999 SC 410] [LNIND
1999 SC 410].
19 see Satyanarayan Laxminarayan Hegde v Malikarjun Bhavanappa Tirumale AIR 1960 SC 137, Satyanarayan Laxminarayan
Hegde v Malikarjun Bhavanappa Tirumale [1960] 1 SCR 890, Satyanarayan Laxminarayan Hegde v Malikarjun Bhavanappa
Tirumale (1960) SCJ 1065.
20 India Pipe Fitting Co v Fakruddin MA Baker AIR 1978 SC 45 [LNIND 1977 SC 306] [LNIND 1977 SC 306] [LNIND 1977 SC
306]at 47, India Pipe Fitting Co v Fakruddin MA Baker (1977) 4 SCC 587 [LNIND 1977 SC 306] [LNIND 1977 SC 306] [LNIND
1977 SC 306], India Pipe Fitting Co v Fakruddin MA Baker [1978] 1 SCR 597 [LNIND 1977 SC 281] [LNIND 1977 SC 281]
[LNIND 1977 SC 281]; Ouseph Mathai v M Abdul Khadir AIR 2002 SC 110 [LNIND 2001 SC 2508] [LNIND 2001 SC 2508]
[LNIND 2001 SC 2508]; Chandra Bhushan (decd) by LRS v Beni Prasad AIR 1999 SC 2266, Chandra Bhushan (decd) by LRS
v Beni Prasad (1999) 1 SCC 70, Chandra Bhushan (decd) by LRS v Beni Prasad AIR 1999 SCW 2309; Tax Recovery Officer
II, Sadar, Nagpur v Gangadhar Vishwanath Ranade (decd) through Shobha Ravindran Nemiwant AIR 1999 SC 427, Tax
Recovery Officer II, Sadar, Nagpur v Gangadhar Vishwanath Ranade (decd) through Shobha Ravindran Nemiwant (1998) 6
SCC 658, Tax Recovery Officer II, Sadar, Nagpur v Gangadhar Vishwanath Ranade (decd) through Shobha Ravindran
Nemiwant (1998) 6 JT 277;.
21 Industrial Credit and Investment Corpn of India Ltd v Grapco Industries Ltd [1999] 3 LRI 538, Industrial Credit and
Investment Corpn of India Ltd v Grapco Industries Ltd AIR 1999 SC 1975 [LNIND 1999 SC 410] [LNIND 1999 SC 410],
Industrial Credit and Investment Corpn of India Ltd v Grapco Industries Ltd (1999) 4 SCC 710 [LNIND 1999 SC 410] [LNIND
1999 SC 410]; Santosh Kumar v Bhai Mool Singh AIR 1958 SC 321 [LNIND 1958 SC 2] [LNIND 1958 SC 2] [LNIND 1958 SC
2], Santosh Kumar v Bhai Mool Singh [1958] SCR 1211 [LNIND 1958 SC 2] [LNIND 1958 SC 2] [LNIND 1958 SC 2], Santosh
Kumar v Bhai Mool Singh (1958) SCJ 434 [LNIND 1958 SC 2] [LNIND 1958 SC 2] [LNIND 1958 SC 2].
22 Vadivelu v Sundaram AIR 2000 SC 3230 [LNIND 2000 SC 1330] [LNIND 2000 SC 1330] [LNIND 2000 SC 1330], Vadivelu v
Sundaram (2000) 8 SCC 355 [LNIND 2000 SC 1330] [LNIND 2000 SC 1330] [LNIND 2000 SC 1330], Vadivelu v Sundaram
(2000) 1 JT Supp 408; Dahya Lala v Rasul Mahomed Abdul Rahim AIR 1964 SC 1320 [LNIND 1962 SC 221] [LNIND 1962 SC
221] [LNIND 1962 SC 221], Dahya Lala v Rasul Mahomed Abdul Rahim [1963] 3 SCR 1 [LNIND 1962 SC 221] [LNIND 1962
SC 221] [LNIND 1962 SC 221]; Ahmedabad Manufacturing and Calico Printing Co Ltd v Ramtahel Ramanand AIR 1972 SC
1598 [LNIND 1972 SC 226] [LNIND 1972 SC 226] [LNIND 1972 SC 226], Ahmedabad Manufacturing and Calico Printing Co Ltd
v Ramtahel Ramanand (1972) 1 SCC 898 [LNIND 1972 SC 226] [LNIND 1972 SC 226] [LNIND 1972 SC 226], Ahmedabad
Manufacturing and Calico Printing Co Ltd v Ramtahel Ramanand [1973] 1 SCR 185 [LNIND 1972 SC 226] [LNIND 1972 SC
226] [LNIND 1972 SC 226]; State of Maharashtra v Milind [2001] 4 LRI 1025, State of Maharashtra v Milind AIR 2001 SC 393
[LNIND 2000 SC 1675] [LNIND 2000 SC 1675] [LNIND 2000 SC 1675], State of Maharashtra v Milind (2001) 1 SCC 4 [LNIND
300 109
Page
23 Oriental Insurance Co Ltd v Jharna Sarkar AIR 2000 Gau 189, Oriental Insurance Co Ltd v Jharna Sarkar (2000) 3 Gau LR
423, Oriental Insurance Co Ltd v Jharna Sarkar (2001) 1 TAC 191; Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers
Union AIR 1999 SC 413 [LNIND 1998 SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099], Savita Chemicals (Pvt) Ltd v
Dyes and Chemicals Workers Union (1999) 2 SCC 143 [LNIND 1998 SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099],
Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers Union (1998) 8 JT 552 [LNIND 1998 SC 1099] [LNIND 1998 SC
1099] [LNIND 1998 SC 1099].
24 Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers Union AIR 1999 SC 413 [LNIND 1998 SC 1099] [LNIND 1998
SC 1099] [LNIND 1998 SC 1099], Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers Union (1999) 2 SCC 143 [LNIND
1998 SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099], Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers
Union (1998) 8 JT 552 [LNIND 1998 SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099].

INTRODUCTION/[005.213] Writ jurisdiction
[005.213] Writ jurisdiction The origin of the abovementioned provisions of the Constitution are different and
stand on an entirely different footing. The nature of the power to issue writs1 is different from the supervisory
or superintending power2. Where writs are directed against persons, authorities and the state, the power of
superintendence conferred on every high court is a supervisory jurisdiction intended to ensure that
subordinate courts and tribunals act within the limits of their authority according to law3. The power of
superintendence conferred upon the high courts by is in addition to the power conferred on them to issue
writs and directions4.
The scope of the high court's supervisory jurisdiction is confined to courts and tribunals, while the power to
issue writs and directions extends to all kinds of adjudicators as well as administrative or legislative bodies.
Hence, a body which may not be regarded as a tribunal is not subject to the superintendence of a high
court5. Under the Constitution, a court martial is not subject to the superintendence of the high court, but is,
however, subject to the high court's writ jurisdiction6. Moreover, the high court cannot exercise its power of
superintendence as if it was exercising appellate or revisional powers7.
However, the high court can exercise both the abovementioned powers suo motu8. Furthermore, the high
court can quash the impugned decision, and also mould the relief according to the circumstances of the
case9. Where the high court finds that the petitioner cannot invoke the courts jurisdiction to issue writs, the
high court can treat the writ petition as being one under its supervisory jurisdiction10. The supervisory
jurisdiction conferred on the high court may be invoked when Code of Civil Procedure 1908 is not
applicable11.
1 Ie under the Constitution of India art 226. As to writs see[80]CONSTITUTIONAL LAW (under art 226 of the Constitution, a
high court is empowered to issue directions, orders and writs to any person or authority. Under art 227 of the Constitution, a
high court has the power of superintendence over all subordinate courts and tribunals within its territorial jurisdiction): see
further [005.222].
2 Ie under the Constitution of India art 227. Umaji Keshao Meshram v Radhikabai AIR 1986 SC 1272 [LNIND 1986 SC 77]
[LNIND 1986 SC 77] [LNIND 1986 SC 77]at 1317, Umaji Keshao Meshram v Radhikabai (1986) Supp SCC 401 [LNIND 1986
SC 77] [LNIND 1986 SC 77] [LNIND 1986 SC 77], Umaji Keshao Meshram v Radhikabai [1986] 1 SCR 731 [LNIND 1986 SC
77] [LNIND 1986 SC 77] [LNIND 1986 SC 77].
3 Umaji Keshao Meshram v Radhikabai AIR 1986 SC 1272 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986 SC 77]at
1317, Umaji Keshao Meshram v Radhikabai (1986) Supp SCC 401 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986 SC
77], Umaji Keshao Meshram v Radhikabai [1986] 1 SCR 731 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986 SC 77].
4 See note 3 above.
5 As to concept of tribunal see [005.211].

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6 Union of India v A Hussain AIR 1998 SC 577 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568], Union
of India v A Hussain (1998) 1 SCC 537 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568], Union of India v
A Hussain (1997) 7 Scale 477 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568].
7 Mohd Yunus v Mohd Mustaqim AIR 1984 SC 38 [LNIND 1983 SC 282] [LNIND 1983 SC 282] [LNIND 1983 SC 282], Mohd
Yunus v Mohd Mustaqim (1983) 4 SCC 566 [LNIND 1983 SC 282] [LNIND 1983 SC 282] [LNIND 1983 SC 282], Mohd Yunus v
Mohd Mustaqim [1984] 1 SCR 211 [LNIND 1983 SC 282] [LNIND 1983 SC 282] [LNIND 1983 SC 282]; Mohan Amba Prasad
Agnihotri v Bhaskar Balwant Aher (decd) through LRS AIR 2000 SC 931 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND
2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher (decd) through LRS (2000) 3 SCC 190 [LNIND 2000 SC
406] [LNIND 2000 SC 406] [LNIND 2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher (decd) through LRS
(2000) 2 JT 558 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406]; Shama Prashant Raje v Ganpat Rao AIR
2000 SC 3094 [LNIND 2000 SC 1308] [LNIND 2000 SC 1308], Shama Prashant Raje v Ganpat Rao (2000) 7 SCC 522 [LNIND
2000 SC 1308] [LNIND 2000 SC 1308], Shama Prashant Raje v Ganpat Rao (2000) 1 JT Supp 59; see Waryam Singh v
Amarnath AIR 1954 SC 215 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v Amarnath [1954]
SCR 565 [LNIND 1954 SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7], Waryam Singh v Amarnath (1954) SCJ 290 [LNIND 1954
SC 7] [LNIND 1954 SC 7] [LNIND 1954 SC 7]; Jijabai Vithalrao Gajre v Pathankhan AIR 1971 SC 315 [LNIND 1970 SC 341]
[LNIND 1970 SC 341] [LNIND 1970 SC 341], Jijabai Vithalrao Gajre v Pathankhan (1970) 2 SCC 717 [LNIND 1970 SC 341]
[LNIND 1970 SC 341] [LNIND 1970 SC 341], Jijabai Vithalrao Gajre v Pathankhan [1971] 2 SCR 1 [LNIND 1970 SC 341]
[LNIND 1970 SC 341] [LNIND 1970 SC 341]; Ahmedabad Manufacturing and Calico Printing Co Ltd v Ramtahel Ramanand
AIR 1972 SC 1598 [LNIND 1972 SC 226] [LNIND 1972 SC 226] [LNIND 1972 SC 226], Ahmedabad Manufacturing and Calico
Printing Co Ltd v Ramtahel Ramanand (1972) 1 SCC 898 [LNIND 1972 SC 226] [LNIND 1972 SC 226] [LNIND 1972 SC 226],
Ahmedabad Manufacturing and Calico Printing Co Ltd v Ramtahel Ramanand [1973] 1 SCR 185 [LNIND 1972 SC 226] [LNIND
1972 SC 226] [LNIND 1972 SC 226]; see also Nagendra Nath Bora v Comr of Hills Division and Appeals, Assam AIR 1958 SC
398 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Comr of Hills Division and Appeals,
Assam [1958] SCR 1240 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Comr of Hills
Division and Appeals, Assam (1958) SCJ 798 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]; Bhutnath Chatterjee
v State of West Bengal 1969 3 SCC 675; Rajkamal Kalamandir (Pvt) Ltd v Indian Motion Pictures Employees' Union (1965) 2
SCWR 233, Rajkamal Kalamandir (Pvt) Ltd v Indian Motion Pictures Employees' Union (1963) 1 LLJ 74 (power of the high court
under art 227 is not greater than that under art 226; power limited to seeing that tribunals function within the limits of their
authority; the high court cannot sit in appeal against order of tribunal).
8 Ahmedabad Manufacturing and Calico Printing Co Ltd v Ramtahel Ramanand AIR 1972 SC 1598 [LNIND 1972 SC 226]
[LNIND 1972 SC 226] [LNIND 1972 SC 226], Ahmedabad Manufacturing and Calico Printing Co Ltd v Ramtahel Ramanand
(1972) 1 SCC 898 [LNIND 1972 SC 226] [LNIND 1972 SC 226] [LNIND 1972 SC 226], Ahmedabad Manufacturing and Calico
Printing Co Ltd v Ramtahel Ramanand [1973] 1 SCR 185 [LNIND 1972 SC 226] [LNIND 1972 SC 226] [LNIND 1972 SC 226].
9 See note 8 above.
10 Geeta Pump (Pvt) Ltd v District Judge, Saharanpur AIR 2000 All 58 [LNIND 1999 ALL 1661] [LNIND 1999 ALL 1661]
[LNIND 1999 ALL 1661], Geeta Pump (Pvt) Ltd v District Judge, Saharanpur (2000) AIHC 2227.
11 Ie the Code of Civil Procedure 1908 s 115.

INTRODUCTION/[005.214] Binding nature of high court's decision
[005.214] Binding nature of high court's decision The decision of the high court under its supervisory
jurisdiction1 is binding on the concerned tribunal2. Deliberate disobedience of the order of the high court
would amount to contempt of court3.
1 Baradakanta Mishra v Bhimsen Dixit AIR 1972 SC 2466 [LNIND 1972 SC 471] [LNIND 1972 SC 471] [LNIND 1972 SC 471],
Baradakanta Mishra v Bhimsen Dixit (1973) 1 SCC 446 [LNIND 1972 SC 471] [LNIND 1972 SC 471] [LNIND 1972 SC 471],
Baradakanta Mishra v Bhimsen Dixit [1973] 2 SCR 495 [LNIND 1972 SC 471] [LNIND 1972 SC 471] [LNIND 1972 SC 471](the
Commissioner of Hindu Religious Endowments who acts as a quasi-judicial authority under the Orissa Hindu Religious
Endowments Act has been held subject to the superintendence of the high court under art 227; the decision of the high court is
binding on the commissioner and that it will amount to contempt of court on his part if he deliberately avoids to follow the high
court's decision mala fide, by providing wrong and illegitimate reasons. The Court has emphasized that the conduct of the
commissioner in not following the previous decision of the high court is calculated to create confusion in the administration of
law; undermining the respect for law laid down by the high court and impair the constitutional authority of the high court).

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3 As to contempt of court see CONTEMPT OF COURT[90.060] and following.

INTRODUCTION/[005.215] Interference by the Supreme Court
[005.215] Interference by the Supreme Court When a high court refuses to exercise its power of
superintendence1, the Supreme Court may, on appeal, exercise the power of superintendence in a suitable
case2.
2 Baldeo Singh v State of Bihar AIR 1957 SC 612 [LNIND 1957 SC 42] [LNIND 1957 SC 42] [LNIND 1957 SC 42], Baldeo
Singh v State of Bihar (1957) SCC 375 [LNIND 1957 SC 42] [LNIND 1957 SC 42] [LNIND 1957 SC 42], Baldeo Singh v State of
Bihar ILR 36 Pat 746; Honourable Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad v
State of Andhra Pradesh AIR 1997 AP 179 at 185, Honourable Secretary and Correspondent, Badruka College of Commerce
and Arts (Day), Hyderabad v State of Andhra Pradesh (1997) 4 Andh LT 1103, Honourable Secretary and Correspondent,
Badruka College of Commerce and Arts (Day), Hyderabad v State of Andhra Pradesh (1997) 1 Andh LD 282.

INTRODUCTION/[005.216] Civil Procedure and limitation
[005.216] Civil Procedure and limitation Provisions of the Civil Procedure Code 1908 do not apply to the
proceedings related to the supervisory jurisdiction of the high court. However, a high court may borrow a
principle from the Code to regulate the exercise of its discretion with regard to its supervisory jurisdiction1.
Similarly, the provisions of the Limitation Act 19632 do not, as such, apply to the proceedings related to the
supervisory jurisdiction of the high court. Although there is no specific period of limitation with regard to the
abovementioned proceedings, the high court may refuse to exercise its extraordinary power to condone
delay, where the petitioner is guilty of laches or undue delay in taking recourse to the high court, for which
there is no satisfactory explanation3. Hence each case is determined on the basis of facts and
circumstances4.
1 Puran Singh v State of Punjab AIR 1996 SC 1092 [LNIND 1996 SC 136] [LNIND 1996 SC 136] [LNIND 1996 SC 136], Puran
Singh v State of Punjab (1996) 2 SCC 205 [LNIND 1996 SC 136] [LNIND 1996 SC 136] [LNIND 1996 SC 136], Puran Singh v
State of Punjab (1996) 1 JT 362 [LNIND 1996 SC 136] [LNIND 1996 SC 136] [LNIND 1996 SC 136]; See Baldeo Singh v State
of Bihar AIR 1957 SC 612 [LNIND 1957 SC 42] [LNIND 1957 SC 42] [LNIND 1957 SC 42], Baldeo Singh v State of Bihar (1957)
SCC 375 [LNIND 1957 SC 42] [LNIND 1957 SC 42] [LNIND 1957 SC 42], Baldeo Singh v State of Bihar ILR 36 Pat 746;
Honourable Secretary and Correspondent, Badruka College of Commerce and Arts (Day), Hyderabad v State of Andhra
Pradesh AIR 1997 AP 179 at 185, Honourable Secretary and Correspondent, Badruka College of Commerce and Arts (Day),
Hyderabad v State of Andhra Pradesh (1997) 4 Andh LT 1103, Honourable Secretary and Correspondent, Badruka College of
Commerce and Arts (Day), Hyderabad v State of Andhra Pradesh (1997) 1 Andh LD 282 (the provisions of the Code of Civil
Procedure 1908 are not applicable to the proceedings under arts 226 and 227 of the Constitution to any extent except to borrow
any of the principles therein to exercise the discretion within the power under the very articles to render justice and for no other
purpose).
2 As to period of limitation see generally [205]LIMITATION OF ACTIONS.
3 Dehri Rohtas Light Railway Co Ltd v District Board, Bhojpur AIR 1993 SC 802 [LNIND 1992 SC 241] [LNIND 1992 SC 241]
[LNIND 1992 SC 241], Dehri Rohtas Light Railway Co Ltd v District Board, Bhojpur (1992) 2 SCC 598, Dehri Rohtas Light
Railway Co Ltd v District Board, Bhojpur [1992] 2 SCR 155 [LNIND 1992 SC 241] [LNIND 1992 SC 241] [LNIND 1992 SC 241];
State of Haryana v Bhajan Lal AIR 1992 SC 604, State of Haryana v Bhajan Lal (1992) Supp 1 SCC 335, State of Haryana v
Bhajan Lal [1990] Supp 3 SCR 259; State of Madhya Pradesh v Nandlal Jaiswal AIR 1987 SC 251 [LNIND 1986 SC 400]
303 112
Page
[LNIND 1986 SC 400] [LNIND 1986 SC 400], State of Madhya Pradesh v Nandlal Jaiswal (1986) 4 SCC 566 [LNIND 1986 SC
400] [LNIND 1986 SC 400] [LNIND 1986 SC 400], State of Madhya Pradesh v Nandlal Jaiswal [1987] 1 SCR 1 [LNIND 1986 SC
400] [LNIND 1986 SC 400] [LNIND 1986 SC 400].
4 See note 3 above.

INTRODUCTION/[005.217] Finality clause
[005.217] Finality clause The supervisory jurisdiction of the high court1 cannot be limited by any Act of the
Legislature2 and it can be exercised even when the decision of a tribunal3 is declared to be final and
conclusive by its parent statute because no statutory provision can override or limit a constitutional
provision4. The high court is empowered to not only quash the decision of the tribunal but also direct the
tribunal to conduct further inquiry before rendering a fresh decision5.
Rules made under a constitutional provision6 cannot curtail the scope of the power of the high court's
supervisory jurisdiction7. Under the Motor Vehicles Act 1988, an insurer is not entitled to appeal a decision of
the Claims Tribunal8 on the question of quantum of compensation awarded. However, the affected party
retains the right to invoke the revisional jurisdiction9 or the supervisory jurisdiction of the high court10.
A decision declared as 'final' by a constitutional provision is not beyond the scope of judicial review11. For
instance, the decision of the Speaker/Chairman of the House is declared 'final' on the question of
disqualification of a member of the House arising out of his defection from his political party12. Nevertheless,
despite the 'finality clause' in the Constitution, the decision of the Speaker/Chairman is subject to judicial
review, although on limited grounds, such as, an infirmity based on violation of a constitutional mandate,
mala fides, non-compliance with the rules of natural justice13 and perversity14.
An amendment to the Constitution seeking to exclude judicial review power of the superior courts would be
destructive of a basic feature of the Constitution15. The Supreme Court expressing similar views as regards
other finality clauses in the Constitution16 has held that the supervisory jurisdiction conferred upon the high
courts is part of the inviolable basic structure of the Constitution and hence cannot be ousted17.
Similarly, a constitutional provision cannot oust the high court's supervisory jurisdiction or the jurisdiciton of
the high court to entertain a writ petition challenging the validity of an election to a municipality18.
2 State of Gujarat v Vakhatsinghji Vajesinghji Vaghela (decd) by LRS AIR 1968 SC 1481 [LNIND 1968 SC 102] [LNIND 1968
SC 102] [LNIND 1968 SC 102], State of Gujarat v Vakhatsinghji Vajesinghji Vaghela (decd) by LRS [1968] 3 SCR 692 [LNIND
1968 SC 102] [LNIND 1968 SC 102] [LNIND 1968 SC 102]. See also Jetha Bai & Sons, Jew Town, Cochin v Sunderdas
Rathenai AIR 1988 SC 812 [LNIND 1988 SC 636] [LNIND 1988 SC 636] [LNIND 1988 SC 636], Jetha Bai & Sons, Jew Town,
Cochin v Sunderdas Rathenai (1988) 1 SCC 722 [LNIND 1988 SC 636] [LNIND 1988 SC 636] [LNIND 1988 SC 636], Jetha Bai
& Sons, Jew Town, Cochin v Sunderdas Rathenai [1988] 2 SCR 871 [LNIND 1988 SC 636] [LNIND 1988 SC 636] [LNIND 1988
SC 636]; Umaji Keshao Meshram v Radhikabai AIR 1986 SC 1272 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986
SC 77]at 1317, Umaji Keshao Meshram v Radhikabai (1986) Supp SCC 401 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND
1986 SC 77], Umaji Keshao Meshram v Radhikabai [1986] 1 SCR 731 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986
SC 77].
4 See note 2 above.
5 Jagdishlal Dhody v State of Madhya Pradesh AIR 1988 MP 5.

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7 See United India Insurance Co Ltd v Ramdas Patil AIR 2000 MP 63 [LNIND 1999 MP 171] [LNIND 1999 MP 171] [LNIND
1999 MP 171], United India Insurance Co Ltd v Ramdas Patil (2000) 1 MPLJ 442, United India Insurance Co Ltd v Ramdas
Patil (2000) 1 Jab LJ 255.
8 See Sarjubhai v Gurudip Singh 1994 ACJ 997. As to the definition of claims tribunal see [220]Motor Vehicles (the Claims
Tribunal is regarded as a 'court' subordinate to the high court for the purpose of Code of Civil Procedure 1908 s 115, as well as
a tribunal for purpose of the Constitution of India art 227).
9 Ie under the Code of Civil Procedure 1908 s 115: see CIVIL PROCEDURE[65.796] and following. Sarjubhai v Gurudip Singh
1994 ACJ 997.
(2000) 1 Jab LJ 255.
11 See note 14 below.
12 Ie under the the Constitution of India Schedule 10 para 6(1).
13 As to 'principles of natural justice' see [005.054].
14 Kihota Hollohon v Zachilhu AIR 1993 SC 412 [LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC 175], Kihota
Hollohon v Zachilhu (1992) Supp 2 SCC 651, Kihota Hollohon v Zachilhu [1992] 1 SCR 686 [LNIND 1992 SC 175] [LNIND 1992
SC 175] [LNIND 1992 SC 175].
15 Brundaban Nayak v Election Commission of India AIR 1965 SC 1892 [LNIND 1965 SC 40] [LNIND 1965 SC 40] [LNIND
1965 SC 40], Brundaban Nayak v Election Commission of India [1965] 3 SCR 53 [LNIND 1965 SC 40] [LNIND 1965 SC 40]
[LNIND 1965 SC 40].
16 Ie the Constitution of India arts 192 and 331(3). Union of India v Jyoti Prakash Mitter AIR 1971 SC 1093 [LNIND 1971 SC
54] [LNIND 1971 SC 54] [LNIND 1971 SC 54], Union of India v Jyoti Prakash Mitter (1971) 1 SCC 396 [LNIND 1971 SC 54]
[LNIND 1971 SC 54] [LNIND 1971 SC 54], Union of India v Jyoti Prakash Mitter [1971] 3 SCR 483 [LNIND 1971 SC 54] [LNIND
1971 SC 54] [LNIND 1971 SC 54].
Chandra Kumar v Union of India (1997) 3 JT 589.
18 Lal Chand v State of Haryana AIR 1999 P & H 1, Lal Chand v State of Haryana (1998) ILR 2 P & H 290, Lal Chand v State
of Haryana (1998) 119 Punj LR 640.

ADMINISTRATIVE LAW/17.HIGH COURT'S SUPERINTENDENCE OVER TRIBUNALS/(2) APPLICABILITY
OF POWER OF SUPERINTENDENCE/[005.218] Exhaustion of remedies
[005.218] Exhaustion of remedies The rule that the statutory remedy provided ought to be exhausted
before the petitioner takes re course to the high court's jurisdiction, applicable to writ petitions,1 is applied to
proceedings related to supervisory jurisdiction2.
Where an adequate alternative remedy, appropriate or equally efficacious, is available to the concerned
party, then the high court must not exercise its supervisory jurisdiction3.
A writ petition challenging the decision of the adjudicating officer under Foreign Exchange Regulation Act
19734 may be quashed on the grounds of not having exhausted the available remedy5. Similarly, where the
Consumer Protection Act 1986, a complete code by itself, provides for a liberal procedure of appeal against
an order passed by the district forum and by the state commission, no recourse may be had to the
supervisory jurisdicition of the high court as an alternative remedy against an order made under the Act6.
Similarly, altemative remedy may not be sought to avoid a certain obligation7. For instance, where an
appellant files a petition under the supervisory jurisdiction of the high court to avoid payment of the deposit
as prescribed by the Banks and Financial Institution Act 19938, altemative remedy operates as a bar and will
305 114
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be denied by the court9. However, the order of the appellate tribunal may be challenged under the
supervisory jurisdiction of the high court, since no higher forum is constituted to hear an appeal against the
appellate order.
Moreover, the principle of exhaustion of remedies is not rigid, and in appropriate cases, the high court retains
its power of superintendence over a tribunal10. Despite the existence of an alternative legal remedy, the high
court may deem fit to intervene in favour of a petitioner under its supervisory juridiction11.
Prior to the establishment of the Railway claims Tribunal under the Railway Claims Tribunal Act 1987, the
liability of the railway administration in respect of accidents to trains carrying passengers was determined in
accordance with the provisions contained in Indian Railway Act 198012. An appeal from the decision of the
claims commissioner appointed under the Act13, could be filed with the high court by the aggrieved party14.
Similarly, the Supreme Court has ruled that, where the authority concerned fails to exercise the jurisdiction
conferred on him by law, the high court has the power and authority to interfere under its supervisory
jurisdiction15.
Under Motor Vehicles Act 1988, the judgment of the claims tribunal is reviewable by the high court on certain
grounds16. However, an applilcation for judicial review is maintainable, against an award of the tribunal under
the Act, at the instance of the insurer on the grounds other than those mentioned in the Act17.
Furthermore, when the statutory power of revision provided to the high court is inadequate, the court can
take recourse to its supervisory power18. When a statute provides for an appeal from the final decision of a
tribunal, the high court can set aside any interlocutory order passed by the tribunal19.
1 As to princple of exhaustion of remedies see [80]CONSTITUTIONAL LAW.
2 Ie under the Consitution of Indiaart 227: see [005.212]. Mohd Yunus v Mohd Mustaqim AIR 1984 SC 38 [LNIND 1983 SC
282] [LNIND 1983 SC 282] [LNIND 1983 SC 282], Mohd Yunus v Mohd Mustaqim (1983) 4 SCC 566 [LNIND 1983 SC 282]
[LNIND 1983 SC 282] [LNIND 1983 SC 282], Mohd Yunus v Mohd Mustaqim [1984] 1 SCR 211 [LNIND 1983 SC 282] [LNIND
1983 SC 282] [LNIND 1983 SC 282]; K K Shrivastava v Bhupendra Kumar Jain AIR 1977 SC 1703, K K Shrivastava v
Bhupendra Kumar Jain (1977) 2 SCC 494, K K Shrivastava v Bhupendra Kumar Jain (1977) UJ 344; A Venkatasubbiah Naidu
v S Chellappan [2000] 4 LRI 1023, A Venkatasubbiah Naidu v S Chellappan AIR 2000 SC 3032 [LNIND 2000 SC 2275] [LNIND
2000 SC 2275] [LNIND 2000 SC 2275], A Venkatasubbiah Naidu v S Chellappan (2000) 7 SCC 695 [LNIND 2000 SC 2275]
[LNIND 2000 SC 2275] [LNIND 2000 SC 2275] (though no hurdle can be placed against the exercise of the constitutional
powers of the high court, it is a well recognised principle which gained judicial recognition that the high court should direct the
party to avail himself of such remedies one or the other before he resorts to a constitutional remedy).
3 K K Shrivastava v Bhupendra Kumar Jain AIR 1977 SC 1703, K K Shrivastava v Bhupendra Kumar Jain (1977) 2 SCC 494,
K K Shrivastava v Bhupendra Kumar Jain (1977) UJ 344; V Savarimuthu v Special Director of Enforcement AIR 1987 Mad 11
[LNIND 1985 MAD 260] [LNIND 1985 MAD 260] [LNIND 1985 MAD 260], V Savarimuthu v Special Director of Enforcement
(1986) 1 Mad LJ 206, V Savarimuthu v Special Director of Enforcement (1986) 99 Mad LW 77 [LNIND 1985 MAD 260] [LNIND
1985 MAD 260] [LNIND 1985 MAD 260].
6 ANZ Grindlays Bank v President, District Consumer Dispute Redressal Forum AIR 1995 Cal 104 [LNIND 1995 CAL 11]
[LNIND 1995 CAL 11] [LNIND 1995 CAL 11]; Binod Behari Das v Soma Roy AIR 1996 Cal 231 [LNIND 1996 CAL 17] [LNIND
1996 CAL 17] [LNIND 1996 CAL 17], Binod Behari Das v Soma Roy (1996) 1 Cal HN 336, Binod Behari Das v Soma Roy
(1996) 2 CPR 129; Tapan Kumar Mukhoty v Bank of Madura Ltd AIR 1999 Cal 305 [LNIND 1999 CAL 94] [LNIND 1999 CAL
94] [LNIND 1999 CAL 94].
7 Sushil Kumar Jaiswal v Bank of India AIR 1996 Cal 323 [LNIND 1996 CAL 37] [LNIND 1996 CAL 37] [LNIND 1996 CAL 37],
Sushil Kumar Jaiswal v Bank of India (1996) 100 Cal WN 627, Sushil Kumar Jaiswal v Bank of India (1996) 2 Cal HN 544.
8 Ie the Bank and Finance Acts 20.
9 Sushil Kumar Jaiswal v Bank of India AIR 1996 Cal 323 [LNIND 1996 CAL 37] [LNIND 1996 CAL 37] [LNIND 1996 CAL 37],
Sushil Kumar Jaiswal v Bank of India (1996) 100 Cal WN 627, Sushil Kumar Jaiswal v Bank of India (1996) 2 Cal HN 544;
Pratap Ch Dey v Allahabad Bank AIR 1997 Cal 96 [LNIND 1996 CAL 255] [LNIND 1996 CAL 255] [LNIND 1996 CAL 255],
Pratap Ch Dey v Allahabad Bank (1997) 1 Cal HN 232.
306 115
Page
10 Union of India v Ad-hoc Claims Comr AIR 1977 Cal 393 [LNIND 1977 CAL 53] [LNIND 1977 CAL 53] [LNIND 1977 CAL 53],
Union of India v Ad-hoc Claims Comr 81 Cal WN 649, Union of India v Ad-hoc Claims Comr (1977) 1 Cal LJ 456 [LNIND 1977
CAL 53] [LNIND 1977 CAL 53] [LNIND 1977 CAL 53].
11 Sarada Bai v Shakuntala Bai AIR 1993 AP 20 [LNIND 1992 AP 231] [LNIND 1992 AP 231] [LNIND 1992 AP 231], Sarada
Bai v Shakuntala Bai (1992) 2 Andh LT 660 [LNIND 1992 AP 231] [LNIND 1992 AP 231] [LNIND 1992 AP 231]; Lal Deen v
State of Rajasthan AIR 1983 Raj 225, Lal Deen v State of Rajasthan (1982) Raj LR 1013, Lal Deen v State of Rajasthan (1982)
WLN 217 (the rule that when there is an alternative remedy the high court will not interfere under art 226 is a rule of discretion
and expediency and not one of jurisdiction or limitation on the powers of the court. The high court may, in exceptional
circumstances, issue a writ notwithstanding the fact that the statutory remedies have not been exhausted, depending on the
facts and circumstances of the each case).
12 Ie the Indian Railway Act 1980 s 82A-82J.
13 Ie under the Indian Railway Act 1980 s 82A.
14 Union of India v Ad-hoc Claims Comr AIR 1977 Cal 393 [LNIND 1977 CAL 53] [LNIND 1977 CAL 53] [LNIND 1977 CAL 53],
Union of India v Ad-hoc Claims Comr 81 Cal WN 649, Union of India v Ad-hoc Claims Comr (1977) 1 Cal LJ 456 [LNIND 1977
CAL 53] [LNIND 1977 CAL 53] [LNIND 1977 CAL 53](the question which the Calcutta High Court was called upon to determine
was whether an application under the Constitution of India art 227 was maintainable in the high court to question the decision of
the claims commissioner when under the relevant statute there was provision for an appeal to the high court. The high court
answered in the affirmative. The ground for impugning the decision of the claims commissioner in the instant case was that the
manner of determination of the amount of compensation was not authorised or warranted by the relevant law, and, accordingly,
such determination was without jurisdiction. The challenge thus being on the ground of jurisdictional error, a petition under art
227 was held maintainable to challenge his decision). See also Collector of Customer and Excise, Cochin v A S Bava AIR 1968
SC 13 [LNIND 1967 SC 215] [LNIND 1967 SC 215] [LNIND 1967 SC 215], Collector of Customer and Excise, Cochin v A S
Bava [1968] 1 SCR 82 [LNIND 1967 SC 215] [LNIND 1967 SC 215] [LNIND 1967 SC 215], Collector of Customer and Excise,
Cochin v A S Bava (1968) 1 SCJ 658 [LNIND 1967 SC 215] [LNIND 1967 SC 215] [LNIND 1967 SC 215].
15 Tayabali Jaferbhai Tankiwala v Ahsan & Co AIR 1971 SC 102 [LNIND 1969 SC 361] [LNIND 1969 SC 361] [LNIND 1969
SC 361], Tayabali Jaferbhai Tankiwala v Ahsan & Co (1970) 1 SCC 46 [LNIND 1969 SC 361] [LNIND 1969 SC 361] [LNIND
1969 SC 361], Tayabali Jaferbhai Tankiwala v Ahsan & Co [1970] 2 SCR 554 [LNIND 1969 SC 361] [LNIND 1969 SC 361]
[LNIND 1969 SC 361](the rent controller passed an order directing recovery of possession of certain premises under the Delhi
Rent Control Act 1958. The petitioner challenged the order under the Constitution of India art 227 before the Delhi High Court
on the gound that the impugned order was made without issuing a notice to him. The respondent contended that the petitioner
should have appealed against the order before the Rent Control Tribunal before approaching the high court under art 227. The
court pointed out that the rule of exhaustion of alternative remedy is not an inexorable one and the court can exercise its power
of superintendence even where the party has not exhausted the alternative remedy. In the instant case, the court intervened
mainly because no notice had been given to the tenant before passing the order to vacate the premises and, thus, there was
violation of natural justice. The party must be relegated to the same position as he had stood before).
16 Motor Vehicles Act 1988 s 149.
17 Milan Rani Saha v New India Assurance Co Ltd, Agartala AIR 2000 Gau 136 [LNIND 2000 GAU 42] [LNIND 2000 GAU 42]
[LNIND 2000 GAU 42], Milan Rani Saha v New India Assurance Co Ltd, Agartala (2000) AIHC 3531, Milan Rani Saha v New
India Assurance Co Ltd, Agartala (2000) 2 Gau LR 623 New India Insurance Co Ltd, Bhopal v Rafeeka Sultana AIR 2001 MP
116 [LNIND 2000 MP 499] [LNIND 2000 MP 499] [LNIND 2000 MP 499]at 135, New India Insurance Co Ltd, Bhopal v Rafeeka
Sultana (2000) 3 MPLJ 561, New India Insurance Co Ltd, Bhopal v Rafeeka Sultana (2001) 1 Jab LJ 1 (quantum of
compensation under the motor vehicles act 1988 s 168 cannot be challenged under 227 as this negates the power conferred
upon the claims tribunals-air 2000 mp overruled).
18 Baby v Travancore Devaswom Board AIR 1999 SC 519 [LNIND 1998 SC 998] [LNIND 1998 SC 998] [LNIND 1998 SC 998],
Baby v Travancore Devaswom Board (1998) 8 SCC 310 [LNINDORD 1998 SC 12] [LNINDORD 1998 SC 12] [LNINDORD 1998
SC 12], Baby v Travancore Devaswom Board (1998) 7 JT 552.
19 Pratap Ch Dey v Allahabad Bank AIR 1997 Cal 96 [LNIND 1996 CAL 255] [LNIND 1996 CAL 255] [LNIND 1996 CAL 255],
Pratap Ch Dey v Allahabad Bank (1997) 1 Cal HN 232.

OF POWER OF SUPERINTENDENCE/[005.219] Locus standi
[005.219] Locus standi The petitioner ought to have locus standi to file a petition under the supervisory
jurisdiction of the high court1.
307 116
Page
For instance, construction of unauthorized buildings constitutes a serious threat to public health and the
unauthorized construction by the builder constitutes an act of aggression of the rights of the neighbours2.
Hence it is competent for a neighbour to approach the high court under its supervisory jurisdiction for
declaring an order regularizing unauthorised construction as illegal and unjust3.
1 Sarada Bai v Shakuntala Bai AIR 1993 AP 20 [LNIND 1992 AP 231] [LNIND 1992 AP 231] [LNIND 1992 AP 231], Sarada Bai
v Shakuntala Bai (1992) 2 Andh LT 660 [LNIND 1992 AP 231] [LNIND 1992 AP 231] [LNIND 1992 AP 231].
2 See note 1 above.
3 Sarada Bai v Shakuntala Bai AIR 1993 AP 20 [LNIND 1992 AP 231] [LNIND 1992 AP 231] [LNIND 1992 AP 231], Sarada Bai
v Shakuntala Bai (1992) 2 Andh LT 660 [LNIND 1992 AP 231] [LNIND 1992 AP 231] [LNIND 1992 AP 231]; see also K
Ramadas Shenoy v The Chief Officers, Town Municipal Council, Udipi AIR 1974 SC 2177 [LNIND 1974 SC 225] [LNIND 1974
SC 225] [LNIND 1974 SC 225], K Ramadas Shenoy v The Chief Officers, Town Municipal Council, Udipi (1974) 2 SCC 506
[LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC 225], K Ramadas Shenoy v The Chief Officers, Town Municipal
Council, Udipi [1975] 1 SCR 680 [LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC 225].

OF POWER OF SUPERINTENDENCE/[005.220] New plea
[005.220] New plea A question of law, which does not require any investigation of facts, Can be raised the
first time before the high court in a proceeding related to supervisory jurisdiction1. However, an issue
requiring investigation into facts, will not be allowed to be raised for the first time in the high court2.
A question of fact can be determined only on the basis of evidence on record3.
1 As to power of superintendence of a high court see [005.212].
2 Pfizer Ltd v Mazdoor Congress AIR 1996 SC 2618 [LNIND 1996 SC 1263] [LNIND 1996 SC 1263] [LNIND 1996 SC 1263],
Pfizer Ltd v Mazdoor Congress (1996) 5 SCC 609 [LNIND 1996 SC 1263] [LNIND 1996 SC 1263] [LNIND 1996 SC 1263],
Pfizer Ltd v Mazdoor Congress (1996) 7 JT 239.
3 State of Orissa v Murlidhar Jena AIR 1963 SC 404 [LNIND 1961 SC 545] [LNIND 1961 SC 545] [LNIND 1961 SC 545];
Trimbak Gangadhar Telang v Ramchandra Ganesh Bhide AIR 1977 SC 1222, Trimbak Gangadhar Telang v Ramchandra
Ganesh Bhide (1977) 2 SCC 437, Trimbak Gangadhar Telang v Ramchandra Ganesh Bhide (1977) UJ 167; M M Amonkar v
SA Johari AIR 1984 SC 931 [LNIND 1984 SC 50] [LNIND 1984 SC 50] [LNIND 1984 SC 50], M M Amonkar v SA Johari (1984)
2 SCC 354 [LNIND 1984 SC 50] [LNIND 1984 SC 50] [LNIND 1984 SC 50], M M Amonkar v SA Johari [1984] 2 SCR 646
[LNIND 1984 SC 50] [LNIND 1984 SC 50] [LNIND 1984 SC 50]; Labhkuwar Bhagwani Shaha v Janardhan Mahadeo Kalan AIR
1983 SC 535, Labhkuwar Bhagwani Shaha v Janardhan Mahadeo Kalan (1982) 3 SCC 514, Labhkuwar Bhagwani Shaha v
Janardhan Mahadeo Kalan (1982) 2 Scale 1342; India Pipe Fitting Co v Fakruddin MA Baker AIR 1978 SC 45 [LNIND 1977 SC
306] [LNIND 1977 SC 306] [LNIND 1977 SC 306]at 47, India Pipe Fitting Co v Fakruddin MA Baker (1977) 4 SCC 587 [LNIND
1977 SC 306] [LNIND 1977 SC 306] [LNIND 1977 SC 306], India Pipe Fitting Co v Fakruddin MA Baker [1978] 1 SCR 597
[LNIND 1977 SC 281] [LNIND 1977 SC 281] [LNIND 1977 SC 281]; Ganpat Ladha v Sashikant Vishnu Shinde AIR 1978 SC
955 [LNIND 1978 SC 66] [LNIND 1978 SC 66] [LNIND 1978 SC 66], Ganpat Ladha v Sashikant Vishnu Shinde (1978) 2 SCC
573 [LNIND 1978 SC 66] [LNIND 1978 SC 66] [LNIND 1978 SC 66]; Maruti Bala Raut v Dashrath Babu Wathere AIR 1974 SC
2051 [LNIND 1974 SC 251] [LNIND 1974 SC 251] [LNIND 1974 SC 251], Maruti Bala Raut v Dashrath Babu Wathere (1974) 2
SCC 615 [LNIND 1974 SC 251] [LNIND 1974 SC 251] [LNIND 1974 SC 251], Maruti Bala Raut v Dashrath Babu Wathere
[1975] 1 SCR 899 [LNIND 1974 SC 251] [LNIND 1974 SC 251] [LNIND 1974 SC 251]; Shaik Mahamad Umarsaheb v
Kadalaskar Hasham Karimsab AIR 1970 SC 61 [LNIND 1969 SC 111] [LNIND 1969 SC 111] [LNIND 1969 SC 111], Shaik
Mahamad Umarsaheb v Kadalaskar Hasham Karimsab [1969] 3 SCR 966, Shaik Mahamad Umarsaheb v Kadalaskar Hasham
Karimsab (1970) 1 SCJ 245.

OF POWER OF SUPERINTENDENCE/[005.221] Findings of fact by the tribunal
308 117
Page
[005.221] Findings of fact by the tribunal The high court, in exercise of its supervisory jurisdiction
conferred by the Constitution1, will not interfere with the findings of fact arrived by a tribunal2. The power of
superintendence cannot be invoked to correct an error of fact which only a superior court can do in exercise
of its statutory power as a court of appeal3. Where the high court acts in a supervisory, and not in an
appellate capacity, the court is not intended to convert itself into a court of appeal and examine for itself the
correctness of the decision impugned and decide what is the proper view to be taken or the order to be
made4. The Supreme Court may object to the high court discussing and assessing the evidence for itself and
considering the merits of the tribunal's decision, a function which is deemed to be beyond the supervisory
role assigned to the high court5.
However, the high court is competent to quash the judgment of the subordinate court, if a substantial portion
of the evidence relied on by the tribunal is found to be inadmissible, or of no evidential value, or if a finding of
fact is not supported by any evidence5, or is based on manifest misreading of evidence, or if its conclusions
are perverse6. Similarly, the high court, in exercise of its supervisory jurisdiction, Can quash tribunal orders
based on findings of fact arrived at by non-consideration of relevant and material documents7.
Moreover, since the power of superintendence of a high court is not in the nature of power of appellate
authority enabling re-appreciation of evidence, the court cannot alter the conclusions reached by a tribunal
on facts merely on the ground of insufficiency of evidence8.
The high court in its supervisory capacity cannot set aside findings of fact reached by a tribunal where two
views are possible, unless the finding was found to be patently bad and suffering from clear errors of law9.
Some of the grounds on which a high court can interfere with the findings of fact by a tribunal, under its
power of superintendence, are:
(1) if the tribunal considers inadmissible pieces of evidence in arriving at its conclusions;
(2) if the tribunal ignores material pieces of evidence from the purview of its consideration;
(3) if the conclusions of fact are not supported by evidence;
(4) if the finding is perverse, ie on the materials before the tribunal; it is not possible for a
reasonable man to come to a conclusion arrived at by the tribunal10.
Furthermore, the high court, based on the abovementioned grounds, is entitled to set aside or ignore the
findings of fact by the tribunal but is not entitled to alter the award11. Where the high court set aside the
industrial tribunal's direction for reinstatement of the dismised employee and substituted in its place the relief
of compensation to the employee, the Supreme Court quashed the order of the high court on the ground that
the high court in exercise of the jurisdiction of superintendence cannot substitute one finding for another and
similarly one punishment for another12.
1 Ie under the Consitution of Indiaart 227: see [005.212].
2 Dattatraya Laxman Kamble v Abdul Rasul Moulali Kotkune [1999] 3 LRI 3, Dattatraya Laxman Kamble v Abdul Rasul Moulali
Kotkune AIR 1999 SC 2226 [LNIND 1999 SC 462] [LNIND 1999 SC 462] [LNIND 1999 SC 462], Dattatraya Laxman Kamble v
Abdul Rasul Moulali Kotkune (1999) 4 SCC 1 [LNIND 1999 SC 462] [LNIND 1999 SC 462] [LNIND 1999 SC 462]; Babhutmal
Raichand Oswal v Laxmibai R Tarte AIR 1975 SC 1297, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) 1 SCC 858,
Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) UJ 220.
3 Babhutmal Raichand Oswal v Laxmibai R Tarte AIR 1975 SC 1297, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) 1
SCC 858, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) UJ 220; Rena Drego v Lalchand Soni AIR 1998 SC 1990
[LNIND 1998 SC 1178] [LNIND 1998 SC 1178] [LNIND 1998 SC 1178], Rena Drego v Lalchand Soni (1998) 3 SCC 341 [LNIND
1998 SC 1178] [LNIND 1998 SC 1178] [LNIND 1998 SC 1178], Rena Drego v Lalchand Soni (1998) 2 JT 369; Chandra
Bhushan (decd) by LRS v Beni Prasad AIR 1999 SC 2266, Chandra Bhushan (decd) by LRS v Beni Prasad (1999) 1 SCC 70,
Chandra Bhushan (decd) by LRS v Beni Prasad AIR 1999 SCW 2309; Gopala Ganu Wagale v Shri Nageshwardeo Patas
Abhishekh Anusthan Trust, Patas AIR 1978 SC 347, Gopala Ganu Wagale v Shri Nageshwardeo Patas Abhishekh Anusthan
Trust, Patas (1978) 2 SCC 47; Satyanarayan M Sakaria v Vithaldas Shyamlal Jhaveri 1994 Supp 1 SCC 614, Satyanarayan M
Sakaria v Vithaldas Shyamlal Jhaveri (1995) 2 Ren CR 284.
4 Shama Prashant Raje v Ganpat Rao AIR 2000 SC 3094 [LNIND 2000 SC 1308] [LNIND 2000 SC 1308]at 3097, Shama
Prashant Raje v Ganpat Rao (2000) 7 SCC 522 [LNIND 2000 SC 1308] [LNIND 2000 SC 1308], Shama Prashant Raje v
309 118
Page
Ganpat Rao (2000) 1 JT Supp 59; see Raghunathe Jew at Bhapur v State of Orissa AIR 1999 SC 693 [LNIND 1998 SC 1088]
[LNIND 1998 SC 1088] [LNIND 1998 SC 1088], Raghunathe Jew at Bhapur v State of Orissa (1999) 1 SCC 488 [LNIND 1998
SC 1088] [LNIND 1998 SC 1088] [LNIND 1998 SC 1088], Raghunathe Jew at Bhapur v State of Orissa (1998) 8 JT 483 [LNIND
1998 SC 1088] [LNIND 1998 SC 1088] [LNIND 1998 SC 1088]; Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher (decd)
through LRS AIR 2000 SC 931 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406], Mohan Amba Prasad
Agnihotri v Bhaskar Balwant Aher (decd) through LRS (2000) 3 SCC 190 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND
2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher (decd) through LRS (2000) 2 JT 558 [LNIND 2000 SC
406] [LNIND 2000 SC 406] [LNIND 2000 SC 406]; State of Maharashtra v Milind [2001] 4 LRI 1025, State of Maharashtra v
Milind AIR 2001 SC 393 [LNIND 2000 SC 1675] [LNIND 2000 SC 1675] [LNIND 2000 SC 1675], State of Maharashtra v Milind
(2001) 1 SCC 4 [LNIND 2000 SC 1675] [LNIND 2000 SC 1675] [LNIND 2000 SC 1675]; Savita Chemicals (Pvt) Ltd v Dyes and
Chemicals Workers Union AIR 1999 SC 413 [LNIND 1998 SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099]at 427,
Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers Union (1999) 2 SCC 143 [LNIND 1998 SC 1099] [LNIND 1998 SC
1099] [LNIND 1998 SC 1099], Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers Union (1998) 8 JT 552 [LNIND 1998
SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099] (the Supreme Court held that the high court was justified in setting
aside the findings of the Labour Court with the following observation that the findings reached by the Labour Court on the
relevant terms were patently erroneous and dehors the factual and legal position on record. The said patently illegal findings
could not have been countenanced under art 227 of the Constitution by the high court and the court would have failed to
exercise its jurisdiction if it had not set aside such patently illegal findings of the Labour Court).
5 Maruti Bala Raut v Dashrath Babu Wathere AIR 1974 SC 2051 [LNIND 1974 SC 251] [LNIND 1974 SC 251] [LNIND 1974
SC 251], Maruti Bala Raut v Dashrath Babu Wathere (1974) 2 SCC 615 [LNIND 1974 SC 251] [LNIND 1974 SC 251] [LNIND
1974 SC 251], Maruti Bala Raut v Dashrath Babu Wathere [1975] 1 SCR 899 [LNIND 1974 SC 251] [LNIND 1974 SC 251]
[LNIND 1974 SC 251] (under the Bombay Tenancy Acts 76, the revenue tribunal is empowered to revise the collector's order on
the following grounds: (1) order is contrary to law; (ii) the collector failed to determine some material issue of law; (iii) there was
a substantial procedural defect resulting in miscarriage of justice. The Supreme Court ruled that the tribunal's order reversing
the collector's order was an excess of power on the tribunal's part, because not being an appellate body, the tribunal,
nevertheless, examined the evidence elaborately and after discussing the same, it set aside the collector's order. Similarly, the
high court while exercising its powers under art 227 of the Constitution was not entitled to discuss the entire evidence and come
to its own conclusions on the evidence and hold the tribunal to be wrong. Had the high court been content with holding that the
tribunal was not justified to interfere with the findings of fact as recorded by the special collector there could be no objection to
its order; but, instead of that, the high court discussed the entire evidence and came to its own conclusions and it also said that
even if the tribunal's judgment were to be considered on merits it was wholly unsupportable; this was going beyond the scope of
art 227).
6 Achutananda Baidya v Prafullya Kumar Gayen AIR 1997 SC 2077 [LNIND 1997 SC 652] [LNIND 1997 SC 652] [LNIND
1997 SC 652]at 2079, Achutananda Baidya v Prafullya Kumar Gayen (1997) 5 SCC 76 [LNIND 1997 SC 652] [LNIND 1997 SC
652] [LNIND 1997 SC 652], Achutananda Baidya v Prafullya Kumar Gayen (1997) 5 JT 75; State of Maharashtra v Milind
[2001] 4 LRI 1025, State of Maharashtra v Milind AIR 2001 SC 393 [LNIND 2000 SC 1675] [LNIND 2000 SC 1675] [LNIND
2000 SC 1675], State of Maharashtra v Milind (2001) 1 SCC 4 [LNIND 2000 SC 1675] [LNIND 2000 SC 1675] [LNIND 2000 SC
1675]; see Chandavarkar Sita Ratna Rao v Ashalata S Guram AIR 1987 SC 117, Chandavarkar Sita Ratna Rao v Ashalata S
Guram (1986) 4 SCC 447, Chandavarkar Sita Ratna Rao v Ashalata S Guram [1986] 3 SCR 866 (it is true that in exercise of
jurisdiction under art 227 of the Constitution the High Court could go into the question of fact or look into the evidence if justice
so requires it; if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence; but the High
Court should decline to exercise its jurisdiction under arts 226 and 227 of the Constitution to look into the fact in the absence of
clear and cut down reasons where the question depends upon the appreciation of evidence. The high court also should not
interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and not based on any
material evidence or it resulted in manifest in justice).
7 Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher(decd) through LRS AIR 2000 SC 931 [LNIND 2000 SC 406] [LNIND
2000 SC 406] [LNIND 2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher(decd) through LRS (2000) 3 SCC
190 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant
Aher(decd) through LRS (2000) 2 JT 558 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406].
8 Baby v Travancore Devaswom Board AIR 1999 SC 519 [LNIND 1998 SC 998] [LNIND 1998 SC 998] [LNIND 1998 SC 998],
Baby v Travancore Devaswom Board (1998) 8 SCC 310 [LNINDORD 1998 SC 12] [LNINDORD 1998 SC 12] [LNINDORD 1998
SC 12], Baby v Travancore Devaswom Board (1998) 7 JT 552; Union of India v Himmat Singh Chahar [1999] 3 LRI 649, Union
of India v Himmat Singh Chahar AIR 1999 SC 1980 [LNIND 1999 SC 542] [LNIND 1999 SC 542] [LNIND 1999 SC 542], Union
of India v Himmat Singh Chahar (1999) 4 SCC 521 [LNIND 1999 SC 542] [LNIND 1999 SC 542] [LNIND 1999 SC 542] (the
power of superintendence cannot be a power of an appellate authority permitting the court to reappreciate the evidence and in
coming to a conclusion that the evidence is insufficient for the conclusion arrived at by the competent authorities;
notwithstanding the finality of the orders of the competent authority in court martial proceedings, the high court is entitled to
exercise its power of judicial review by invoking jurisdiction under the Consitution of Indiaart 226 but that would be for a limited
purpose for finding out whether there has been infraction of any mandatory provision of the Act prescribing the procedure which
has caused gross miscarriage of justice or for finding out that whether there has been violaion of the orincuples of natural
justice which vitiates the entire proceeding or that the authority exercsing the jurisdiction has not been vested with the
jurisdiction under the Act). See Mani Nariman Daruwala and Bharucha (decd) through LRS v Phiroze N Bhatena AIR 1991 SC
1494, Mani Nariman Daruwala and Bharucha (decd) through LRS v Phiroze N Bhatena (1991) 3 SCC 141, Mani Nariman
Daruwala and Bharucha (decd) through LRS v Phiroze N Bhatena (1991) 5 JT 357 (in the instant case, the Supreme Court
ruled that the findings record by the lower court did not suffer from any infirmity so as to justify interference with the said
fundings under art 227); see also Reliance Industries Ltd v Parvinbhai Jasbhai Patel AIR 1997 SC 3892 [LNIND 1997 SC 1138]
310 119
Page
[LNIND 1997 SC 1138] [LNIND 1997 SC 1138], Reliance Industries Ltd v Parvinbhai Jasbhai Patel (1997) 7 JT 618 [LNIND
1997 SC 1138] [LNIND 1997 SC 1138] [LNIND 1997 SC 1138], Reliance Industries Ltd v Parvinbhai Jasbhai Patel (1997) 5
Scale 633 [LNIND 1997 SC 1138] [LNIND 1997 SC 1138] [LNIND 1997 SC 1138]; Virendra Kashinath Ravat v Vinayak N Joshi
AIR 1999 SC 162 [LNIND 1998 SC 1008] [LNIND 1998 SC 1008] [LNIND 1998 SC 1008], Virendra Kashinath Ravat v Vinayak
N Joshi (1998) 7 JT 596, Virendra Kashinath Ravat v Vinayak N Joshi (1998) 3 SCJ 529.
9 Maruti Bala Raut v Dashrath Babu Wathere AIR 1974 SC 2051 [LNIND 1974 SC 251] [LNIND 1974 SC 251] [LNIND 1974
SC 251], Maruti Bala Raut v Dashrath Babu Wathere (1974) 2 SCC 615 [LNIND 1974 SC 251] [LNIND 1974 SC 251] [LNIND
1974 SC 251], Maruti Bala Raut v Dashrath Babu Wathere [1975] 1 SCR 899 [LNIND 1974 SC 251] [LNIND 1974 SC 251]
[LNIND 1974 SC 251]; see Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers Union AIR 1999 SC 413 [LNIND 1998
SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099]at 427, Savita Chemicals (Pvt) Ltd v Dyes and Chemicals Workers
Union (1999) 2 SCC 143 [LNIND 1998 SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099], Savita Chemicals (Pvt) Ltd v
Dyes and Chemicals Workers Union (1998) 8 JT 552 [LNIND 1998 SC 1099] [LNIND 1998 SC 1099] [LNIND 1998 SC 1099].
10 DN Banerji v PR Mukherjee AIR 1953 SC 58 [LNIND 1952 SC 85] [LNIND 1952 SC 85] [LNIND 1952 SC 85]at 59, DN
Banerji v PR Mukherjee [1953] SCR 302 [LNIND 1952 SC 85] [LNIND 1952 SC 85] [LNIND 1952 SC 85], DN Banerji v PR
Mukherjee (1953) SCJ 19 [LNIND 1952 SC 85] [LNIND 1952 SC 85] [LNIND 1952 SC 85]; Puzhakal Edam alias Puthen Edon
v Kunchappan AIR 1974 Ker 210 [LNIND 1974 KER 42] [LNIND 1974 KER 42] [LNIND 1974 KER 42], Puzhakal Edam alias
Puthen Edon v Kunchappan (1974) Ker LT 519 [LNIND 1974 KER 42] [LNIND 1974 KER 42] [LNIND 1974 KER 42];
Babhutmal Raichand Oswal v Laxmibai R Tarte AIR 1975 SC 1297, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) 1
SCC 858, Babhutmal Raichand Oswal v Laxmibai R Tarte (1975) UJ 220; Chandavarkar Sita Ratna Rao v Ashalata S Guram
AIR 1987 SC 117, Chandavarkar Sita Ratna Rao v Ashalata S Guram (1986) 4 SCC 447, Chandavarkar Sita Ratna Rao v
Ashalata S Guram [1986] 3 SCR 866 (in exercise of jurisdiction under art 227 of the Constitution the high court could go into the
question of fact or look into the evidence, if justice so requires it, if there is any misdirection in law or if a view of fact taken is
taken in preponderance of evidence; but the high court should decline to exercise its jurisdiction under arts 226 and 227 of the
Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the
appreciation of evidence. The high court also should not interfere with a finding within the jurisdiction of the inferior tribunal
except where the findings are perverse and not based on any material evidence or it resulted in manifest in justice): see notes
5-7 above.
11 Jitendra Singh Rathor v Shri Baidyanath Ayurved Bhawan Ltd AIR 1984 SC 976 [LNIND 1984 SC 78] [LNIND 1984 SC 78]
[LNIND 1984 SC 78]at 978, Jitendra Singh Rathor v Shri Baidyanath Ayurved Bhawan Ltd (1984) 3 SCC 5 [LNIND 1984 SC 78]
[LNIND 1984 SC 78] [LNIND 1984 SC 78], Jitendra Singh Rathor v Shri Baidyanath Ayurved Bhawan Ltd [1984] 3 SCR 223
[LNIND 1984 SC 78] [LNIND 1984 SC 78] [LNIND 1984 SC 78] (the high court under art 227 of the Constitution is entitiled to
scrutinise the orders of subordinate tribunals but it cannot exercise the powers of a tribunal and substitute an award in place of
one made by the tribunal as in the case of an appeal whereit lies to it).

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/(1) GENERALLY/[005.222] Scope
and object
[005.222] Scope and object Every high court has the power, throughout the territories in relation to which it
exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government,
within those territories directions, orders or writs, including writs1 in the nature of habeas corpus2,
mandamus3, prohibition4, quo warranto5 and certiorari6 or any of them, for the enforcement of any of the
rights7 and for any other purpose8.
In the pre Constitution era, only the High Courts of Calcutta, Madras and Bombay enjoyed the jurisdiction to
issue writs. The jurisdiction was, however, limited territorially as each high court could issue a writ, not
throughout the whole of its territorial jurisdiction but only within the area of the Presidency Town within which
it enjoyed an original jurisdiction9.
The expansive and extraordinary power of the high courts is as wide as the amplitude of the language used
indicates and so may affect any person, even a private individual and be available for any other purpose,
even the one for which another remedy exists10. Such power of the high courts is discretionary and no limits
are placed thereon. However, the Supreme Court has, in course of time spelled out some rules regarding
locus standi11, exhaustion of remedies, laches12, res judicata13 and the like, to restrain the writ power. The
rules thus evolved constitute a self-imposed restraint by the judiciary on its otherwise broad power14.
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The power of a high court is broader as apart from writs, it may also issue directions to enforce any of the
fundamental rights or for any other purpose. In a number of cases, courts have issued directions rather than
writs15.
The power conferred on the high courts is to advance justice16. The purpose of such constitutional powers
being conferred on the high courts is that no man must be subjected to injustice by violating the law17. The
object behind writ jurisdiction of high courts is to provide a quick, efficacious and inexpensive remedy to the
aggrieved party18.
1 As to writs in general see [80]CONSTITUTIONAL LAW.
2 As to the writ of habeas corpus see [005.279].
3 As to the writ of mandamus see [005.283].
4 As to the writ of prohibition see [005.289] and following.
5 Ie the rights conferred by the Constitution of India Pt III (see generally[80]CONSTITUTIONAL LAW).
6 As to the writ of quo warranto see [005.281] and following.
7 As to the writ of certiorari see [005.289] and following.
8 Constitution of India art 226(1). This is notwithstanding anything contained in the Constitution of India art 32 (see
generally[80]CONSTITUTIONAL LAW).
9 Jain, Outlines of Indian Legal history 1990 pp 303-308.
10 Ie the power under the constitution of Indiaart 226 (see generally [80]CONSTITUTIONAL LAW). Rohtas Industries Ltd v
Rohtas Industries Staff Union AIR 1976 SC 425 [LNIND 1975 SC 523] [LNIND 1975 SC 523] [LNIND 1975 SC 523], 449,
Rohtas Industries Ltd v Rohtas Industries Staff Union (1976) 2 SCC 82 [LNIND 1975 SC 523] [LNIND 1975 SC 523] [LNIND
1975 SC 523], Rohtas Industries Ltd v Rohtas Industries Staff Union (1976) 2 SCJ 425.
11 As to the doctrine of locus standi see [005.231].
12 As to the meaning of laches see [005.232].
13 As to res judicata see [005.229] (see also CIVIL PROCEDURE[65.128]).
15 Swayambar Prasad Sudrania v State of Rajasthan AIR 1972 Raj 69 [LNIND 1971 RAJ 87] [LNIND 1971 RAJ 87] [LNIND
1971 RAJ 87], Swayambar Prasad Sudrania v State of Rajasthan (1971) Serv LR 767, Swayambar Prasad Sudrania v State of
Rajasthan (1972) Lab IC 408; Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd AIR 1983 SC 848, Gujarat State
Financial Corporation v Lotus Hotels Pvt Ltd (1983) 3 SCC 379, Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd
(1983) 2 SCWR 144; AIR India Statutory Corpn v United Labour Union AIR 1997 SC 645 [LNIND 1996 SC 2076] [LNIND 1996
SC 2076] [LNIND 1996 SC 2076], 646, AIR India Statutory Corpn v United Labour Union (1997) 9 SCC 377 [LNIND 1996 SC
2076] [LNIND 1996 SC 2076] [LNIND 1996 SC 2076], AIR India Statutory Corpn v United Labour Union (1997) Lab IC 449
16 State of Uttar Pradesh v District Judge, Unnao AIR 1984 SC 1401, State of Uttar Pradesh v District Judge, Unnao (1984) 2
SCC 673, State of Uttar Pradesh v District Judge, Unnao (1983) 2 Scale 1035.
17 Roshan Deen v Preeti Lal 2002 1 SCC 100 [LNIND 2001 SC 2478] [LNIND 2001 SC 2478] [LNIND 2001 SC 2478]. See
generally [80]CONSTITUTIONAL LAW.
18 Babubhai Muljibhai Patel v Nandlal Khodias Barot AIR 1974 SC 2105 [LNIND 1974 SC 279] [LNIND 1974 SC 279] [LNIND
1974 SC 279], Babubhai Muljibhai Patel v Nandlal Khodias Barot (1974) 2 SCC 706 [LNIND 1974 SC 279] [LNIND 1974 SC
279] [LNIND 1974 SC 279], Babubhai Muljibhai Patel v Nandlal Khodias Barot [1975] 2 SCR 71 [LNIND 1974 SC 279] [LNIND
1974 SC 279] [LNIND 1974 SC 279].

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/(1) GENERALLY/[005.223] Nature of
312 121
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writ jurisdiction
[005.223] Nature of writ jurisdiction When, an action of an authority infringes a fundamental right, relief
may be had through the writ jurisdiction of the Supreme Court or of high courts. However, when a right other
than fundamental right is infringed, only a high court may be approached for a writ1.
The writ jurisdiction has been characterised as extraordinary original jurisdiction rather than as original
jurisdiction2. The scope of such jurisdiction cannot be curtailed or whittled down by legislation. Even when
the Legislature declares the action or decision of an authority as final and ordinary jurisdiction of the courts is
barred, a high court is still entitled to exercise its writ jurisdiction that remains unaffected by legislation3. A
finality clause in a statute does not bar the exercise of a high court's jurisdiction4.
A high court may issue not only writs but also directions and orders5. Therefore, a high court may even grant
a declaratory relief when writ is not a proper remedy6. A high court can make an interim order pending final
disposal of the writ petition7. It cannot, however, give interim relief to the petitioner if it does not propose to
determine the rights of the parties involved in the matter and desires that a regular suit be filed for the
purpose8.
The expression9 'in the nature' of writs imply that the writs in India need not be a carbon copy of the writs in
England. A high court is not obligated to follow all the procedural technicalities of the English law relating to
writs. However, it must keep to the broad and fundamental features of these writs as followed in the English
law. A petition is not thrown out merely because the proper writ has not been prayed for10. However, the writ
remedy cannot be used merely to enforce a purely contractual obligation. For this purpose, the proper
remedy is a suit for damages or specific performance11.
Instead of merely quashing an administrative order as invalid when it is found to be flawed, the judicial
tendency is to mould the relief according to the needs of the situation. In this way, judicial review has
assumed a very positive and creative complexion12.
1 Bengal Immunity Co Ltd v State of Bihar AIR 1955 SC 661 [LNIND 1955 SC 122] [LNIND 1955 SC 122] [LNIND 1955 SC
122].
2 State of Uttar Pradesh v Vijay Anand Maharaj AIR 1963 SC 946 [LNIND 1962 SC 127] [LNIND 1962 SC 127] [LNIND 1962
SC 127], State of Uttar Pradesh v Vijay Anand Maharaj (1963) 1 SCA 378 [LNIND 1962 SC 127] [LNIND 1962 SC 127] [LNIND
1962 SC 127], State of Uttar Pradesh v Vijay Anand Maharaj [1963] 1 SCR 1 [LNIND 1962 SC 127] [LNIND 1962 SC 127]
[LNIND 1962 SC 127](the high court in the exercise of its power under the Constitution of India art 226 exercises original
jurisdiction and the said jurisdiction must not be confused with the ordinary civil jurisdiction of the high court; this jurisdiction,
though original in character as contrasted with its appellate and revisional jurisdictions, may, for convenience, be described as
extraordinary original jurisdiction).
3 Kartar Singh v State of Punjab 1994 3 SCC 569, Kartar Singh v State of Punjab (1994) 2 JT 423, Kartar Singh v State of
Punjab (1994) SCC (Cr) 395; Custodian Evacuee Property, Punjab v Jafran Begum AIR 1968 SC 169 [LNIND 1967 SC 157]
[LNIND 1967 SC 157] [LNIND 1967 SC 157], Custodian Evacuee Property, Punjab v Jafran Begum (1968) 1 SCJ 782,
Custodian Evacuee Property, Punjab v Jafran Begum [1967] 3 SCR 736 [LNIND 1967 SC 157] [LNIND 1967 SC 157] [LNIND
1967 SC 157]; Sajjan Singh v State of Rajasthan AIR 1965 SC 845 [LNIND 1964 SC 291] [LNIND 1964 SC 291] [LNIND 1964
SC 291], Sajjan Singh v State of Rajasthan (1965) 1 SCJ 377, Sajjan Singh v State of Rajasthan (1965) 1 SCWR 593.
4 Srikant Kashinath Jituri v Corpn of the city of Belgaum AIR 1995 SC 288 [LNIND 1994 SC 1445] [LNIND 1994 SC 1445]
[LNIND 1994 SC 1445], Srikant Kashinath Jituri v Corpn of the city of Belgaum (1994) 6 SCC 572 [LNIND 1994 SC 1445]
[LNIND 1994 SC 1445] [LNIND 1994 SC 1445].
5 Ie under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW). As to writs in general see
6 See note 4 above.
7 Kanoria Chemicals & Industries Ltd v Uttar Pradesh State Electricity Board 1997 5 SCC 772 [LNIND 1997 SC 415] [LNIND
1997 SC 415] [LNIND 1997 SC 415], Kanoria Chemicals & Industries Ltd v Uttar Pradesh State Electricity Board (1997) 3 JT
545, Kanoria Chemicals & Industries Ltd v Uttar Pradesh State Electricity Board (1997) 2 Scale 719 [LNIND 1997 SC 415]
[LNIND 1997 SC 415] [LNIND 1997 SC 415]; State of Madhya Pradesh v MV Vyavsaya & Co AIR 1997 SC 993 [LNIND 1996
313 122
Page
SC 2714] [LNIND 1996 SC 2714] [LNIND 1996 SC 2714], State of Madhya Pradesh v MV Vyavsaya & Co (1997) 1 SCC 156
[LNIND 1996 SC 2714] [LNIND 1996 SC 2714] [LNIND 1996 SC 2714], State of Madhya Pradesh v MV Vyavsaya & Co (1997)
10 JT 868.
8 State of Orissa v Madan Gopal Rungta AIR 1952 SC 12 [LNIND 1951 SC 59] [LNIND 1951 SC 59] [LNIND 1951 SC 59],
State of Orissa v Madan Gopal Rungta [1952] SCR 28 [LNIND 1951 SC 59] [LNIND 1951 SC 59] [LNIND 1951 SC 59], State of
Orissa v Madan Gopal Rungta (1951) SCJ 764.
9 Ie the expression as used in the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
10 TC Basappa v T Nagappa AIR 1954 SC 440 [LNIND 1954 SC 84] [LNIND 1954 SC 84] [LNIND 1954 SC 84], TC Basappa v
T Nagappa [1955] 1 SCR 250 [LNIND 1954 SC 84] [LNIND 1954 SC 84] [LNIND 1954 SC 84], TC Basappa v T Nagappa
(1954) SCJ 695 [LNIND 1954 SC 84] [LNIND 1954 SC 84] [LNIND 1954 SC 84]; Kanu Sanyal v District Magistrate, Darjeeling
AIR 1973 SC 2684 [LNIND 1973 SC 271] [LNIND 1973 SC 271] [LNIND 1973 SC 271], Kanu Sanyal v District Magistrate,
Darjeeling (1973) 2 SCC 674 [LNIND 1973 SC 271] [LNIND 1973 SC 271] [LNIND 1973 SC 271], Kanu Sanyal v District
Magistrate, Darjeeling (1973) SCC (Cr) 980.
11 State of Madhya Pradesh v MV Vyavsaya & Co AIR 1997 SC 993 [LNIND 1996 SC 2714] [LNIND 1996 SC 2714] [LNIND
1996 SC 2714], State of Madhya Pradesh v MV Vyavsaya & Co (1997) 1 SCC 156 [LNIND 1996 SC 2714] [LNIND 1996 SC
2714] [LNIND 1996 SC 2714], State of Madhya Pradesh v MV Vyavsaya & Co (1997) 10 JT 868; Food Corporation of India v
Jagannath Dutta AIR 1993 SC 1494 [LNIND 1993 SC 230] [LNIND 1993 SC 230] [LNIND 1993 SC 230], Food Corporation of
India v Jagannath Dutta (1993) Supp 3 SCC 635; Divisional Forest Officer v Biswanath Tea Co Ltd AIR 1981 SC 1368 [LNIND
1981 SC 271] [LNIND 1981 SC 271] [LNIND 1981 SC 271], Divisional Forest Officer v Biswanath Tea Co Ltd (1981) 3 SCC 143
[LNIND 1981 SC 251] [LNIND 1981 SC 251] [LNIND 1981 SC 251], Divisional Forest Officer v Biswanath Tea Co Ltd (1981)
SCC Tax 199; Har Shankar v Dy Excise and Taxation Comr AIR 1975 SC 1121 [LNIND 1975 SC 587] [LNIND 1975 SC 587]
[LNIND 1975 SC 587], Har Shankar v Dy Excise and Taxation Comr (1975) 1 SCC 737 [LNIND 1975 SC 587] [LNIND 1975 SC
587] [LNIND 1975 SC 587], Har Shankar v Dy Excise and Taxation Comr (1975) Tax LR 1569. As to damages in writ
jurisdiction see damages [115.299].
12 The Nawabganj Sugar Mills Co v Union of India AIR 1976 SC 1152 [LNIND 1975 SC 343] [LNIND 1975 SC 343] [LNIND
1975 SC 343], The Nawabganj Sugar Mills Co v Union of India (1976) 1 SCC 120 [LNIND 1975 SC 343] [LNIND 1975 SC 343]
[LNIND 1975 SC 343], The Nawabganj Sugar Mills Co v Union of India [1976] 1 SCR 803 [LNIND 1975 SC 343] [LNIND 1975
SC 343] [LNIND 1975 SC 343], The Nawabganj Sugar Mills Co v Union of India [1976] 1 SCR 803 [LNIND 1975 SC 343]
[LNIND 1975 SC 343] [LNIND 1975 SC 343]; Gujarat Steel Tubes Ltd v Gujarat Steel Tubes, Mazdoor Sabha AIR 1980 SC
1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes,
Mazdoor Sabha (1980) 2 SCC 593 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd
v Gujarat Steel Tubes, Mazdoor Sabha [1980] 2 SCR 146 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464];
Shiv Shankar Dal Mills v State of Haryana AIR 1980 SC 1037 [LNIND 1979 SC 444] [LNIND 1979 SC 444] [LNIND 1979 SC
444], Shiv Shankar Dal Mills v State of Haryana (1980) 2 SCC 437 [LNIND 1979 SC 267] [LNIND 1979 SC 267] [LNIND 1979
SC 267], Shiv Shankar Dal Mills v State of Haryana [1980] 1 SCR 1170 [LNIND 1979 SC 267] [LNIND 1979 SC 267] [LNIND
1979 SC 267]. As to the meaning of review see CIVIL PROCEDURE[65.773].

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/ (1) GENERALLY/[005.224]
Supervisory role of writ jurisdiction
[005.224] Supervisory role of writ jurisdiction While exercising writ jurisdiction, a high court cannot go into
the correctness or merits of the decision taken by the concerned authority. It may however, review the
manner in which the decision is made1 to ensure that the authority has arrived at its decision according to
law2 and in accordance with the principles of natural justice, wherever applicable3. The court may also
intervene if the authority acts unfairly or unreasonably4. Thus, judicial review by a high court is not directed
against the decision but is confined to the decision-making process5.
The purpose of judicial review is to ensure that the individual receives fair treatment and not to ensure that
the authority, after according fair treatment, reaches, on a matter which it is authorised or enjoined by law to
decide for itself, a conclusion which is correct in the eyes of the court6.
When the order of the authority does not suffer from any serious infirmity and the authority has not taken a
view of the matter that no reasonable person is likely to take, then the high court must not interfere with the
order in the exercise of its writ jurisdiction. The role of the court7 is supervisory and corrective and it is not
required to act as an appellate court. Accordingly, a high court must not interfere with the order passed by an
314 123
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authority, unless the order suffers from a manifest error and if allowed to stand, it would amount to
perpetuation of a grave injustice8.
If a person has obtained an order from an authority by playing fraud on it, then the concerned high court
must not refuse to exercise its writ jurisdiction to review such an order. Fraud and justice never go together.
Fraud avoids all judicial acts9.
1 H B Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v Gopi Nath & Sons 1992 Supp 2 SCC 312.
2 Gurdeep Singh v State of Jammu & Kashmir AIR 1993 SC 2638, Gurdeep Singh v State of Jammu & Kashmir AIR 1993
SCW 3420, Gurdeep Singh v State of Jammu & Kashmir (1995) Supp 1 SCC 188.
3 State of Madhya Pradesh v MV Vyavsaya & Co AIR 1997 SC 993 [LNIND 1996 SC 2714] [LNIND 1996 SC 2714] [LNIND
1996 SC 2714], State of Madhya Pradesh v MV Vyavsaya & Co (1997) 1 SCC 156 [LNIND 1996 SC 2714] [LNIND 1996 SC
2714] [LNIND 1996 SC 2714], State of Madhya Pradesh v MV Vyavsaya & Co (1997) 10 JT 868; Indian Oil Corporation Ltd v
Ashok Kumar Arora AIR 1997 SC 1030 [LNIND 1997 SC 192] [LNIND 1997 SC 192] [LNIND 1997 SC 192], Indian Oil
Corporation Ltd v Ashok Kumar Arora (1997) 3 SCC 72 [LNIND 1997 SC 192] [LNIND 1997 SC 192] [LNIND 1997 SC 192],
Indian Oil Corporation Ltd v Ashok Kumar Arora (1997) 2 JT 367; Rattan Lal Sharma v Managing Committee, Dr Hari Ram
Higher Secondary Shool AIR 1993 SC 2155 [LNIND 1993 SC 471] [LNIND 1993 SC 471] [LNIND 1993 SC 471], Rattan Lal
Sharma v Managing Committee, Dr Hari Ram Higher Secondary Shool (1993) 4 SCC 10 [LNIND 1993 SC 471] [LNIND 1993
SC 471] [LNIND 1993 SC 471], Rattan Lal Sharma v Managing Committee, Dr Hari Ram Higher Secondary Shool (1993) 3 SCJ
148; HB Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal v Gopi Nath & Sons 1992 Supp 2 SCC 312.
4 Uttar Pradesh Financial Corporation v Gem Cap (India) Pvt Ltd AIR 1993 SC 1435 [LNIND 1993 SC 179] [LNIND 1993 SC
179] [LNIND 1993 SC 179], Uttar Pradesh Financial Corporation v Gem Cap (India) Pvt Ltd (1993) 2 SCC 299 [LNIND 1993 SC
179] [LNIND 1993 SC 179] [LNIND 1993 SC 179], Uttar Pradesh Financial Corporation v Gem Cap (India) Pvt Ltd AIR (1993)
SCW 1189; Al Karim Educational Trust v Bihar AIR 1996 SC 1469, Al Karim Educational Trust v Bihar (1996) 8 SCC 330, Al
Karim Educational Trust v Bihar (1996) 2 JT 662.
5 Shama Prashant Raje v Ganpatrao AIR 2000 SC 3090, Shama Prashant Raje v Ganpatrao (2000) 7 SCC 522 [LNIND 2000
SC 1308] [LNIND 2000 SC 1308], Shama Prashant Raje v Ganpatrao AIR (2000) SCW 3493 (in a proceeding under the
constitution of Indiaarts 226 and 227, the high court cannot sit in appeal over the findings recorded by a competent tribunal; the
Jurisdiction of the high court, therefore, is supervisory and not appellate; consequently art 226 is not intended to enable the high
court to convert itself into a court of appeal and examine for itself the correctness of the decision impugned and decide what is
the proper view to be taken or order to be made). As to the meaning of review see CIVIL PROCEDURE[65.773].
6 Chief Constable of the North Wales Police v Evans [1982] 3 All ER 141, Chief Constable of the North Wales Police v Evans
[1982] 1 WLR 1155 HL,.
7 As to the role of courts see generally [100] courts.
8 Ashok Kumar v Sita Ram AIR 2001 SC 1692 [LNIND 2001 SC 1012] [LNIND 2001 SC 1012] [LNIND 2001 SC 1012], at
1695, Ashok Kumar v Sita Ram (2001) 4 SCC 478 [LNIND 2001 SC 1012] [LNIND 2001 SC 1012] [LNIND 2001 SC 1012],
Ashok Kumar v Sita Ram (2001) 5 JT 87.
9 United India Insurance Co Ltd v Rajendra Singh AIR 2000 SC 1165 [LNIND 2000 SC 477] [LNIND 2000 SC 477] [LNIND
2000 SC 477], United India Insurance Co Ltd v Rajendra Singh (2000) SCC (Cr) 726, United India Insurance Co Ltd v Rajendra
Singh (2000) 2 Supreme 294 (for a high court in India to say that it has no power even to consider the contention that the
awards secured are the by product of stark fraud played on a tribunal, the plenary power conferred on the high court by the
Constitution may become a mirage and people's faith in the efficacy of the high courts would corrode).

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/(1) GENERALLY/[005.225] Special
leave, how different from writ jurisdiction
[005.225] Special leave, how different from writ jurisdiction The power of the Supreme Court to allow a
special leave to appeal applies to appeals from courts or tribunals and not from any administrative body. On
the other hand, its writ jurisdiction, a high court can issue a writ to any authority--quasi judicial, administrative
or legislative1.
315 124
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Dismissal of a special leave to appeal by the Supreme Court may not necessarily bar a writ petition before
the high court, on the same grounds2. When a person files a special leave petition in the Supreme Court and
withdraws the same, he cannot be barred from filing a writ petition in the high3. The situation would however
be different if the appeal was dismissed on merits by the Supreme Court. In such a situation, the same
matter cannot be re-agitated through a writ petition in the high court4.
1 Sangram Singh v Election Tribunal, Kotah AIR 1955 SC 425 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2]. As
to special leave to appeal see [005.242] and following.
2 The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin Port Trust AIR 1978 SC 1283 [LNIND 1978 SC
158] [LNIND 1978 SC 158] [LNIND 1978 SC 158], The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin
Port Trust (1978) 3 SCC 119 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158], The Workmen of Cochin Port
Trust v The Board of Trustees of the Cochin Port Trust (1978) 2 SCJ 518 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND
1978 SC 158](an industrial tribunal gave an award in favour of the workmen; a special leave petition under the Constitution of
India art 136, against the award, was dismissed by the Supreme Court; the employees thereafter filed a writ petition in the high
court under art 226, substantially on the same grounds on which the special leave petition was based; objection against the
maintainability of the petition was rejected by the Supreme Court; the Court emphasised that the question was whether the
order dismissing the special leave petition had considered all the matters raised in the petition; when the Supreme Court
rejected the special leave petition earlier, it decided nothing specifically except that it was not a fit case for appeal).
3 Ahmedabad Manufacturing & Calico Printing Co v Workmen AIR 1981 SC 960 [LNIND 1981 SC 149] [LNIND 1981 SC 149]
[LNIND 1981 SC 149], Ahmedabad Manufacturing & Calico Printing Co v Workmen (1981) 2 SCC 663 [LNIND 1981 SC 149]
[LNIND 1981 SC 149] [LNIND 1981 SC 149], Ahmedabad Manufacturing & Calico Printing Co v Workmen (1981) 2 SCJ 80
4 As to res judicata see [005.271].

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/(1) GENERALLY/[005.226] Subject
of writ
[005.226] Subject of writ While a high court is considering the question of enforcement of fundamental
rights, it has to interpret the word authority1 in the same sense and manner as the Supreme Court. However,
when the high court is considering the question of issuing a writ for any other purpose, it can take a much
broader and liberal view of the said expresion2.
To issue a writ, while the Supreme Court must ensure that the body in question is an instrumentality of the
government, it is not necessary for a high court to consider the same3.
The writ of mandamus4 or certiorari5 may be issued6 to a body, which is a public utility service7 or to a
private party with a view to enforce a statutory or public duty8 or when it discharges a function under a
statutory provision9. Writs10 may thus be issued to a company or a co-operative society or even a private
person when it discharges functions under a statute11.
Writs may also be issued by high courts to the government officials or statutory bodies12 and to purely
administrative bodies13. However, with respect to issuance of writs to the non-statutory bodies14, such as
government companies or registered bodies15, certain difficulties may arise.
Ordinarily, mandamus may not be issued to a privately managed college affiliated to a university and
receiving grants-in-aid, to quash an order of dismissal of a member of the staff primarily on the ground that
the relationship between the two is contractual, as a writ cannot be issued to enforce a contract16. Writs may
be issued against educational institutions in matters of disciplinary proceedings against the students17.
Infact, the expressions 'any person' or 'authority' under the Constitution of India18, may cover any other
person or body performing public duty19. Thus, medical colleges that are affiliated to the Universities and
receive aid from state funds may come under the writ jurisdiction of high courts20. A writ petition may be
316 125
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maintained even against an unaided private educational institution to enforce government instructions
against it21.
Under government instructions, the teachers in private institutions are entitled to the same pay as the
government servants and may take recourse to a writ petition before a high court to enforce the same22.
A stock exchange may be a subject of a high courts writ jurisdiction as it is a public limited company,
recognised by the Securities and Exchange Board of India (SEBI) and has to comply with the conditions laid
down in the Securities Contracts (Regulation) Act 1956. However, a stock exchange is subject to such a writ
jurisdiction only if it fails to perform the public duty by going beyond the mandate of the rules and byelaws
made under the concerned Act23.
An award of an arbitrator is amenable to correction24 under the writ jurisdiction of a high court25. A
co-operative bank may also come under the writ jurisdiction of a high court if it is registered under the
Co-operative Societies Act 1912 as it comes under the definition of an authority26.
1 Ie the word as it appears under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
2 S Goverdhan v Rani Laxmidevamma College of Arts Commerce and Science, Wanaparthy AIR 1983 AP 125 [LNIND 1982
AP 269] [LNIND 1982 AP 269] [LNIND 1982 AP 269]; Aley Ahmed Abidi v Dist Inspector of Schools, Allahabad AIR 1977 All
539, Aley Ahmed Abidi v Dist Inspector of Schools, Allahabad (1976) All WC 731 (FB); Colvin Talugdars College v Chandra
Mohan Asthana AIR 1978 All 93; Kum Kum v Principal, Jesus Mary College AIR 1976 Del 35; Mohinder Singh v Union of India
AIR 1969 Del 170 [LNIND 1968 DEL 64] [LNIND 1968 DEL 64] [LNIND 1968 DEL 64], Mohinder Singh v Union of India (1969)
Lab IC 649 [LNIND 1968 DEL 64] [LNIND 1968 DEL 64] [LNIND 1968 DEL 64]; Harijandar Singh v Kakatiya Medical College,
Warrangal AIR 1975 AP 35 [LNIND 1974 AP 105] [LNIND 1974 AP 105] [LNIND 1974 AP 105], Harijandar Singh v Kakatiya
Medical College, Warrangal (1974) ILR AP 1033, Harijandar Singh v Kakatiya Medical College, Warrangal (1974) 1 Andh LT
192. See contra J Tiwari v Jawala Devi Vidya Mandir AIR 1981 SC 122, J Tiwari v Jawala Devi Vidya Mandir (1979) 4 SCC
160, J Tiwari v Jawala Devi Vidya Mandir (1979) 1 SLR 614; Comr, Lucknow Division v Kumari Prem Lata Misra AIR 1977 SC
334 [LNIND 1976 SC 388] [LNIND 1976 SC 388] [LNIND 1976 SC 388], Comr, Lucknow Division v Kumari Prem Lata Misra
(1976) 4 SCC 486 [LNIND 1976 SC 388] [LNIND 1976 SC 388] [LNIND 1976 SC 388], Comr, Lucknow Division v Kumari Prem
Lata Misra [1977] 1 SCR 957 [LNIND 1976 SC 388] [LNIND 1976 SC 388] [LNIND 1976 SC 388] (where a school recognised
by the education board under the relevant Act terminated the services of a teacher in the basic section of the school which was
not part of the scheme of recognition of the school, no writ will lie); Arya Vidya Sabha Kashi v Krishan Kumar Shrivastava AIR
1976 SC 1073 [LNIND 1976 SC 62] [LNIND 1976 SC 62] [LNIND 1976 SC 62], Arya Vidya Sabha Kashi v Krishan Kumar
Shrivastava (1976) 1 SCJ 425 [LNIND 1976 SC 62] [LNIND 1976 SC 62] [LNIND 1976 SC 62], Arya Vidya Sabha Kashi v
Krishan Kumar Shrivastava (1976) 1 SCWR 257 [LNIND 1976 SC 62] [LNIND 1976 SC 62] [LNIND 1976 SC 62]; Executive
Committee of Vaish Degree College, Shamli v Lakshmi Narain AIR 1976 SC 888 [LNIND 1975 SC 514] [LNIND 1975 SC 514]
[LNIND 1975 SC 514], Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain (1976) 2 SCC 58 [LNIND 1975
SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514], Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain
[1976] 2 SCR 1006 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514] (the individual concerned was involved
a suit for declaration and not a writ in the matter of college teacher controversy; the court refused to give a declaration arguing
that an affiliated college run by a registered society must not be regarded as a statutory body, though the dismissal of the
teacher was accepted as being in violation of a mandatory provision of the Act concerned); Vidya Ram Misra v The Managing
Committee, Sri Jai Narain College AIR 1972 SC 1450 [LNIND 1972 SC 70] [LNIND 1972 SC 70] [LNIND 1972 SC 70], Vidya
Ram Misra v The Managing Committee, Sri Jai Narain College (1972) 2 SCJ 770, Vidya Ram Misra v The Managing
Committee, Sri Jai Narain College (1972) 1 SCA 592(it was argued that if a college affiliated to a statutory body and governed
by relevant statutes and ordinances framed by the university in exercise of its statutory powers, violates any statute or
ordinance in the matter of termination of the services of a teacher, it would be subject to the Constitution of India art 226; a
lecturer dismissed by the college filed a writ petition challenging the validity of his dismissal on the ground of denial of natural
justice; rejecting the petition, the Supreme Court held that certiorari cannot be issued to the managing committee of an affiliated
college for a writ could be issued only to quash the order of a statutory body acting in breach of a mandatory obligation imposed
by a statute).
Gurpreet Singh v Punab University AIR 1983 P & H 70, Gurpreet Singh v Punab University (1983) 1 SLR 220, Gurpreet Singh
v Punab University (1983) 85 Punj LR 46; M Madhavan Pillai v KA Balan AIR 1979 Ker 120 [LNIND 1978 KER 266] [LNIND
1978 KER 266] [LNIND 1978 KER 266], M Madhavan Pillai v KA Balan (1979) ILR 1 Ker 374, M Madhavan Pillai v KA Balan
(1979) Ker LT 220 (FB); Badri Narayan Thakur In Re AIR 1981 Cal 214 [LNIND 1981 CAL 74] [LNIND 1981 CAL 74] [LNIND
1981 CAL 74], Badri Narayan Thakur In Re (1981) 2 Cal LJ 211 [LNIND 1981 CAL 74] [LNIND 1981 CAL 74] [LNIND 1981 CAL
74]; JS Giri Rao v Hind Kusht Niwaran Sangh AIR 1982 Del 446 [LNIND 1982 DEL 92] [LNIND 1982 DEL 92] [LNIND 1982
DEL 92](in this case was involved a question of master-servant relationship; the petitioner challenged termination of his
services by the association as illegal and mala fide; though the association was held not to be an authority under the
Constitution of India art 226, the further question whether it was still amenable to a writ under art 226, was not considered by
the court); Pritam Singh Gill v State of Punjab AIR 1982 P & H 228, Pritam Singh Gill v State of Punjab (1982) 2 Lab LJ 305,
Pritam Singh Gill v State of Punjab (1984) 1 Comp LJ 146 (the high court refused to issue certiorari to a co-operative society
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which prematurely retired an employee; certiorari was sought to quash the order of retirement; the court insisted on the view
that a writ can be issued to a non statutory body only when it is regarded as an instrumentality of the state and not otherwise);
U P Singh v Board of Governors, Maulana Azad College of Technology, Bhopal AIR 1982 MP 59 [LNIND 1981 MP 81] [LNIND
1981 MP 81] [LNIND 1981 MP 81], U P Singh v Board of Governors, Maulana Azad College of Technology, Bhopal (1982) MP
LJ 75, U P Singh v Board of Governors, Maulana Azad College of Technology, Bhopal (1982) Jab LJ 653; M L Nohria v
General Insurance Corpn, Bombay AIR 1979 P & H 183, M L Nohria v General Insurance Corpn, Bombay (1979) 81 Punj LR
431, M L Nohria v General Insurance Corpn, Bombay (1979) 1 Lab LJ 414; Abdul Ahmad v Loan Manager, Government
Woollen Mill AIR 1979 J & K 57; Gurbaksh Singh v Delhi State Industrial Development Corpn AIR 1978 Del 262 [LNIND 1978
DEL 73] [LNIND 1978 DEL 73] [LNIND 1978 DEL 73], Gurbaksh Singh v Delhi State Industrial Development Corpn (1978) 2
SLR 410, Gurbaksh Singh v Delhi State Industrial Development Corpn (1978) Lab IC 1580; Shakuntala Sohawala v Director of
Public Instruction II, Hyderabad AIR 1977 AP 381 [LNIND 1977 AP 178] [LNIND 1977 AP 178] [LNIND 1977 AP 178],
Shakuntala Sohawala v Director of Public Instruction II, Hyderabad (1977) Andh LT 492 [LNIND 1977 AP 178] [LNIND 1977 AP
178] [LNIND 1977 AP 178], Shakuntala Sohawala v Director of Public Instruction II, Hyderabad (1977) Serv LJ 696; Radha
Kumari Singh v The Governing body of Mahanth Mahadev Anand Mahila Mahavidyalaya AIR 1976 Pat 378, Radha Kumari
Singh v The Governing body of Mahanth Mahadev Anand Mahila Mahavidyalaya (1976) BBCJ 470; Arun Narayan v State of
Karnataka AIR 1976 Kant 174 [LNIND 1976 KANT 41] [LNIND 1976 KANT 41] [LNIND 1976 KANT 41], Arun Narayan v State of
Karnataka (1976) 1 Kant LJ 349; R D Singh v The Secretary, Bihar State Small Scale Industries Corpn AIR 1974 Pat 212, R D
Singh v The Secretary, Bihar State Small Scale Industries Corpn (1974) Pat LJR 113, R D Singh v The Secretary, Bihar State
Small Scale Industries Corpn (1974) BLJR 234; National Seeds Corpn Employees Union v National Seed Corpn AIR 1972 Del
292 [LNIND 1972 DEL 40] [LNIND 1972 DEL 40] [LNIND 1972 DEL 40]; R Lakshmi v Neyveli Lignite Corpn Ltd AIR 1966 Mad
399 [LNIND 1965 MAD 231] [LNIND 1965 MAD 231] [LNIND 1965 MAD 231], R Lakshmi v Neyveli Lignite Corpn Ltd (1966)
Mad WN 160, R Lakshmi v Neyveli Lignite Corpn Ltd (1960) 1 Mad LJ 468; Re VS Hriharan AIR 1960 AP 518 [LNIND 1959 AP
192] [LNIND 1959 AP 192] [LNIND 1959 AP 192], Re VS Hriharan (1960) 1 Lab LJ 164 [LNIND 1959 AP 192] [LNIND 1959 AP
192] [LNIND 1959 AP 192].
3 Rohtas Industries Ltd v Rohtas Industries Staff Union AIR 1976 SC 425 [LNIND 1975 SC 523] [LNIND 1975 SC 523] [LNIND
1975 SC 523], 449, Rohtas Industries Ltd v Rohtas Industries Staff Union (1976) 2 SCC 82 [LNIND 1975 SC 523] [LNIND 1975
SC 523] [LNIND 1975 SC 523], Rohtas Industries Ltd v Rohtas Industries Staff Union (1976) 2 SCJ 425(a writ was issued
against the award of an arbitrator appointed under Industrial Disputes Act 1947 s 10A; it was argued that an award under s 10
was a private arbitration and so would not be amenable to correction under the Constitution of India art 226; however, the court
did not accept the argument and held that such an arbitrator can legitimately be regarded as part of the methodology of the
sovereign's dispensation of justice; although the concerned parties name the arbitrator and voluntarily submit the industrial
dispute to him, yet the arbitrator has the power to bind not only the immediate parties to the reference but even third parties and
the arbitrator's powers flow from s 10A; the court asserted that art 226 is wider than art 136 and that under art 226, a writ can
be issued to any person or authority); Praga Tools Corpn v C V Imanual AIR 1969 SC 1306 [LNIND 1969 SC 80] [LNIND 1969
SC 80] [LNIND 1969 SC 80], Praga Tools Corpn v C V Imanual (1969) 1 SCC 585 [LNIND 1969 SC 80] [LNIND 1969 SC 80]
[LNIND 1969 SC 80], Praga Tools Corpn v C V Imanual [1969] 3 SCR 773 [LNIND 1969 SC 80] [LNIND 1969 SC 80] [LNIND
1969 SC 80](it is not necessary for issuing mandamus under the Constitution of India art 226 that the person or authority on
whom an obligation was imposed must be a public official or an official body and that mandamus can issue, for instance, to an
official of a society to compel him to carry out the terms of the statute under or by which the society is constituted or governed
and also to companies or corporations to carry out duties placed on them by statutes authorising their undertakings); Amir
Jamia v Deshrath Raj, (1969) ILR Del 202 (the High Court of Delhi regarded Jamia Millia as a deemed University, to be an
authority subject to the writ jurisdiction and issued writ to it for violating its own rules and regulations and principles of natural
justice; this is on the ground that it is a body having a public character, that education of the people is primarily a function of the
state, as every school and college is entitled to grant in aid from the state, that the very concept of a university is universality,
that a university cannot be a private institution, that power to confer a degree is a statutory power of governmental nature, that
under the Act only Universities can confer degrees and that the power to expel a student affects his rights and causes him
grave prejudice). See generally [80]CONSTITUTIONAL LAW.
6 Ie issued under the Constitution of India art 226 (see generally [80]CONSTITUTIONAL LAW).
7 Sri Konaseema Coop Central Bank Ltd, Amalapuram v N Seetharama Raju AIR 1990 AP 171 [LNIND 1990 AP 64] [LNIND
1990 AP 64] [LNIND 1990 AP 64], Sri Konaseema Coop Central Bank Ltd, Amalapuram v N Seetharama Raju (1990) Lab IC
NOC 63 [LNIND 1990 AP 64] [LNIND 1990 AP 64] [LNIND 1990 AP 64] (AP); Kartick Chandra Nandi v West Bengal Small
Scale Industries Corpn Ltd AIR 1967 Cal 231 [LNIND 1966 CAL 179] [LNIND 1966 CAL 179] [LNIND 1966 CAL 179]); Corpn of
the City of Nagpur v Nagpur Electric Light & Power Co Ltd, Nagpur AIR 1958 Bom 498 [LNIND 1958 BOM 103] [LNIND 1958
BOM 103] [LNIND 1958 BOM 103], Corpn of the City of Nagpur v Nagpur Electric Light & Power Co Ltd, Nagpur 60 Bom LR
1446, Corpn of the City of Nagpur v Nagpur Electric Light & Power Co Ltd, Nagpur (1958) Nag LJ 457 [LNIND 1958 BOM 103]
[LNIND 1958 BOM 103] [LNIND 1958 BOM 103] (the High Court of Bombay issued mandamus to a company, a public utility, for
failure to carry out its duties under the statute in question on the ground that the statutory duty devolving upon a public utility
concern is a public duty; that therefore, it cannot be said that a public utility concern like the respondent is in the same position
as a private party; a public utility concern enjoys special powers and privileges and therefore, it is appropriate to issue a writ to it
and such a concern is to be distinguished from an ordinary joint stock company).
8 Sarvaraya Sugars Ltd v Andhra Pradesh Civil Supplies Corpn Ltd AIR 1981 AP 402 [LNIND 1981 AP 96] [LNIND 1981 AP
96] [LNIND 1981 AP 96], 406, Sarvaraya Sugars Ltd v Andhra Pradesh Civil Supplies Corpn Ltd (1981) 2 Andh LT 139 (the
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high court issued a writ to enforce a public duty on sugar manufacturers; the court ruled that mandamus can be issued to
enforce a public duty, whether it be imposed on a private individual or on a public body; in this case, a writ was issued against
sugar producers at the instance of the Corporation as the sugar producers were bound to sell levy free sugar to the petitioner at
the rate fixed by the Central Government, under a statutory order).
9 Abani Bhushan Biswas v Hindustan Cables Ltd, Burdwan AIR 1968 Cal 124 [LNIND 1967 CAL 145] [LNIND 1967 CAL 145]
[LNIND 1967 CAL 145], Abani Bhushan Biswas v Hindustan Cables Ltd, Burdwan (1968) Lab IC 449 [LNIND 1967 CAL 145]
[LNIND 1967 CAL 145] [LNIND 1967 CAL 145], Abani Bhushan Biswas v Hindustan Cables Ltd, Burdwan (1968) Cal WN 410
(the high court took the view that a writ could go to a company for violating the standing orders made under the Industrial
Employment (Standing orders) Act 1946 which, in the opinion of the court, had statutory force); Borhan Kumar v Barauni Oil
Refineries AIR 1971 Pat 174, Borhan Kumar v Barauni Oil Refineries (1971) Lab IC 675, Borhan Kumar v Barauni Oil
Refineries (1971) 1 Lab LJ 50; KG Mathew v Director, National Insurance Co Ltd 1976 1 Lab LJ 27 (the high court held the
company as an authority because the control and supervision exercised by the government thereon, under statutory provisions,
made it as an agency of the government); Prafulla Chandra Sarma v Oil India Ltd, Duliajan AIR 1971 Assam 9, Prafulla
Chandra Sarma v Oil India Ltd, Duliajan (1971) Lab IC 155, Prafulla Chandra Sarma v Oil India Ltd, Duliajan (1970) Assam LR
211 (Oil India Ltd, a public limited company, was held to be subject to mandamus to enforce company's obligations arising
under the standing orders which partake the character of statutory obligations on the ground that the company was a public
utility; the company was directed not to enforce an order of dismissal of some of its employees); Synthetics and Chemicals Ltd
v GC Kumar 1967 II ILR All 325 (where the court issued mandamus to an ordinary joint stock company to restore the services
of a labour welfare officer whose service conditions were regulated by the Factories Act 1942 and the rules made thereunder).
11 T Gattaiah v Commissioner of Labour 1981 Lab IC 942 [LNIND 1981 AP 38] [LNIND 1981 AP 38] [LNIND 1981 AP 38], 87 ,
(workmen were retrenched by a company; they filed a writ petition against the company claiming that their retrenchment was
against the mandatory provisions of the Industrial Disputes Act 1947; the High Court of Andhra Pradesh issued mandamus to
compel the company to act according to law, to carry out directions of the law and to enforce a public duty imposed by law on
the company not to retrench the workers, except in accordance with the statutory conditions laid down by Parliament; the court
stated that it is not the nature of the body that matters but it is the nature of the duty that is important; the body must be
functionally assessed to find out whether it is performing a public duty or not).
12 Mewa Singh v Shrimoni Gurudwara Prabandhak Committee AIR 1999 SC 688, Mewa Singh v Shrimoni Gurudwara
Prabandhak Committee (1992) 2 SCC 60, Mewa Singh v Shrimoni Gurudwara Prabandhak Committee (1998) 9 Supreme
277(the Shrimoni Gurudwara Prabandhak Committee, a statutory body, was held to be an authority for purposes of the
Constitution of India art 226; the Supreme Court insisted that the committee must function within the four corners of the law
constituting it and the rules framed by it under statutory powers and that any violation of the provisions of the Act and the Rules
made by it would certainly make it amenable to the writ jurisdiction of the high court); The Workmen of Cochin Port Trust v The
Board of Trustees of the Cochin Port Trust AIR 1978 SC 1283 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC
158], The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin Port Trust (1978) 3 SCC 119 [LNIND 1978 SC
158] [LNIND 1978 SC 158] [LNIND 1978 SC 158], The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin
Port Trust (1978) 2 SCJ 518 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158]; K Ranadas Shenoy v Udipi
Municipality AIR 1974 SC 2177 [LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC 225], K Ranadas Shenoy v Udipi
Municipality (1974) 2 SCC 506 [LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC 225], K Ranadas Shenoy v Udipi
Municipality [1975] 1 SCR 680 [LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC 225]; R Varadarajan v Salem
Municipal Council by its Comr, Salem AIR 1973 Mad 55 [LNIND 1971 MAD 18] [LNIND 1971 MAD 18] [LNIND 1971 MAD 18],
R Varadarajan v Salem Municipal Council by its Comr, Salem (1972) 2 Mad LJ 485, R Varadarajan v Salem Municipal Council
by its Comr, Salem 85 Mad LW 705.
13 Ghanshyam Misra v Orissa Association of Sanskrit Learning and Culture AIR 1971 ori 212 (the Sanskrit Council was
constituted by a resolution of the state government to hold examinations and publish results; the high court ruled that
mandamus would lie against the council at the instance of an examinee as the duty performed by the council was a public,
though not a statutory duty); Harekrushna Mahtab v Chief Minister, Orissa AIR 1971 Ori 175, Harekrushna Mahtab v Chief
Minister, Orissa (1970) 1 Cut WR 1 (a commission of inquiry appointed under an administrative order and not under a statutory
provision to enquire into certain allegations against an ex Chief Minister was held to be subject to certiorari)
14
In the past there has been a difference of opinion among the high courts on the question whether a writ could be issued under
the Constitution of India art 226 to a government company. There have been mainly two strands of thought on this question. On
the one hand, the view has been expressed that a writ could not be issued to a government company. For instance, in
Electrogears (Pvt) Ltd v Rehabilitation Industries Corporation Ltd AIR 1979 Cal 320 [LNIND 1979 CAL 135] [LNIND 1979 CAL
135] [LNIND 1979 CAL 135](a writ could not be issued to Rehabilitation Industries Corporation Ltd, a non statutory government
company; the petitioner's argument was that the writ petition had been filed to stop the corporation from infringing the Indian
Electricity Act 1910 s 24; the court refused to issue the writ against the non statutory body as it refused to accept the petitioner's
argument that because there was a duty imposed by a statute on a company, a writ petition could lie if there was a breach of
that duty; instead, a suit could lie under certain circumstances for the purpose).
On the other hand, in a number of cases, the view has been expressed that a writ could be issued to a government company to
enforce a statutory duty laid on it. For example, in National Seeds Corpn Employees Union v National Seed Corpn AIR 1972
Del 292 [LNIND 1972 DEL 40] [LNIND 1972 DEL 40] [LNIND 1972 DEL 40]the high court accepted the position that
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mandamus, being a coercive and not corrective writ could be issued where a person, corporation or tribunal was required to
perform any public or statutory duty. In Gurbaksh Singh v Delhi State Industrial Development Corpn AIR 1978 Del 262 [LNIND
1978 DEL 73] [LNIND 1978 DEL 73] [LNIND 1978 DEL 73], Gurbaksh Singh v Delhi State Industrial Development Corpn (1978)
2 SLR 410, Gurbaksh Singh v Delhi State Industrial Development Corpn (1978) Lab IC 1580, the high court ruled that a
government company though non statutory, could still be regarded as an authority for the purposes of the Constitution of India
art 226 if it is discharging public functions and acts contrary to a statute or a statutory rule.
KL Mathew v Union of India AIR 1974 Ker 4 [LNIND 1973 KER 28] [LNIND 1973 KER 28] [LNIND 1973 KER 28](the creation
of a separate entity may facilitate the carrying out of many of the present day functions of the government; however, when the
rights of individuals are in any way affected or otherwise interfered with in this process, the true nature and character of the
function carried out by the legal entity will come up for scrutiny and if what has been done is found to be in violation of the
statutory obligations, that violation cannot be taken out of judicial review).
15
There has been difference of opinion among the high courts whether other registered bodies are subject to writ jurisdiction
under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
Y P Gupta v Union of India 1976 Lab IC 238(the Indian Council of Agricultural Research was not held to be an authority for the
purposes of the Constitution of India art 226, as it was not a statutory body created by a statute but was a voluntary association
registered under the Societies Registration Act 1860.
On the other hand, in the following cases, the high courts have held the registered societies as valid subjects for the
applicability of their writ jurisdiction: Samir Kumar Das v State of Bihar AIR 1982 Pat 66, Samir Kumar Das v State of Bihar
(1981) BLJR 578, Samir Kumar Das v State of Bihar (1981) Pat LJR 490; Jai Prakash Narain v State of Uttar Pradesh AIR
1982 All 147; U P Singh v Board of Governors, Maulana Azad College of Technology, Bhopal AIR 1982 MP 59 [LNIND 1981
MP 81] [LNIND 1981 MP 81] [LNIND 1981 MP 81], U P Singh v Board of Governors, Maulana Azad College of Technology,
Bhopal (1982) MP LJ 75, U P Singh v Board of Governors, Maulana Azad College of Technology, Bhopal (1982) Jab LJ 653
(natural justice must be observed when the college takes disciplinary action against a student).
The controversy regarding subjectivity of registered societies to the writ jurisdiction has lost much of its rationale after the
unequivocal declaration of the Supreme Court in Ajay Hasia v Khalid Mujib Sehravardi AIR 1981 SC 487 [LNIND 1980 SC 456]
[LNIND 1980 SC 456] [LNIND 1980 SC 456], Ajay Hasia v Khalid Mujib Sehravardi (1981) 1 SCC 722 [LNIND 1980 SC 456]
[LNIND 1980 SC 456] [LNIND 1980 SC 456], Ajay Hasia v Khalid Mujib Sehravardi [1981] 2 SCR 79 [LNIND 1980 SC 456]
[LNIND 1980 SC 456] [LNIND 1980 SC 456]that even a non statutory society, registered under the Societies Registration Act
1860 may be characterised as an authority under the Constitution of India art 12, if it is an instrumentality of the government.
16 J Tiwari v Jawala Devi Vidya Mandir AIR 1981 SC 122, J Tiwari v Jawala Devi Vidya Mandir (1979) 4 SCC 160, J Tiwari v
Jawala Devi Vidya Mandir (1979) 1 SLR 614; Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain AIR
1976 SC 888 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514], Executive Committee of Vaish Degree
College, Shamli v Lakshmi Narain (1976) 2 SCC 58 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514],
Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain [1976] 2 SCR 1006 [LNIND 1975 SC 514] [LNIND
1975 SC 514] [LNIND 1975 SC 514]; Arya Vidya Sabha Kashi v Krishan Kumar Shrivastava AIR 1976 SC 1073 [LNIND 1976
SC 62] [LNIND 1976 SC 62] [LNIND 1976 SC 62], Arya Vidya Sabha Kashi v Krishan Kumar Shrivastava (1976) 1 SCJ 425
[LNIND 1976 SC 62] [LNIND 1976 SC 62] [LNIND 1976 SC 62], Arya Vidya Sabha Kashi v Krishan Kumar Shrivastava (1976) 1
SCWR 257 [LNIND 1976 SC 62] [LNIND 1976 SC 62] [LNIND 1976 SC 62].
17 Harijander Singh v Kakatiya Medical College AIR 1975 AP 35 [LNIND 1974 AP 105] [LNIND 1974 AP 105] [LNIND 1974
AP 105](certiorari can be issued to a private affiliated college and an order cancelling admission of a student in breach of
natural justice was quashed). See contra Vaish College; Shakuntala Sahawala v Director of Public Instruction-II, Hyderabad
AIR 1977 AP 381 [LNIND 1977 AP 178] [LNIND 1977 AP 178] [LNIND 1977 AP 178], Shakuntala Sahawala v Director of Public
Instruction-II, Hyderabad (1977) Andh LT 492 [LNIND 1977 AP 178] [LNIND 1977 AP 178] [LNIND 1977 AP 178], Shakuntala
Sahawala v Director of Public Instruction-II, Hyderabad (1977) Lab IC 1730 [LNIND 1977 AP 178] [LNIND 1977 AP 178] [LNIND
1977 AP 178]; Kumkum Khanna v The Mother Acquinas, Principal, Jesus & Mary College, Chanakyapuri, New Delhi AIR 1976
Del 35, Kumkum Khanna v The Mother Acquinas, Principal, Jesus & Mary College, Chanakyapuri, New Delhi (1976) ILR 1
[LNIND 1975 RAJ 99] [LNIND 1975 RAJ 99] [LNIND 1975 RAJ 99] Del 708 (the high court issued a mandamus against the
principal of such a private college on the petition of a student in the matter of exercise of his powers under the university
ordinances; the high court ruled that the principal held a public office, had statutory duties to perform and was to act in public
capacity; that it was not necessary for purposes of mandamus that the office be the creature of a statute; that public office was
one where the powers and duties pertaining to the office related to a large section of the public).
18 See the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
19 Shri Anandi Mukta Sadguru, Shree Muktajee Vandajiswami Surana Jayanti Mahotsav Smarak Trust v Rudani AIR 1989 SC
1607 [LNIND 1989 SC 248] [LNIND 1989 SC 248] [LNIND 1989 SC 248], Shri Anandi Mukta Sadguru, Shree Muktajee
Vandajiswami Surana Jayanti Mahotsav Smarak Trust v Rudani (1989) 2 SCC 691 [LNIND 1989 SC 295] [LNIND 1989 SC 295]
[LNIND 1989 SC 295], Shri Anandi Mukta Sadguru, Shree Muktajee Vandajiswami Surana Jayanti Mahotsav Smarak Trust v
Rudani (1989) Lab IC 1550 [LNIND 1989 SC 295] [LNIND 1989 SC 295] [LNIND 1989 SC 295](a trust registered under the
Indian Trusts Act 1882 was running a school aided by the government; the teachers filed a writ petition claiming termination
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benefits from the trust when it closed down the school; the court held the trust subject to the high court's writ jurisdiction under
the Constitution of India art 226, as it was discharging a public function by way of imparting education to students; it was subject
to the rules and regulations of the affiliating university; its activities were closely supervised by the university authorities).
20 Ravneet Kaur v Christian Medical College, Ludhiana AIR 1998 P & H 1, Ravneet Kaur v Christian Medical College,
Ludhiana (1997) ILR 2 P & H 205; T T Chakravarthy Yuvaraj v Principal, Dr BR Ambedkar Medical college AIR 1997 Kant 261
[LNIND 1996 KANT 538] [LNIND 1996 KANT 538] [LNIND 1996 KANT 538]; Kobad Jehangir Bharda v Farokh Sidhwa AIR
1991 Bom 16 [LNIND 1990 BOM 257] [LNIND 1990 BOM 257] [LNIND 1990 BOM 257], Kobad Jehangir Bharda v Farokh
Sidhwa (1990) Mah LJ 883 [LNIND 1990 BOM 257] [LNIND 1990 BOM 257] [LNIND 1990 BOM 257], Kobad Jehangir Bharda v
Farokh Sidhwa (1990) 3 Bom CR 123 [LNIND 1990 BOM 257] [LNIND 1990 BOM 257] [LNIND 1990 BOM 257].
21 K Krishnamacharyulu v Sri Venkateswara Hindu college of Engineering AIR 1998 SC 295 [LNIND 1997 SC 326] [LNIND
1997 SC 326] [LNIND 1997 SC 326], K Krishnamacharyulu v Sri Venkateswara Hindu college of Engineering (1997) 3 SCC 571
[LNIND 1997 SC 326] [LNIND 1997 SC 326] [LNIND 1997 SC 326], K Krishnamacharyulu v Sri Venkateswara Hindu college of
Engineering (1998) Lab IC 405.
22 This is because of the Constitution of India art 39(d), which is a directive principle (see generally[80]CONSTITUTIONAL
LAW).
23 Rakesh Gupta v Hyderabad Stock Exchange Ltd AIR 1996 AP 413 [LNIND 1996 AP 399] [LNIND 1996 AP 399] [LNIND
1996 AP 399], Rakesh Gupta v Hyderabad Stock Exchange Ltd (1996) 2 Andh LT 757, Rakesh Gupta v Hyderabad Stock
Exchange Ltd (1996) 4 Com LJ 500; Sejal Rikeen Dalal v Stock Exchange, Bombay AIR 1991 Bom 30 [LNIND 1990 BOM 230]
[LNIND 1990 BOM 230] [LNIND 1990 BOM 230], Sejal Rikeen Dalal v Stock Exchange, Bombay (1990) Mah LJ 860 [LNIND
1990 BOM 230] [LNIND 1990 BOM 230] [LNIND 1990 BOM 230].
24 See the Industrial Disputes Act 1947 s 10A.
25 Rohtas Industries Ltd v Rohtas Industries Staff Union AIR 1976 SC 425 [LNIND 1975 SC 523] [LNIND 1975 SC 523]
[LNIND 1975 SC 523], 449, Rohtas Industries Ltd v Rohtas Industries Staff Union (1976) 2 SCC 82 [LNIND 1975 SC 523]
[LNIND 1975 SC 523] [LNIND 1975 SC 523], Rohtas Industries Ltd v Rohtas Industries Staff Union (1976) 2 SCJ 425;
Engineering Mazdoor Sabha v Hind Cycles Ltd AIR 1963 SC 874 [LNIND 1962 SC 337] [LNIND 1962 SC 337] [LNIND 1962 SC
337], Engineering Mazdoor Sabha v Hind Cycles Ltd (1963) 2 SCA 101, Engineering Mazdoor Sabha v Hind Cycles Ltd (1962)
2 Lab LJ 760.
26 Uttar Pradesh State Coop Land Development Bank Ltd v Chandra Bhan Dubey AIR 1999 SC 753 [LNIND 1998 SC 1116]
[LNIND 1998 SC 1116] [LNIND 1998 SC 1116], Uttar Pradesh State Coop Land Development Bank Ltd v Chandra Bhan Dubey
(1999) 1 SCC 741 [LNIND 1998 SC 1116] [LNIND 1998 SC 1116] [LNIND 1998 SC 1116], Uttar Pradesh State Coop Land
Development Bank Ltd v Chandra Bhan Dubey (1999) All LJ 463(the Uttar Pradesh State Co operative Land Development
Bank is a cooperative society registered under the Co operative Societies Act; it has been held to be an authority under the
Constitution of India art 226 for the following reasons: (1) it has been constituted by the state under the provision of the Bank
Act 1964; and (2) the control of the state government on the co operative bank is all pervasive).

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/ (1) GENERALLY/[005.227]
Necessary and proper parties
[005.227] Necessary and proper parties In a writ petition, the necessary parties must and proper parties
may, be impleaded. A necessary party is one against whom relief is sought and without whom no effective
order can be made. A proper party is one whose presence is considered proper for a complete and final
decision on the question involved in the writ proceeding; though in whose absence, an effective order may
be made1. The presence of these parties is required in order to enable the court to adjudicate effectively and
completely and settle all the questions which are involved in the writ petition2. If the number of such parties is
large, at least some of them must be joined in a representative capacity3. It is a settled law that no order to
the detriment of a person can be passed without hearing him4.
In a petition for certiorari5, not only the tribunal whose order is sought to be quashed but also the parties in
whose favour the said order is issued, are regarded as necessary parties. In such a petition, therefore, not
only the concerned tribunal but all those who were parties before the tribunal and in whose favour the
impugned order had been passed must be present to prevent the petition from being rejected6.
In a single petition, the petitioner may implead several independent authorities as respondents if the
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complaint against them is the same and the petition raises a common question. However, if these authorities
raise different defences and the court finds that it is not convenient or proper to adjudicate upon the cases of
the various defendants in the same writ petition, the court may order that separate petitions be filed7.
A single writ petition cannot be filed on behalf of several petitioners who have no jural relationship subsisting
among them, even if the questions of law and fact involved are common. However, the joinder of more than
one person is permissible when the cause of action is the same but not when the cause of action is similar8.
1 GM, South Central Rly, Secunderabad v A VR Siddhanti AIR 1974 SC 1755 [LNIND 1974 SC 22] [LNIND 1974 SC 22]
[LNIND 1974 SC 22], GM, South Central Rly, Secunderabad v A VR Siddhanti (1974) 4 SCC 335 [LNIND 1974 SC 22] [LNIND
1974 SC 22] [LNIND 1974 SC 22], GM, South Central Rly, Secunderabad v A VR Siddhanti (1974) Lab IC 587(where the
petitioner challenged the policy decisions of the Railway Board, regulating seniority of the staff on the ground of their being
violative of the Constitution of India arts 14 and 16 and the relief was claimed only against the Railway Board, it is sufficient if
Railway Board was impleaded; non joinder of the employees likely to be affected by the decision was not considered as fatal to
the writ petition as these were at the most only proper parties but not necessary parties); A Janardhana v Union of India AIR
1983 SC 769 [LNIND 1983 SC 127] [LNIND 1983 SC 127] [LNIND 1983 SC 127], A Janardhana v Union of India (1983) 3 SCC
601 [LNIND 1983 SC 127] [LNIND 1983 SC 127] [LNIND 1983 SC 127], A Janardhana v Union of India (1983) Lab IC 849
[LNIND 1983 SC 127] [LNIND 1983 SC 127] [LNIND 1983 SC 127](persons in the revised seniority list, where the list was
challenged as being violative of the Constitution of India arts 14 and 16 and the relief was sought only against the Government
of India and not against any particular individual); State of Uttar Pradesh v Ram Gopal Shukla AIR 1981 SC 1041 [LNIND 1981
SC 221] [LNIND 1981 SC 221] [LNIND 1981 SC 221], State of Uttar Pradesh v Ram Gopal Shukla (1981) 3 SCC 1 [LNIND
1981 SC 221] [LNIND 1981 SC 221] [LNIND 1981 SC 221], State of Uttar Pradesh v Ram Gopal Shukla (1981) All LJ 450;
Dharampal Singh v Director of Small Scale Industries Services AIR 1980 SC 1888, Dharampal Singh v Director of Small Scale
Industries Services (1980) All LJ 943, Dharampal Singh v Director of Small Scale Industries Services (1980) 6 All LR 254 (it
was not considered necessary to make the Union of India a party where in the proceedings for eviction of the Small Scale
Industries Services Institute, the Director of the Institute and the Secretary to the Government of India, Ministry of Industrial
Development, were made parties); Ramchandra Shankar Deodhar v State of Maharasthtra AIR 1974 SC 259 [LNIND 1973 SC
329] [LNIND 1973 SC 329] [LNIND 1973 SC 329], Ramchandra Shankar Deodhar v State of Maharasthtra (1974) 1 SCC 317
[LNIND 1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329], Ramchandra Shankar Deodhar v State of Maharasthtra
[1974] 2 SCR 216 [LNIND 1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329]; Ajay Kumar v Chandigarh
Administration, Chandigarh AIR 1983 P & H 8, Ajay Kumar v Chandigarh Administration, Chandigarh (1983) ILR 2 P & H 297
(candidates granted admission unconstitutionally where the method of spot selection was challenged, because the individual
cases were not being questioned but the very constitutionality of the state action); Subrata Mukherjee v State of West Bengal
AIR 1982 Cal 430 [LNIND 1982 CAL 40] [LNIND 1982 CAL 40] [LNIND 1982 CAL 40](co sharers of a property, where the
notice of requisition of land was received by only one co sharer who alone challenged the governmental action).
2 State of Himachal Pradesh v Kailash Chand Mahajan AIR 1992 SC 1277 [LNIND 1992 SC 183] [LNIND 1992 SC 183]
[LNIND 1992 SC 183], State of Himachal Pradesh v Kailash Chand Mahajan (1992) 2 SCC 351, State of Himachal Pradesh v
Kailash Chand Mahajan (1992) Lab IC 1317; A Janardhana v Union of India AIR 1983 SC 769 [LNIND 1983 SC 127] [LNIND
1983 SC 127] [LNIND 1983 SC 127], A Janardhana v Union of India (1983) 3 SCC 601 [LNIND 1983 SC 127] [LNIND 1983 SC
127] [LNIND 1983 SC 127], A Janardhana v Union of India (1983) 2 SCWR 79 [LNIND 1983 SC 127] [LNIND 1983 SC 127]
[LNIND 1983 SC 127]; Harcharan Singh v Financial Commissioner, Revenue, Punjab, Chandigarh AIR 1997 P & H 40,
Harcharan Singh v Financial Commissioner, Revenue, Punjab, Chandigarh (1996) Punj LR 427, Harcharan Singh v Financial
Commissioner, Revenue, Punjab, Chandigarh (1997) HRR 349.
3 Prabodh Verma v State of Uttar Pradesh AIR 1985 SC 167 [LNIND 1984 SC 376] [LNIND 1984 SC 376] [LNIND 1984 SC
376], Prabodh Verma v State of Uttar Pradesh (1984) 4 SCC 251 [LNIND 1984 SC 376] [LNIND 1984 SC 376] [LNIND 1984 SC
376], Prabodh Verma v State of Uttar Pradesh [1985] 1 SCR 216 [LNIND 1984 SC 376] [LNIND 1984 SC 376] [LNIND 1984 SC
376]; (the Shiksha Sangh brought a writ petition in the High Court of Allahabad challenging the validity of an ordinance
promulgated by the government; if the writ petition succeeded, reserve pool teachers would have been adversely affected but
they were not joined as parties to the petition; this non joinder of necessary parties was a defect as the reserve pool teachers
who were vitally concerned were not made parties, not even by joining some of them in a representative capacity, considering
that their number was too large for all of them to be joined individually as respondents); Udit Narain Singh Malpaharia v Addl
Member, Board of Revenue, Bihar AIR 1963 SC 786 [LNIND 1962 SC 338] [LNIND 1962 SC 338] [LNIND 1962 SC 338], Udit
Narain Singh Malpaharia v Addl Member, Board of Revenue, Bihar (1963) BLJR 512 [LNIND 1962 SC 338] [LNIND 1962 SC
338] [LNIND 1962 SC 338] (in the absence of a necessary party, the writ petition itself is incompetent).
4 Ram Swarup v SN Maira AIR 1999 SC 941 [LNIND 1998 SC 1111] [LNIND 1998 SC 1111] [LNIND 1998 SC 1111], Ram
Swarup v SN Maira (1999) 1 SCC 738 [LNIND 1998 SC 1111] [LNIND 1998 SC 1111] [LNIND 1998 SC 1111], Ram Swarup v
SN Maira (1998) 8 JT 649 [LNIND 1998 SC 1111] [LNIND 1998 SC 1111] [LNIND 1998 SC 1111]; State of Kerala v WI
Services & Estates Ltd, (1998) 5 SCC 583 (the Central Government allotted a limited quantity of liquid fuel to the State of
Kerala; several applicants including the respondent applied for allotment of fuel to their independent power projects (IPP's); the
entire quantity of the fuel was allotted to four IPPS, excluding the respondent; the respondent filed a writ petition challenging the
selection policy of the state without impleading the applicants whose IPPS had been selected; the writ petition was held not
maintainable in the absence of those applicants as parties); Bhagwanti v Subordinate Services Selection Board, Haryana 1995
Supp 2 SCC 663 (selection and appointment of candidates made by the Subordinate Services Selection Board, Haryana, were
322 131
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quashed by the high court without impleading the selected/appointed candidates as parties; the high court order was set aside
by the Supreme Court because the high court had quashed the selection/appointment without hearing the persons concerned);
Ishwar Singh v Kuldip Singh, (1995) Supp 1 SCC 179; A Periakaruppan v State of Tamil Nadu AIR 1971 SC 2303 [LNIND 1970
SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC 386], A Periakaruppan v State of Tamil Nadu (1971) 2 SCJ 222 [LNIND 1970
SC 386] [LNIND 1970 SC 386] [LNIND 1970 SC 386], A Periakaruppan v State of Tamil Nadu (1971) 2 Mad LJ (SC) 65
(selections for admission to medical colleges in the state had not been validly made; however, even then, the court refused to
set aside the selections made, on the ground that the selected candidates had not been made parties to the writ petition; their
selection could not be set aside without giving the an opportunity to put forward their case); Tarak Singh v Jyoti Basu AIR 1999
Cal 354 [LNIND 1999 CAL 30] [LNIND 1999 CAL 30] [LNIND 1999 CAL 30], Tarak Singh v Jyoti Basu (1999) 1 Cal LJ 220
[LNIND 1999 CAL 30] [LNIND 1999 CAL 30] [LNIND 1999 CAL 30], Tarak Singh v Jyoti Basu (1999) 1 Cal HN 293(the Chief
Minister of West Bengal allotted certain plots of land to a number of persons and this allotment was challenged as being
arbitrary and unfair through a writ petition under the Constitution of India art 226; the allottees were not made parties to the writ
petition; the high court came to the conclusion that the allotments made by the chief Minister were arbitrary and without any
reason but the court refused to quash the allotments because of non joinder of allottees as parties; the court ruled that the
allottees must get a chance to place their facts before the court as without granting such a chance to the allottees, any order
passed against them by the court would be a violation of natural justice); Gram Panchayat, Mahawa v Advisory Committee AIR
1983 Raj 71, Gram Panchayat, Mahawa v Advisory Committee (1983) Raj LW 244.
6 Uttar Pradesh Residents Employees Coop House Building Society, Delhi v New Okhla Industrial Development Authority, Post
Office, NOIDA AIR 1983 All 303, Uttar Pradesh Residents Employees Coop House Building Society, Delhi v New Okhla
Industrial Development Authority, Post Office, NOIDA (1983) UPLBEC 521 (when allegations of mala fides were made against
a person and he was not made a party, the writ petition was not maintainable); Munna v State of Uttar Pradesh AIR 1982 SC
806 [LNIND 1982 SC 22] [LNIND 1982 SC 22] [LNIND 1982 SC 22], Munna v State of Uttar Pradesh (1982) 1 SCC 545 [LNIND
1982 SC 22] [LNIND 1982 SC 22] [LNIND 1982 SC 22], Munna v State of Uttar Pradesh (1982) Cr LJ 620 (where the relief
sought was against maltreatment given to juvenile prisoners and the allegations of maltreatment were based on certain
statements said to have been made by a person and set out in a newspaper report, it was held that the person must have been
made a party so that he could place all material facts gathered by him before the court); Udit Narain Singh Malpaharia v Addl
Member, Board of Revenue, Bihar AIR 1963 SC 786 [LNIND 1962 SC 338] [LNIND 1962 SC 338] [LNIND 1962 SC 338], Udit
Narain Singh Malpaharia v Addl Member, Board of Revenue, Bihar (1963) BLJR 512 [LNIND 1962 SC 338] [LNIND 1962 SC
338] [LNIND 1962 SC 338]; as a writ a certiorari will be granted to remove the record of proceedings of an inferior tribunal or
authority exercising judicial or quasi judicial acts, ex hypothesis it follows that the high court in exercising its jurisdiction must
also act judicially in disposing of the proceedings before it; it is implicit in such a proceeding that a tribunal or authority which is
directed to transmit the records must be a party in the writ proceedings, for, without giving notice to it, the record of proceedings
cannot be brought to the high court; also, if suh a tribunal or authority is not made a party to the writ, it can easily ignore the
order of the high court quashing the order, for, not being a party, it will not be liable to contempt). See also; Ghulam Qadir v
Special Tribunal 2002 1 SCC 33 [LNIND 2001 SC 2216] [LNIND 2001 SC 2216] [LNIND 2001 SC 2216]; Hari Vishnu Kamath v
Ahmad Ishaque AIR 1955 SC 233 [LNIND 1954 SC 174] [LNIND 1954 SC 174] [LNIND 1954 SC 174](certiorari can be issued
to an ad hoc tribunal which is set up to decide a specific dispute; though the tribunal becomes functus officio after deciding the
matter, its record is still available and the high court can recall the same and quash it if found necessary; certiorari is directed
against a decision which has been rendered by a court or tribunal and the continued existence of that court or tribunal is not a
condition of its decision being annulled.
7 Umesh Chand Vinod Kumar v Krishi Utpadan Mandi Samiti, Bharthana AIR 1984 All 46 [LNIND 1983 SC 292] [LNIND 1983
SC 292] [LNIND 1983 SC 292], Umesh Chand Vinod Kumar v Krishi Utpadan Mandi Samiti, Bharthana (1983) UPLBEC 756.
8 Mota Singh v State of Haryana AIR 1981 SC 484, Mota Singh v State of Haryana (1980) Supp SCC 600, Mota Singh v State
of Haryana (1980) UJ 913 (to challenge a state tax, several truck owners having no relation with each other either as partners
or having any legally subsisting jural relationship, filed a writ petition; the court ruled that they could not join in one petition, as
each of them had his own cause of action arising out of his liability to pay individually; the court laid down the principle that
where every petitioner has his own independent cause of action, although it may arise out of the same single legislative or
administrative action, he must file a separate and independent petition); Umesh Chand Vinod Kumar v Krishi Utpadan Mandi
Samiti, Bharthana AIR 1984 All 46 [LNIND 1983 SC 292] [LNIND 1983 SC 292] [LNIND 1983 SC 292], Umesh Chand Vinod
Kumar v Krishi Utpadan Mandi Samiti, Bharthana (1983) UPLBEC 756 (a number of persons filed one writ petition jointly
challenging the right of the mandi samiti to charge market fee; the high court held the writ petition to be non maintainable; the
petitioners were businessmen, each one of them carrying on his business separately and thus each of them was in effet
seeking to enforce his own individual right; although the principal question raised is the same, each petitioner had an
independent cause of action and so they could not maintain a joint writ petition).

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/(1) GENERALLY/[005.228] Misuse
of writ process
323 132
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[005.228] Misuse of writ process A writ petitioner must come to the court with clean hands1. If a writ
petitioner suppresses any material fact, then the writ petition is liable to be dismissed, as this would disentitle
him from getting any discretionary relief from the writ court. A petitioner who approaches the court with
misleading and suppressing materials is not entitled to any relief whatsoever2. Such petitioner may be
imposed with costs, taking into consideration the circumstances of the case3.
An order obtained by playing fraud, by collusion or by abuse of the process of court must be quashed4.
A person is not permitted to file successive writ petitions for the same cause of action and that too without
disclosing the tendency of the earlier writ petition as it amounts to abuse of the process of the court5.
A proceeding being filed for a collateral purpose or for a spurious claim may also amount to an abuse of the
process of the court. When a person files a frivolous writ petition, the court may award special costs against
him6. The Supreme Court has exhorted the high courts to exercise their writ jurisdiction to uphold justice and
not against social interest and public good7.
1 K R Srinivas v RM Prem Chand 1994 6 SCC 620, K R Srinivas v RM Prem Chand (1995) 1 SCJ 113; SP Chengalvaraya
Naidu (decd) by lrs v Jagannath (decd) by lrs AIR 1994 SC 853 [LNIND 1993 SC 901] [LNIND 1993 SC 901] [LNIND 1993 SC
901], SP Chengalvaraya Naidu (decd) by lrs v Jagannath (decd) by lrs (1994) 1 SCJ 179, SP Chengalvaraya Naidu (decd) by
lrs v Jagannath (decd) by lrs (1994) 1 SCC 1 [LNIND 1993 SC 901] [LNIND 1993 SC 901] [LNIND 1993 SC 901]; Ramjas
Foundation v Union of India AIR 1993 SC 852 [LNIND 1992 SC 823] [LNIND 1992 SC 823] [LNIND 1992 SC 823], Ramjas
Foundation v Union of India AIR 1992 SCW 3460, Ramjas Foundation v Union of India (1993) Supp 2 SCC 20; Ram Singh v
Indian Oil Corp AIR 1999 P & H 61, Ram Singh v Indian Oil Corp (1999) (121) Pan LR 343, Ram Singh v Indian Oil Corp
(1998) 4 Rec Civ R; Madhu Jajoo v State of Rajasthan AIR 1999 Raj 1, Madhu Jajoo v State of Rajasthan (1998) 3 Raj LW
1914, Madhu Jajoo v State of Rajasthan (1999) 1 Raj LR 121; Rajbirsingh v Purushottam Lal AIR 1996 All 170 [LNIND 1995
ALL 633] [LNIND 1995 ALL 633] [LNIND 1995 ALL 633], Rajbirsingh v Purushottam Lal (1996) All LJ 498.
2 Ram Singh v Indian Oil Corp AIR 1999 P & H 61, Ram Singh v Indian Oil Corp (1999) (121) Pan LR 343, Ram Singh v
Indian Oil Corp (1998) 4 Rec Civ R; Madhu Jajoo v State of Rajasthan AIR 1999 Raj 1, Madhu Jajoo v State of Rajasthan
(1998) 3 Raj LW 1914, Madhu Jajoo v State of Rajasthan (1999) 1 Raj LR 121; Ramjas Foundation v Union of India AIR 1993
SC 852 [LNIND 1992 SC 823] [LNIND 1992 SC 823] [LNIND 1992 SC 823], Ramjas Foundation v Union of India AIR 1992
SCW 3460, Ramjas Foundation v Union of India (1993) Supp 2 SCC 20.
3 Vijay Kumar Kathuria v State of Haryana AIR 1983 SC 622 [LNIND 1983 SC 136] [LNIND 1983 SC 136] [LNIND 1983 SC
136], Vijay Kumar Kathuria v State of Haryana (1983) 3 SCC 333 [LNIND 1983 SC 136] [LNIND 1983 SC 136] [LNIND 1983 SC
136], Vijay Kumar Kathuria v State of Haryana (1983) UJ 454(a petitioner who invokes the jurisdiction of the high court under
the Constitution of India art 226 by suppressing the material may be awarded costs taking into account the circumstances of the
case; the conduct of the petitioner is to be deprecated in very strong terms when he suppresses material facts and misleads the
court to obtain interim orders and due to such conduct, the petitioner may be disentitled from getting any relief or assistance
from the court); Maganlal Chaganlal (Pvt) Ltd v Municipal Corpn of Greater Bombay AIR 1975 SC 648 [LNIND 1974 SC 151]
[LNIND 1974 SC 151] [LNIND 1974 SC 151], Maganlal Chaganlal (Pvt) Ltd v Municipal Corpn of Greater Bombay (1975) 1 SCC
339.
4 Andhra Pradesh State Financial Corpn v GAR Re Rolling Mills AIR 1994 SC 2151, Andhra Pradesh State Financial Corpn v
GAR Re Rolling Mills (1994) 2 SCC 647, Andhra Pradesh State Financial Corpn v GAR Re Rolling Mills (1994) 1 SCJ 579(the
court of equity, when exercising its equitable jurisdiction, under the Constitution of India art 226 must act as to prevent
perpetuation of a legal fraud and the courts are obliged to do justice by promotion of good faith, so far as it lies within their
power; the Supreme Court has emphasised that it would not allow an order to remain operative for a moment if the order has
been obtained by abuse of the process of the court or by playing fraud or collusion); Ramachandra Ganapat Shinde v State of
Maharashtra AIR 1994 SC 1673 [LNIND 1993 SC 605] [LNIND 1993 SC 605] [LNIND 1993 SC 605], Ramachandra Ganapat
Shinde v State of Maharashtra (1994) 4 SCC 216, Ramachandra Ganapat Shinde v State of Maharashtra (1994) SCJ 452 (the
Court imposed cost of Rs 20,000 against the offending parties).
5 A litigant does not have an unlimited access to court time and public money in order to get his affairs settled in the manner as
he wishes. Easy access to justice must not be misused as a license to file misconceived and frivolous petitions: Budhai Kota
Subbarao v K Parasaram AIR 1996 SC 2687 [LNIND 1996 SC 1254] [LNIND 1996 SC 1254] [LNIND 1996 SC 1254], Budhai
Kota Subbarao v K Parasaram (1996) 5 SCC 530 [LNIND 1996 SC 1254] [LNIND 1996 SC 1254] [LNIND 1996 SC 1254],
Budhai Kota Subbarao v K Parasaram (1996) 7 JT 265 [LNIND 1996 SC 1254] [LNIND 1996 SC 1254] [LNIND 1996 SC 1254];
KK Modi v KN Modi AIR 1998 SC 1297 [LNIND 1998 SC 1188] [LNIND 1998 SC 1188] [LNIND 1998 SC 1188], KK Modi v KN
Modi (1998) 3 SCC 573 [LNIND 1998 SC 1188] [LNIND 1998 SC 1188] [LNIND 1998 SC 1188], KK Modi v KN Modi (1998) 1
UJ 623.
6 Pukhraj Shisodia v State of Rajasthan AIR 1999 Raj 256, Pukhraj Shisodia v State of Rajasthan (1999) 2 Raj LW 798,
Pukhraj Shisodia v State of Rajasthan (2000) 1 WLC 126.
324 133
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7 State of Maharashtra v Prabhu 1994 2 SCC 481, State of Maharashtra v Prabhu (1995) 1 LLJ 622 (it is the responsibility of
the high court, as custodian of the constitution to maintain social balance by interfering where necessary for the sake of justice
and refusing to interfere where it is against the social interest and public good).

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/(2) PARTICULAR ASPECTS OF
WRIT JURISDICTION/[005.229] Res judicata
[005.229] Res judicata The rule of res judicata1 is basically a rule of private law but has been transposed
into the area of writ proceedings as well. Thus, a person is debarred from taking one proceeding after
another and urging new grounds every time, in respect of one and the same cause of action CA,using
harassment to the opposite party. This means that when once a high court has disposed of a writ petition2 on
merits, then a subsequent writ petition cannot be moved in the high court relating to the same cause of
action3.
A writ petition on the same grounds, filed in a high court is liable to be rejected on grounds of res judicata4.
Likewise. When once a tax assessment order has been unsuccessfully challenged through a writ petition, it
cannot be challenged again through another writ petition even if the petitioner assessee wishes to raise
some new grounds against the order which he failed to urge earlier. However, a tax assessment order for the
subsequent year may be challenged on the basis of new grounds5.
Disposal of a writ petition by a high court on merits bars a subsequent petition for a writ before the Supreme
Court6. Even a regular suit, between the same parties for the same cause of action is barred because of the
principle of res judicata7.
The rule of res judicata is based on public policy. It is in the interest of the public at large that finality must be
attached to the binding decisions pronounced by the courts of competent jurisdiction. Further, it is also in
public interest that individuals must not be vexed twice over the same kind of litigation8.
When a writ petition is dismissed by the high court in limine, without passing a speaking order, it does not
create res judicata for a petition before the Supreme Court9. The reason is that, in the absence of a speaking
order, it is not possible to decide what facts weighed in the mind of the high court. Similarly, if a writ petition
is dismissed by the high court through a speaking order on a technical ground, such as, the petitioner was
guilty of laches10 or that he had an alternative remedy11, then also it would not be a bar for a subsequent writ
petition before the Supreme Court, except in cases where the facts found by the high court are themselves
relevant for a petition before the Supreme Court12.
In case a writ petition is dismissed by a high court on the ground of laches or alternative remedy, then
another writ petition before another bench of the high court is barred. The reason is that entertaining the
second writ petition would render the order of the same court dismissing the earlier writ petition redundant
and nugatory. Further, if a petitioner is allowed to file a second writ petition after the dismissal of his earlier
petition in limine, it would encourage an unsuccessful petitioner to go on filing one writ petition after another
in the same matter in the same high court and there could thus be no finality for a court order dismissing a
writ petition13.
After dismissing a special leave petition for appeal14 against a high court judgment, the Supreme Court will
not entertain any writ petition15 on the ground of res judicata. Also, once the Supreme Court has passed an
order on merits in regard to a special leave petition, no writ petition is maintainable by the apex court on the
same issue16. This is the general rule. However, an exception from the rule may be made when the life of an
individual is at stake17.
When the Supreme Court dismisses a special leave without a speaking order, it does not create res judicata
for a subsequent writ petition before a high court. Dismissal of a special leave petition only means that the
court had decided that the case was not fit for appeal; it is not a decision on merits and so a writ petition is
325 134
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maintainable before a high court to try identical issues18.
In case of the writ of habeas corpus19, the principle of res judicata does not apply20. Thus, when a petition
challenging an order of detention is dismissed by the high court, a second petition can be filed on fresh,
additional grounds to challenge the legality of the continued detention of the petitioner21.
When a writ petition is withdrawn from before a high court, without seeking permission of the high court to file
a fresh petition, the petitioner cannot file a fresh writ petition for agitating the same cause once again. This is
on the ground of public policy22.
1 As to res judicata see civil procedure [65.128].
2 Ie a writ petition under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
3 M S M Sharma v Shree Krishna Sinha AIR 1960 SC 1186 [LNIND 1960 SC 168] [LNIND 1960 SC 168] [LNIND 1960 SC
168].
4 Ram Saran Tripathy v Chancellor, Gorakhpur University AIR 1990 All 96 [LNIND 1989 ALL 354] [LNIND 1989 ALL 354]
[LNIND 1989 ALL 354](the high court dismissed a writ petition against the Chancellor and the vice Chancellor of a University;
thereafter, the petitioner made representation to the vice Chancellor and the Chancellor but it was rejected; he then filed
another writ petition under Constitution of India art 226 in the high court on the same subject matter but the high court dismissed
the same).
5 Kunwar Ram Nath v Municipal Voard, Pilibhit AIR 1983 SC 930 [LNIND 1983 SC 164] [LNIND 1983 SC 164] [LNIND 1983
SC 164], Kunwar Ram Nath v Municipal Voard, Pilibhit (1983) 3 SCC 357 [LNIND 1983 SC 164] [LNIND 1983 SC 164] [LNIND
1983 SC 164], Kunwar Ram Nath v Municipal Voard, Pilibhit (1983) SCC Tax 191; Devilal Modi v Sales Tax Officer, Ratlam
AIR 1965 SC 1150 [LNIND 1964 SC 262] [LNIND 1964 SC 262] [LNIND 1964 SC 262], Devilal Modi v Sales Tax Officer,
Ratlam (1965) 1 SCJ 579 [LNIND 1964 SC 262] [LNIND 1964 SC 262] [LNIND 1964 SC 262], Devilal Modi v Sales Tax Officer,
Ratlam (1965) 16 STC 303 [LNIND 1964 SC 262] [LNIND 1964 SC 262] [LNIND 1964 SC 262]; Amalgamated Coalfields Ltd v
Janpada Sabha, Chhindwara AIR 1961 SC 964 [LNIND 1961 SC 52] [LNIND 1961 SC 52] [LNIND 1961 SC 52], Amalgamated
Coalfields Ltd v Janpada Sabha, Chhindwara (1961) 1 SCJ 445, Amalgamated Coalfields Ltd v Janpada Sabha, Chhindwara
6 Daryao v State of Uttar Pradesh AIR 1961 SC 1457 [LNIND 1961 SC 133] [LNIND 1961 SC 133] [LNIND 1961 SC 133],
Daryao v State of Uttar Pradesh (1961) 2 SCA 591, Daryao v State of Uttar Pradesh [1962] 1 SCR 574 [LNIND 1961 SC 133]
[LNIND 1961 SC 133] [LNIND 1961 SC 133]; Nagabhushanam v Ankam Ankaiah AIR 1968 AP 74 [LNIND 1966 AP 187]
[LNIND 1966 AP 187] [LNIND 1966 AP 187], Nagabhushanam v Ankam Ankaiah (1968) 1 Andh LT 32.
7 Gulabchand Chhotalal Parikh v State of Gujarat AIR 1965 SC 1153 [LNIND 1964 SC 351] [LNIND 1964 SC 351] [LNIND
1964 SC 351], Gulabchand Chhotalal Parikh v State of Gujarat (1965) 2 SCJ 58 [LNIND 1964 SC 351] [LNIND 1964 SC 351]
[LNIND 1964 SC 351], Gulabchand Chhotalal Parikh v State of Gujarat (1965) 2 SCA 566 [LNIND 1964 SC 351] [LNIND 1964
SC 351] [LNIND 1964 SC 351].
[LNIND 1961 SC 133] [LNIND 1961 SC 133]; Virudhnagar Steel Rolling Mills Ltd v The Government of Madras AIR 1968 SC
1196 [LNIND 1968 SC 4] [LNIND 1968 SC 4] [LNIND 1968 SC 4], Virudhnagar Steel Rolling Mills Ltd v The Government of
Madras (1968) 2 SCJ 621, Virudhnagar Steel Rolling Mills Ltd v The Government of Madras (1968) 2 SCWR 408.
[LNIND 1961 SC 133] [LNIND 1961 SC 133]; Hoshnak Singh v Union of India AIR 1979 SC 1328 [LNIND 1979 SC 156]
[LNIND 1979 SC 156] [LNIND 1979 SC 156], Hoshnak Singh v Union of India (1979) 3 SCC 135 [LNIND 1979 SC 156] [LNIND
1979 SC 156] [LNIND 1979 SC 156], Hoshnak Singh v Union of India [1979] 3 SCR 398.
11 As to alternative legal remedy see [005.230] and [005.272].
12 Joseph Pothen v State of Kerala AIR 1965 SC 1514 [LNIND 1965 SC 22] [LNIND 1965 SC 22] [LNIND 1965 SC 22],
Joseph Pothen v State of Kerala (1966) 1 SCJ 99, Joseph Pothen v State of Kerala (1965) SCD 893(a writ petition under the
Constitution of India art 226 was dismissed; the Supreme Court refused to treat the high court decision as res judicata to a
subsequent petition under the Constitution of India art 32, because the high court had not gone into the merits of the petitioner's
contentions); Anati Roy Choudhary v Union of India AIR 1974 SC 532 [LNIND 1973 SC 301] [LNIND 1973 SC 301] [LNIND
1973 SC 301], Anati Roy Choudhary v Union of India (1974) 1 SCC 87 [LNIND 1973 SC 301] [LNIND 1973 SC 301] [LNIND
1973 SC 301], Anati Roy Choudhary v Union of India [1974] 2 SCR 1 [LNIND 1973 SC 301] [LNIND 1973 SC 301] [LNIND 1973
SC 301].
326 135
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13 Brij Bihari Pandey v State of Bihar AIR 1997 Pat 74; State of Uttar Pradesh v Labh Cahnd AIR 1994 SC 754 [LNIND 1993
SC 109] [LNIND 1993 SC 109] [LNIND 1993 SC 109]at 761, State of Uttar Pradesh v Labh Cahnd (1994) 2 SCC 49, State of
Uttar Pradesh v Labh Cahnd [1993] 1 SCR 878 [LNIND 1993 SC 109] [LNIND 1993 SC 109] [LNIND 1993 SC 109].
14 Ie an appeal under the Constitution of India art 136 (see generally[80]CONSTITUTIONAL LAW).
16 Jharia v State of Rajasthan AIR 1983 SC 1090 [LNIND 1983 SC 173] [LNIND 1983 SC 173] [LNIND 1983 SC 173], Jharia v
State of Rajasthan (1983) 4 SCC 7 [LNIND 1983 SC 173] [LNIND 1983 SC 173] [LNIND 1983 SC 173], Jharia v State of
Rajasthan (1983) SCC (Cr) 757; Babu Singh Bains v Union of India AIR 1997 SC 116 [LNIND 1996 SC 1437] [LNIND 1996 SC
1437] [LNIND 1996 SC 1437], Babu Singh Bains v Union of India AIR (1966) SCW 4275, Babu Singh Bains v Union of India
17 Harbans Singh v State of Uttar Pradesh AIR 1982 SC 849 [LNIND 1982 SC 43] [LNIND 1982 SC 43] [LNIND 1982 SC 43],
Harbans Singh v State of Uttar Pradesh (1982) 2 SCC 101 [LNIND 1982 SC 43] [LNIND 1982 SC 43] [LNIND 1982 SC 43],
Harbans Singh v State of Uttar Pradesh (1982) 1 SCJ 340.
18 Ahmedabad Manufacturing & Calico Printing Co Ltd v Workmen AIR 1981 SC 960 [LNIND 1981 SC 149] [LNIND 1981 SC
149] [LNIND 1981 SC 149], Ahmedabad Manufacturing & Calico Printing Co Ltd v Workmen (1981) 2 SCC 663 [LNIND 1981
SC 149] [LNIND 1981 SC 149] [LNIND 1981 SC 149], Ahmedabad Manufacturing & Calico Printing Co Ltd v Workmen (1981) 2
SCJ 80 [LNIND 1981 SC 149] [LNIND 1981 SC 149] [LNIND 1981 SC 149]; Indian Oil Corporation Ltd v State of Bihar AIR
1986 SC 1780 [LNIND 1986 SC 262] [LNIND 1986 SC 262] [LNIND 1986 SC 262], Indian Oil Corporation Ltd v State of Bihar
(1986) 4 SCC 146 [LNIND 1986 SC 262] [LNIND 1986 SC 262] [LNIND 1986 SC 262], Indian Oil Corporation Ltd v State of
Bihar [1986] 3 SCR 553 [LNIND 1986 SC 262] [LNIND 1986 SC 262] [LNIND 1986 SC 262]; Sahi Ram v Avtar Singh AIR 1999
Del 96 [LNIND 1998 DEL 894] [LNIND 1998 DEL 894] [LNIND 1998 DEL 894]; The Workmen of Cochin Port Trust v The Board
of Trustees of the Cochin Port Trust AIR 1978 SC 1283 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158],
The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin Port Trust (1978) 3 SCC 119 [LNIND 1978 SC 158]
[LNIND 1978 SC 158] [LNIND 1978 SC 158], The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin Port
Trust (1978) 2 SCJ 518 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158].
20 As to specific writs see [005.279] and following.
21 Lallubhai Jogibhai Patel v Union of India AIR 1981 SC 728 [LNIND 1980 SC 488] [LNIND 1980 SC 488] [LNIND 1980 SC
488], Lallubhai Jogibhai Patel v Union of India (1981) 2 SCC 427 [LNIND 1980 SC 488] [LNIND 1980 SC 488] [LNIND 1980 SC
488], Lallubhai Jogibhai Patel v Union of India (1981) 2 SCJ 37; Kirit Kumar Chamanlal Kundaliya v Union of India AIR 1981
SC 1621 [LNIND 1981 SC 56] [LNIND 1981 SC 56] [LNIND 1981 SC 56], Kirit Kumar Chamanlal Kundaliya v Union of India
(1981) 2 SCC 436, Kirit Kumar Chamanlal Kundaliya v Union of India [1981] 2 SCR 718.
22 Sarguja Transport Service v State Transport Appellate Tribunal, Gwalior AIR 1987 SC 88 [LNIND 1986 SC 439] [LNIND
1986 SC 439] [LNIND 1986 SC 439], Sarguja Transport Service v State Transport Appellate Tribunal, Gwalior (1987) 1 SCC 5
[LNIND 1986 SC 439] [LNIND 1986 SC 439] [LNIND 1986 SC 439], Sarguja Transport Service v State Transport Appellate
Tribunal, Gwalior (1987) 1 SCJ 128.

WRIT JURISDICTION/[005.230] Alternative legal remedy
[005.230] Alternative legal remedy A high court does not ordinarily issue a writ1 when an alternative
efficacious remedy is available. High courts do not decide disputes for which remedies under the general law
are available, as ordinary remedies must not be replaced the writ jurisdiction of such courts2.
Writ jurisdiction of high courts is not meant to circumvent statutory procedures. Therefore, ordinarily,
availability of an adequate and efficacious alternative remedy is a ground for a high court to refuse to
exercise its writ jurisdiction3. Normally, before a writ petition is entertained by a high court, it must insist that
the party aggrieved by the order of a quasijudicial tribunal have recourse to the statutory authorities that have
power to give relief4. The courts have themselves evolved this rule as a kind of self imposed restriction on
their writ jurisdiction5.
The rule of exhaustion of remedies is a rule of policy, convenience and discretion rather than a rule of law6.
327 136
Page
Although the high courts do apply the rule of exhaustion of the statutory remedy before issuing a writ, the
rule is not rigid and it is primarily a matter of discretion of the court7.
To question an election to an office or a body, the statutory procedure is through an election petition and not
through a writ8. The Court will not ordinarily interfere where there is an appropriate or equally efficacious
remedy available, particularly in relation to election disputes9.
The Motor Vehicles Act 1988 contains a complete code for regulating issue of permits and provides
remedies for redressal of grievances and correction of errors. Therefore, a person aggrieved by the refusal of
a permit must take recourse to the remedies provided under the Act and not to a writ petition10. Similarly, for
adjudication of labour disputes, recourse must be had to the machinery provided under the Industrial
Disputes Act 194711.
An income tax assessee must take recourse to the machinery provided by the Income tax Act 1961 in case
he feels aggrieved by an action of the income tax authorities. The Income tax Act 1961 provides a complete
machinery for obtaining relief against improper action taken by the departmental authorities12.
When a statutory forum or tribunal is specially created by a statute for redressal of specified grievances of
persons in certain matters, the high court must not normally permit such persons to ventilate their specified
grievances before it by entertaining writ petitions13.
Some circumstances when a high court may entertain a writ petition without relegating the petitioner to an
alternative remedy are as follows:
(1) where the writ petitioner has lost his remedy for no fault of his 14 own.
(2) where the concerned authority has acted wholly without jurisdiction15. When there is a
complete lack of jurisdiction in the officer or authority to take the impugned decision or action,
the order made by the concerned authority is a nullity and so it can be challenged through a
writ petition without taking recourse to the available alternative remedy16. When a taxing
authority acts despite the absence of basic jurisdictional facts, the assessee does not have to
exhaust the available statutory remedy before seeking a writ and the high court can stay the
assessment proceedings at its inception17.
(3) where there is a failure of natural justice18. When an authority assesses the quantum of
compensation for the land acquired without giving hearing19 to the acquiring body, the award
would be regarded as a nullity. It could therefore be challenged through a writ petition without
exhausting the alternative remedy by way of appeal because if the rules of natural justice were
violated at the first stage, the right of appeal could not be true remedy to correct the error20.
(4) where the tribunal has acted under an ultra vires law21 or without law22.
(5) where the alternative remedy is not as efficacious, convenient or speedy as the remedy
through the writ petition23. In tax assessment cases, where an appeal from the assessing
officer can be taken to a higher authority only after depositing the tax assessed, the remedy
provided is onerous and burdensome and so the assessee can invoke the aid of writ
jurisdiction24. It is not palatable to our jurisprudence to turn down the prayer for a writ on the
negative plea of alternative remedy since the root principle of law married to justice, is ubi jus
ibi remedium25.
(6) where the existence of an adequate alternative legal remedy is not a bar to the invocation of
the high court's jurisdiction as in case of infringement of a fundamental right26.
(7) where there is challenge to the vires of the Act or the rules made under it27.
(8) where the circumstances of the case are such that the writ petition may be allowed even
though there may be an alternative remedy available.
A writ petition that seeks interpretation of intricate questions of law or of constitutional provisions or one that
raises an issue of jurisdiction is directly maintainable in the high court28.
328 137
Page
v TR Varma (1958) SCJ 142, Union of India v TR Varma (1958) All LJ 126.
3 APDDC Staff & Workers Union v Govt of AP AIR 2000 AP 70; Swetambar Stahanakwasi Jain Samiti v The Alleged
Committee of Management Sri RJI College, Agra 1996 3 JT 21; Assistant Collector of Central Excise, Chandan Nagar, West
Bengal v Dunlop India Ltd AIR 1985 SC 330 [LNIND 1984 SC 367] [LNIND 1984 SC 367] [LNIND 1984 SC 367], Assistant
Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India Ltd (1985) 1 SCC 260 [LNIND 1984 SC 367] [LNIND
1984 SC 367] [LNIND 1984 SC 367], Assistant Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India Ltd
(1985) 1 Andh LT 257; Titaghur Paper Mills Co Ltd v State of Orissa AIR 1983 SC 603 [LNIND 1983 SC 111] [LNIND 1983 SC
111] [LNIND 1983 SC 111], Titaghur Paper Mills Co Ltd v State of Orissa (1983) 2 SCC 433 [LNIND 1983 SC 111] [LNIND
1983 SC 111] [LNIND 1983 SC 111], Titaghur Paper Mills Co Ltd v State of Orissa (1983) 2 SCJ 47.
4 Sri Ramdas Motor Transport Ltd v Tadi Adhinarayana Reddy AIR 1997 SC 2189 [LNIND 1997 SC 763] [LNIND 1997 SC 763]
[LNIND 1997 SC 763], Sri Ramdas Motor Transport Ltd v Tadi Adhinarayana Reddy (1997) 5 SCC 446 [LNIND 1997 SC 763]
[LNIND 1997 SC 763] [LNIND 1997 SC 763], Sri Ramdas Motor Transport Ltd v Tadi Adhinarayana Reddy (1997) 2 SCJ 299;
Uttar Pradesh Jal Nigam v Nareshwar Sahai Mathur 1995 I SCC 21; West Bengal v North Adyal Coal Co 1971 1 SCC 309,
310.
5 See generally [100]COURTS.
6 AV Venkateswaran, Collector of Customs, Bombay v Ramchand Sobhraj Wadhwani AIR 1961 SC 1506 [LNIND 1961 SC
151] [LNIND 1961 SC 151] [LNIND 1961 SC 151], AV Venkateswaran, Collector of Customs, Bombay v Ramchand Sobhraj
Wadhwani [1961] 1 SCR 753, AV Venkateswaran, Collector of Customs, Bombay v Ramchand Sobhraj Wadhwani (1961) 2
SCA 622 [LNIND 1961 SC 151] [LNIND 1961 SC 151] [LNIND 1961 SC 151].
7 State of Uttar Pradesh v Mohd Nooh AIR 1958 SC 86 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99], State
of Uttar Pradesh v Mohd Nooh (1958) SCJ 242 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99], State of Uttar
Pradesh v Mohd Nooh [1958] SCR 595 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND 1957 SC 99].
8 Prafulla Chandra Sarma v Oil India Ltd, Duliajan AIR 1971 Assam 9, Prafulla Chandra Sarma v Oil India Ltd, Duliajan (1971)
Lab IC 155, Prafulla Chandra Sarma v Oil India Ltd, Duliajan (1970) Assam LR 211; Bar Council of Delhi v Surijeet Singh AIR
1980 SC 1612 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC 224]; Ravjibhai Bhikabhai Patel v Chief Officer,
Bilimora Nagar Palika, Bilimora AIR 1982 Guj 163 [LNIND 1981 GUJ 24] [LNIND 1981 GUJ 24] [LNIND 1981 GUJ 24].
See however D L Suresh Babu v Instiute of Chartered Accountants of India AIR 1983 Kant 43 [LNIND 1982 KANT 132] [LNIND
1982 KANT 132] [LNIND 1982 KANT 132], D L Suresh Babu v Instiute of Chartered Accountants of India (1982) ILR 2 Kant
1076 (where the high court interfered because the nomination paper was unduly rejected and the election petition could be filed
only after the election was over); Navuba Gokalji Chauda, Mehsana v Returning Officer AIR 1982 Guj 281 [LNIND 1982 GUJ
94] [LNIND 1982 GUJ 94] [LNIND 1982 GUJ 94], Navuba Gokalji Chauda, Mehsana v Returning Officer (1982) Guj LH 617,
Navuba Gokalji Chauda, Mehsana v Returning Officer (1982) 23 Guj LR 397 (when an election petition is not available to cover
a specific question arising out of a municipal election, a writ petition would be maintainable).
9 Umesh Shivappa Ambi v Angadi Shekara Basappa AIR 1999 SC 1566, Umesh Shivappa Ambi v Angadi Shekara Basappa
(1998) 4 SCC 529, Umesh Shivappa Ambi v Angadi Shekara Basappa (1998) 5 JT 347. See also State of Uttar Pradesh v
Labh Chand AIR 1994 SC 754 [LNIND 1993 SC 109] [LNIND 1993 SC 109] [LNIND 1993 SC 109], at 761, State of Uttar
Pradesh v Labh Chand (1994) 2 SCC 49, State of Uttar Pradesh v Labh Chand [1993] 1 SCR 878 [LNIND 1993 SC 109]
[LNIND 1993 SC 109] [LNIND 1993 SC 109], 759 (the government passed an order compulsorily retiring the petitioner; he filed
a writ petition to challenge the order but the writ petition was dismissed by the high court on the ground that there was an
alternative remedy available to him before the Uttar Pradesh Service Tribunal which was the highest forum created by law to
give full, complete and expeditious relief to public servants in service matters; the petitioner could not invoke the extraordinary
jurisdiction the Constitution of India art 226 for redressal of his grievances, by passing the special forum created specifically by
law for redressal of such grievances efficaciously and adequately); Than Singh Nathmal v Suprintendent of Taxes, Dhubri AIR
1964 SC 1419 [LNIND 1964 SC 26] [LNIND 1964 SC 26] [LNIND 1964 SC 26], Than Singh Nathmal v Suprintendent of Taxes,
Dhubri [1964] 6 SCR 654 [LNIND 1964 SC 26] [LNIND 1964 SC 26] [LNIND 1964 SC 26], Than Singh Nathmal v Suprintendent
of Taxes, Dhubri (1964) 15 STC 468(the petitioner challenged through a writ petition the decision made by the Commissioner of
Sales Tax; under the relevant law, a reference of questions of law could be made by the Commissioner to the high court; the
petitioner did not resort to this remedy but moved the writ jurisdiction of the high court; the Supreme Court rejected the writ
petition saying that the high court normally will not entertain a petition under the Constitution of India art 226 and allow the
machinery created under the statute to be bypassed); All India Lawyers Forum for Civil Liberties v Union of India AIR 2001 Del
380 [LNIND 2001 DEL 371] [LNIND 2001 DEL 371] [LNIND 2001 DEL 371], All India Lawyers Forum for Civil Liberties v Union
of India (2001) 90 Del LT 805, All India Lawyers Forum for Civil Liberties v Union of India (2001) 59 Del RJ 281.
10 G Veerappa Pillai, Proprietor, Sathi Vilas Bus Service, Porayar, Tanjore District, Madras v Raman and Raman Ltd,
Kumbakonam, Tanjore District AIR 1952 SC 192 [LNIND 1952 SC 18] [LNIND 1952 SC 18] [LNIND 1952 SC 18], G Veerappa
Pillai, Proprietor, Sathi Vilas Bus Service, Porayar, Tanjore District, Madras v Raman and Raman Ltd, Kumbakonam, Tanjore
District [1952] SCR 583 [LNIND 1952 SC 18] [LNIND 1952 SC 18] [LNIND 1952 SC 18], G Veerappa Pillai, Proprietor, Sathi
Vilas Bus Service, Porayar, Tanjore District, Madras v Raman and Raman Ltd, Kumbakonam, Tanjore District (1952) SCJ 261
11 Basant Kumar Sarkar v The Eagle Rolling Mills Ltd AIR 1964 SC 1260 [LNIND 1964 SC 52] [LNIND 1964 SC 52] [LNIND
1964 SC 52], Basant Kumar Sarkar v The Eagle Rolling Mills Ltd [1964] 6 SCR 913 [LNIND 1964 SC 52] [LNIND 1964 SC 52]
329 138
Page
[LNIND 1964 SC 52], Basant Kumar Sarkar v The Eagle Rolling Mills Ltd (1964) 2 SCJ 566; Prafulla Chandra Sarma v Oil India
Ltd, Duliajan AIR 1971 Assam 9, Prafulla Chandra Sarma v Oil India Ltd, Duliajan (1971) Lab IC 155, Prafulla Chandra Sarma v
Oil India Ltd, Duliajan (1970) Assam LR 211.
12 Champalal Binani v Comr of Income Tax AIR 1970 SC 645, Champalal Binani v Comr of Income Tax (1970) 76 ITR 692;
India Trade Promotion Organisation v Deputy Assessor & Collector, Municipal Corpn of Delhi AIR 1997 Del 74, India Trade
Promotion Organisation v Deputy Assessor & Collector, Municipal Corpn of Delhi (1996) 63 Del LT 614, India Trade Promotion
Organisation v Deputy Assessor & Collector, Municipal Corpn of Delhi (1996) 38 Del RJ 474(the petitioner was assessed to
property tax by the Delhi Municipal Corporation; the petitioner challenged it as totally arbitrary and unwarranted through a writ
petition under the Constitution of India art 226; the high court rejected the writ petition on the ground that the Delhi Municipal
Corporation Act 1957 is a complete code in itself; it provides for an appeal against the assessment and levy of house tax to the
district judge; the Act thus, provides for a machinery for redressal of grievances of a person who feels aggrieved on account of
levy or assessment of any tax under the concerned Act).
13 Secretary, Minor Irrigation & Rural Engineering Services, Uttar Pradesh v Sahngoo Ram Arya, (2002) 5 SCC 521 [LNIND
15 L Kashi Nath v Collector, Central Excise, Allahabad AIR 1972 All 16, L Kashi Nath v Collector, Central Excise, Allahabad
(1971) All WR (HC) 612; Bawa Gopal Das Bedi & Sons v Union of India AIR 1982 Pat 152, Bawa Gopal Das Bedi & Sons v
Union of India (1982) BBCJ (HC) 371, Bawa Gopal Das Bedi & Sons v Union of India (1982) ECR 229 P (Patna).
16 Whirlpool Corporation v Registrar of Trade Marks, Mumbai AIR 1999 SC 22 at 27, Whirlpool Corporation v Registrar of
Trade Marks, Mumbai (1998) 8 SCC 1 [LNIND 1998 SC 970] [LNIND 1998 SC 970] [LNIND 1998 SC 970], Whirlpool
Corporation v Registrar of Trade Marks, Mumbai (1998) 3 SCJ 656(the Registrar of Trade Marks suo motu gave notice to the
petitioner to show cause as to why the registration of its trade mark be not cancelled; the petitioner filed a writ petition
challenging the notice on the ground that the Registrar had no power to issue any such notice; the high court dismissed the
petition arguing that the petitioner had not exhausted the remedy provided by the Trade and Merchandise Marks Act 1957; on
appeal, the Supreme Court reversed the high court saying that the court was not justified in dismissing the writ petition at the
initial stage without examining the contention that the show cause notice issued by the Registrar was wholly without jurisdiction;
the Supreme Court also quashed the notice as the Registrar could not have issued it to the writ petitioner; the Supreme Court
stated that the high court can entertain a writ petition in spite of the alternative statutory remedies in a case where the authority
against whom the writ is filed is shown to have had purported to usurp jurisdiction without any legal foundation); Kuntesh Gupta
v Management of Hindu Kanya Mahavidyalya, Sitapur, Uttar Pradesh AIR 1987 SC 2186, Kuntesh Gupta v Management of
Hindu Kanya Mahavidyalya, Sitapur, Uttar Pradesh (1987) 4 JT 670, Kuntesh Gupta v Management of Hindu Kanya
Mahavidyalya, Sitapur, Uttar Pradesh (1987) 13 All LR 680; Khaitan (India) Ltd v Union of India AIR 2000 Cal 1 [LNIND 1999
CAL 208] [LNIND 1999 CAL 208] [LNIND 1999 CAL 208]; Sanjaya Sales Corporation v National Mineral Development
Corporation Ltd AIR 1993 AP 62 [LNIND 1991 AP 142] [LNIND 1991 AP 142] [LNIND 1991 AP 142], Sanjaya Sales Corporation
v National Mineral Development Corporation Ltd (1991) 2 Andh LT 255, Sanjaya Sales Corporation v National Mineral
Development Corporation Ltd (1992) 57 ELT 579; ITC Ltd v Union of India AIR 1989 Cal 294 [LNIND 1987 CAL 318] [LNIND
1987 CAL 318] [LNIND 1987 CAL 318], ITC Ltd v Union of India (1988) 1 Cal LJ 109, ITC Ltd v Union of India (1988) 92 Cal
WN 1035.
17 LV Veeri Chettiar v Sales Tax Officer, Bombay AIR 1971 Mad 155 [LNIND 1970 MAD 44] [LNIND 1970 MAD 44] [LNIND
1970 MAD 44], LV Veeri Chettiar v Sales Tax Officer, Bombay 83 Mad LW 667, LV Veeri Chettiar v Sales Tax Officer, Bombay
26 STC 579; State of Uttar Pradesh P v Mohammad Nooh AIR 1958 SC 86 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND
1957 SC 99], State of Uttar Pradesh P v Mohammad Nooh [1958] SCR 595 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND
1957 SC 99], State of Uttar Pradesh P v Mohammad Nooh (1958) SCJ 242 [LNIND 1957 SC 99] [LNIND 1957 SC 99] [LNIND
1957 SC 99] (if an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of jurisdiction or
manifestly conducts the proceedings before it in a manner which is contrary to the rules of natural justice and all accepted rules
of procedure and which offends the superior court's sense of fair play the superior court may exercise its power to issue the
prerogative writ of certiorari to correct the error of the court or tribunal of first instance even if an appeal to another inferior court
or tribunal was available and recourse was not had to it).
18 Titaghur Paper Mills Co Ltd v State of Orissa AIR 1983 SC 603 [LNIND 1983 SC 111] [LNIND 1983 SC 111] [LNIND 1983
SC 111], Titaghur Paper Mills Co Ltd v State of Orissa (1983) 2 SCC 433 [LNIND 1983 SC 111] [LNIND 1983 SC 111] [LNIND
1983 SC 111], Titaghur Paper Mills Co Ltd v State of Orissa (1983) 2 SCJ 47; Tata Engineering and Locomotive Co Ltd v
Assistant Comr of Commercial Taxes AIR 1967 SC 1401 [LNIND 1967 SC 48] [LNIND 1967 SC 48] [LNIND 1967 SC 48], Tata
Engineering and Locomotive Co Ltd v Assistant Comr of Commercial Taxes [1967] 2 SCR 751 [LNIND 1967 SC 48] [LNIND
1967 SC 48] [LNIND 1967 SC 48], Tata Engineering and Locomotive Co Ltd v Assistant Comr of Commercial Taxes (1967) 19
STC 520; V Vellaswamy v Inspector General of Police, Tamil Nadu, Madras AIR 1982 SC 82, V Vellaswamy v Inspector
General of Police, Tamil Nadu, Madras (1981) 4 SCC 247, V Vellaswamy v Inspector General of Police, Tamil Nadu, Madras
(1981) SCC Lab 598; State of Uttar Pradesh v Indian Hume Pipe Co Ltd AIR 1977 SC 1132 [LNIND 1977 SC 115] [LNIND
1977 SC 115] [LNIND 1977 SC 115], State of Uttar Pradesh v Indian Hume Pipe Co Ltd (1977) 2 SCC 724 [LNIND 1977 SC
115] [LNIND 1977 SC 115] [LNIND 1977 SC 115], State of Uttar Pradesh v Indian Hume Pipe Co Ltd [1977] 3 SCR 120 [LNIND
1977 SC 115] [LNIND 1977 SC 115] [LNIND 1977 SC 115]; Babu Ram Prakash Chandra Maheshwari v Interim Zila Parishad
AIR 1969 SC 566 [LNIND 1968 SC 208] [LNIND 1968 SC 208] [LNIND 1968 SC 208]; Rajan Ramnath Patil v State of
Maharashtra AIR 2001 Bom 361 [LNIND 2001 BOM 162] [LNIND 2001 BOM 162] [LNIND 2001 BOM 162], Rajan Ramnath
Patil v State of Maharashtra (2001) 4 Bom CR 522 [LNIND 2001 BOM 162] [LNIND 2001 BOM 162] [LNIND 2001 BOM 162],
Rajan Ramnath Patil v State of Maharashtra (2001) 2 Bom LR 1002 [LNIND 2001 BOM 162] [LNIND 2001 BOM 162] [LNIND
2001 BOM 162]; Sushila Chand v State Transport Authority, Orissa AIR 1999 Ori 1 [LNIND 1998 ORI 89] [LNIND 1998 ORI 89]
330 139
Page
[LNIND 1998 ORI 89], Sushila Chand v State Transport Authority, Orissa (1999) 87 Cut LT 6; TR Ramaiah v Deputy Comr,
Chitradurga District AIR 1975 Kant 77 [LNIND 1974 KANT 87] [LNIND 1974 KANT 87] [LNIND 1974 KANT 87], TR Ramaiah v
Deputy Comr, Chitradurga District (1974) 2 Kant LJ 305, TR Ramaiah v Deputy Comr, Chitradurga District (1974) ILR Kant 711;
Orient Paper Mills Ltd v Deputy Collector, Central Excise AIR 1971 ori 25.
20 Yeshwant Gajanan Joshi v Hindustan Petroleum Corpn Ltd AIR 1988 Bom 408 [LNIND 1988 BOM 97] [LNIND 1988 BOM
97] [LNIND 1988 BOM 97], Yeshwant Gajanan Joshi v Hindustan Petroleum Corpn Ltd (1988) 19 Reports 577, Yeshwant
Gajanan Joshi v Hindustan Petroleum Corpn Ltd (1988) 2 Bom CR 494 [LNIND 1988 BOM 97] [LNIND 1988 BOM 97] [LNIND
1988 BOM 97].
21 East Bulliaree/Kendwadih Colliery Co Pvt Ltd v Union of India AIR 1983 Del 70 [LNIND 1982 DEL 206] [LNIND 1982 DEL
206] [LNIND 1982 DEL 206].
22 New Manek Chowk Spinning and Weaving Mills Co Ltd v Municipal Corpn of the City of Ahmedabad AIR 1967 SC 1801
[LNIND 1967 SC 40] [LNIND 1967 SC 40] [LNIND 1967 SC 40], New Manek Chowk Spinning and Weaving Mills Co Ltd v
Municipal Corpn of the City of Ahmedabad [1967] 2 SCR 679 [LNIND 1967 SC 40] [LNIND 1967 SC 40] [LNIND 1967 SC 40];
JK Manufacturers Ltd v Sales Tax Officer, Sector II, Kanpur AIR 1970 All 362 [LNIND 1969 ALL 59] [LNIND 1969 ALL 59]
[LNIND 1969 ALL 59], JK Manufacturers Ltd v Sales Tax Officer, Sector II, Kanpur FB 26 STC 310.
23 Ram and Shyam Co v State of Haryana AIR 1985 SC 1147 [LNIND 1985 SC 188] [LNIND 1985 SC 188] [LNIND 1985 SC
188].
24 Shyam Kishore v Municipal Corpn of Delhi AIR 1992 SC 2279, Shyam Kishore v Municipal Corpn of Delhi (1993) 1 SCC 22,
Shyam Kishore v Municipal Corpn of Delhi (1992) 2 Scale 403; Srikant Kashinath Jituri v Corpn of the city of Belgaum AIR
1995 SC 288 [LNIND 1994 SC 1445] [LNIND 1994 SC 1445] [LNIND 1994 SC 1445], Srikant Kashinath Jituri v Corpn of the city
of Belgaum (1994) 6 SCC 572 [LNIND 1994 SC 1445] [LNIND 1994 SC 1445] [LNIND 1994 SC 1445] (assessment of property
tax was sought to be challenged on several grounds; under the relevant statute, the assessee was required to deposit the entire
tax assessed before he could file an appeal against the assessment and no authority was empowered to relax that condition,
either wholly or partially, whatever be the circumstances; the statutory remedy was characterised as not being an adequate or
efficacious remedy and so, the writ petition was held maintainable); Indian Oil Corporation Ltd v Union of India AIR 1982 Goa
26 (a municipal council levied octroi duty on petroleum products; the levy was sought to be challenged through a writ petition;
apart from this, petroleum products received within the municipal area were exported outside the municipal area; under the
relevant law, an appeal could be filed with the standing committee of the municipality but only after depositing the entire amount
of the levy; a writ petition challenging the levy was held maintainable because the alternative remedy was not adequate); D R
Aggarwal v New Delhi Municipal Committee AIR 1999 Del 67 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690] [LNIND 1998 DEL
690], D R Aggarwal v New Delhi Municipal Committee (1998) 47 DRJ 553 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690]
[LNIND 1998 DEL 690], D R Aggarwal v New Delhi Municipal Committee (1999) 2 ESC 1116 [LNIND 1998 DEL 690] [LNIND
1998 DEL 690] [LNIND 1998 DEL 690].
25 JM Baxi & Co v Comr of Customs 2001 9 SCC 275 (the Supreme Court bypassed the rule of exhaustion of remedies
because, in the instant case, recourse to the alternative remedy was onerous as it involved depositing a huge sum of money
and the demand was time barred by limitation; the Supreme Court felt that this was a matter where interference by the high
court n merits was necessary despite alternative remedy being available); Shiv Shankar Dal Mills v State of Haryana AIR 1980
SC 1037 [LNIND 1979 SC 444] [LNIND 1979 SC 444] [LNIND 1979 SC 444], Shiv Shankar Dal Mills v State of Haryana (1980)
2 SCC 437 [LNIND 1979 SC 267] [LNIND 1979 SC 267] [LNIND 1979 SC 267], Shiv Shankar Dal Mills v State of Haryana
[1980] 1 SCR 1170 [LNIND 1979 SC 267] [LNIND 1979 SC 267] [LNIND 1979 SC 267]; Hy Lay Poultry Farms v State of
Haryana AIR 1977 SC 685, Hy Lay Poultry Farms v State of Haryana (1976) 4 SCC 87, Hy Lay Poultry Farms v State of
Haryana (1977) UPTC 574; Anil Kumar Panda v State of West Bengal AIR 1997 Cal 128.
26 Himmatlal Harilal Mehta v State of Madhya Pradesh AIR 1954 SC 403 [LNIND 1954 SC 44] [LNIND 1954 SC 44] [LNIND
1954 SC 44], Himmatlal Harilal Mehta v State of Madhya Pradesh [1954] SCR 1122 [LNIND 1954 SC 44] [LNIND 1954 SC 44]
[LNIND 1954 SC 44], Himmatlal Harilal Mehta v State of Madhya Pradesh (1954) SCJ 445 [LNIND 1954 SC 44] [LNIND 1954
SC 44] [LNIND 1954 SC 44]; Whirlpool Corporation v Registrar of Trade Marks, Mumbai AIR 1999 SC 22 at 27, Whirlpool
Corporation v Registrar of Trade Marks, Mumbai (1998) 8 SCC 1 [LNIND 1998 SC 970] [LNIND 1998 SC 970] [LNIND 1998 SC
970], Whirlpool Corporation v Registrar of Trade Marks, Mumbai (1998) 3 SCJ 656; Lal Babu Prasad v Bihar AIR 1989 Pat 68,
Lal Babu Prasad v Bihar (1989) BBCJ (HC) 40, Lal Babu Prasad v Bihar (1989) Pat LJR (HC) 125; D R Aggarwal v New Delhi
Municipal Committee AIR 1999 Del 67 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690] [LNIND 1998 DEL 690], D R Aggarwal v
New Delhi Municipal Committee (1998) 47 DRJ 553 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690] [LNIND 1998 DEL 690], D
R Aggarwal v New Delhi Municipal Committee (1999) 2 ESC 1116 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690] [LNIND 1998
DEL 690].
27 Assistant Collector of Central Excise, Chandan Nagar, West Bengal v Dunlop India Ltd AIR 1985 SC 330 [LNIND 1984 SC
367] [LNIND 1984 SC 367] [LNIND 1984 SC 367], Assistant Collector of Central Excise, Chandan Nagar, West Bengal v
Dunlop India Ltd (1985) 1 SCC 260 [LNIND 1984 SC 367] [LNIND 1984 SC 367] [LNIND 1984 SC 367], Assistant Collector of
Central Excise, Chandan Nagar, West Bengal v Dunlop India Ltd (1985) 1 Andh LT 257(it is only where statutory remedies are
entirely ill suited to meet the demands of extraordinary situations, as for instance, where the very vires of the statute is in
question or where private or public wrongs are so inextricably mixed up and the prevention of public injury and the vindication of
public justice require it that recourse may be had to the Constitution of India art 226); Union of India v Hindustan Aluminium
331 140
Page
Corpn Ltd AIR 1983 Cal 307 [LNIND 1982 CAL 303] [LNIND 1982 CAL 303] [LNIND 1982 CAL 303], Union of India v Hindustan
Aluminium Corpn Ltd (1983) 2 Cal LJ 93 [LNIND 1982 CAL 303] [LNIND 1982 CAL 303] [LNIND 1982 CAL 303], Union of India
v Hindustan Aluminium Corpn Ltd (1983) 87 Cal WN 450(a writ petition challenging the vires of an order fixing sale and
retention prices o aluminium issued under the Essential Commodities Act 1955 was held maintainable despite a clause in the
impugned order providing for an appeal to the Central Government since:(1) the government could not decide the question of
constitutionality of the order; and (2) the very authority which had passed the order could not constitute itself into an appellate
authority against such an order).
28 Tata Engineering and Locomotive Co Ltd v Assistant Comr of Commercial Taxes AIR 1967 SC 1401 [LNIND 1967 SC 48]
[LNIND 1967 SC 48] [LNIND 1967 SC 48], Tata Engineering and Locomotive Co Ltd v Assistant Comr of Commercial Taxes
[1967] 2 SCR 751 [LNIND 1967 SC 48] [LNIND 1967 SC 48] [LNIND 1967 SC 48], Tata Engineering and Locomotive Co Ltd v
Assistant Comr of Commercial Taxes (1967) 19 STC 520; Modern Syntax (I) Ltd v Debts Recovery Tribunal, Jaipur AIR 2001
Raj 170, Modern Syntax (I) Ltd v Debts Recovery Tribunal, Jaipur (2001) 1 Raj LR 476, Modern Syntax (I) Ltd v Debts
Recovery Tribunal, Jaipur (2001) 2 Raj LW 1140; New Delhi Holy Family Hospital Society v Delhi Municipality AIR 1984 Del 84
[LNIND 1983 DEL 152] [LNIND 1983 DEL 152] [LNIND 1983 DEL 152].

WRIT JURISDICTION/[005.231] Locus standi
[005.231] Locus standi A person can file a writ petition before a high court only if he has locus standi to do
so1. This is because the locus standi to invoke the aid of a high court's writ jurisdiction is based on the
existence of a right in favour of the person invoking the jurisdiction2.
The matter as to who may apply for a writ lies with the court. The narrowest view may be to hold that only a
person who is directly injured or affected by the administrative action in question may challenge it through a
writ. Thus, the traditional rule in regard to locus standi is that judicial redress is available only to a person
who has suffered a legal injury by reason of violation of his legal right or legally protected interest by the
impugned action of the state or a public authority or any other person or who is likely to suffer a legal injury
by reason of threatened violation of his legal right or legally protected interest by any such action. The basis
of entitlement to judicial redress is personal injury to property, body, mind or reputation arising from violation,
actual or threatened, of the legal right or legally protected interest of the person seeking such redress3.
However, a more liberal approach may be that anyone who has sufficient interest in the subject matter may
file a writ petition to challenge the administrative action in question. It is for the court to decide whether or not
the petitioner has sufficient interest4.
The orthodox rule of interpretation of the doctrine of locus standi has undergone a sea change with the
development of constitutional law in India and the constitutional courts have been adopting a liberal
approach in dealing with the cases or dislodging the claim of a litigant merely on hyper technical grounds5.
Thus, a person not aggrieved may invoke the writ jurisdiction of a high court where the writ prayed for is for
habeas corpus6 or quo warranto7. Similarly, where the petition is in public interest, the writ jurisdiction of a
high court may be successfully invoked. The existence of the legal right of the petitioner, which is alleged to
have been violated, is the foundation for invoking such jurisdiction8.
Though a petitioner must be the one who has a personal or individual right in the subject matter in dispute,
yet this is not a cast iron rule and therefore, a person who has been prejudicially affected by an act or
omission of an authority even though he has no proprietary or fiduciary interest in the subject matter may
invoke the aid of the writ jurisdiction of a high court. Even a stranger to the proceedings before an authority
but having a substantial and genuine interest in the subject matter in dispute, may file a writ petition9.
Therefore, the right to initiate proceedings cannot be whittled down, circumscribed or fettered by putting it
into a straight jacket formula of locus standi, unknown to criminal jurisprudence, save and except specific
statutory exception10.
Courts may enforce the performance of a statutory duty by public bodies through a writ as an obligation to
ratepayers who have a legal right to demand compliance by a local authority11.
332 141
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The courts encourage competition in trade and business with a view a benefit the consumers and thus,
abstain from issuing writs12 that might curb the same13.
1 Prasar Bharati Broadcasting Corpn of India v Debyajoti Bose AIR 2000 Cal 43 [LNIND 1999 CAL 5] [LNIND 1999 CAL 5]
[LNIND 1999 CAL 5], Prasar Bharati Broadcasting Corpn of India v Debyajoti Bose (1999) 1 Cal LJ 438 [LNIND 1999 CAL 5]
[LNIND 1999 CAL 5] [LNIND 1999 CAL 5], Prasar Bharati Broadcasting Corpn of India v Debyajoti Bose (1999) 2 Cal LT 183;
The Janata Dal v HS Chowdhary AIR 1993 SC 892 [LNIND 1991 SC 414] [LNIND 1991 SC 414] [LNIND 1991 SC 414], The
Janata Dal v HS Chowdhary (1992) 4 SCC 305 [LNIND 1991 SC 414] [LNIND 1991 SC 414] [LNIND 1991 SC 414], The Janata
Dal v HS Chowdhary (1992) 5 JT 213 [LNIND 1991 SC 414] [LNIND 1991 SC 414] [LNIND 1991 SC 414] (the requirement of
locus standi of a party to a litigation is mandatory because the legal capacity of the party to any litigation, whether in private or
public action, in relation to any specific remedy sought for has to be primarily ascertained at the threshold).
2 A lawyer in discharge of his professional obligations is not obliged to file a writ petition in his own name on behalf of the
clients. An advocate practices the profession of law but does not substitute himself for his client: Vinoy Kumar v State of Uttar
Pradesh AIR 2001 SC 1739 [LNIND 2001 SC 968] [LNIND 2001 SC 968] [LNIND 2001 SC 968], Vinoy Kumar v State of Uttar
Pradesh (2001) 4 SCC 734 [LNIND 2001 SC 968] [LNIND 2001 SC 968] [LNIND 2001 SC 968], Vinoy Kumar v State of Uttar
Pradesh (2001) 4 JT 506.
3 Ordinarily a person may approach a high court under the Constitution of India art 226, to enforce his legal right or when he
has sufficient interest in the subject matter. Until the petitioner shows that his legal rights are adversely affected or that breach
is likely to be committed, he is not entitled to file the petition: S P Gupta v President of India AIR 1982 SC 149, S P Gupta v
President of India (1981) Supp SCC 87, S P Gupta v President of India [1982] 2 SCR 365; Mohd Ibrahim Khan v State of
Madhya Pradesh AIR 1980 SC 517 [LNIND 1979 SC 384] [LNIND 1979 SC 384] [LNIND 1979 SC 384], Mohd Ibrahim Khan v
State of Madhya Pradesh (1980) 4 SCC 458, Mohd Ibrahim Khan v State of Madhya Pradesh [1980] 1 SCR 792 [LNIND 1979
SC 384] [LNIND 1979 SC 384] [LNIND 1979 SC 384]; Bennett Coleman Co v Union of India AIR 1973 SC 106 [LNIND 1972
SC 514] [LNIND 1972 SC 514] [LNIND 1972 SC 514], Bennett Coleman Co v Union of India (1972) 2 SCC 788 [LNIND 1972
SC 514] [LNIND 1972 SC 514] [LNIND 1972 SC 514], Bennett Coleman Co v Union of India [1973] 2 SCR 757 [LNIND 1972 SC
514] [LNIND 1972 SC 514] [LNIND 1972 SC 514]; Nagar Rice and Flour Mills v N Teekappa Gowda & Bros AIR 1971 SC 246
[LNIND 1970 SC 85] [LNIND 1970 SC 85] [LNIND 1970 SC 85], Nagar Rice and Flour Mills v N Teekappa Gowda & Bros
(1970) 1 SCC 575 [LNIND 1970 SC 85] [LNIND 1970 SC 85] [LNIND 1970 SC 85], Nagar Rice and Flour Mills v N Teekappa
Gowda & Bros [1970] 3 SCR 846 [LNIND 1970 SC 85] [LNIND 1970 SC 85] [LNIND 1970 SC 85]; Maganbhai Ishwarbhai Patel
v Union of India AIR 1969 SC 783 [LNIND 1969 SC 6] [LNIND 1969 SC 6] [LNIND 1969 SC 6], Maganbhai Ishwarbhai Patel v
Union of India (1970) 3 SCC 400 [LNIND 1969 SC 6] [LNIND 1969 SC 6] [LNIND 1969 SC 6], Maganbhai Ishwarbhai Patel v
Union of India [1969] 3 SCR 254 [LNIND 1969 SC 6] [LNIND 1969 SC 6] [LNIND 1969 SC 6]; Calcutta Gas Co (Proprietory)
Ltd v State of West Bengal AIR 1962 SC 1044 [LNIND 1962 SC 477] [LNIND 1962 SC 477] [LNIND 1962 SC 477], Calcutta
Gas Co (Proprietory) Ltd v State of West Bengal [1962] Supp 3 SCR 1; Town Improvement Trust v Sahaji Rao AIR 1978 MP
218 [LNIND 1977 MP 39] [LNIND 1977 MP 39] [LNIND 1977 MP 39], Town Improvement Trust v Sahaji Rao (1978) MP LJ 562.
4 Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617 at 641,
Inland Revenue Commissioners v National Federation of Self-Employed and Small Businesses Ltd [1981] 2 All ER 93 at 104
HL,, per Lord Diplock; R v HM Treasury, ex p Smedley [1985] QB 657 at 666, R v HM Treasury, ex p Smedley [1985] 1 All ER
589 at 593, CA; Ex Parte Greenpace v [1994] 4 All ER 329; R v Foreign Secretary exp World Movement Ltd [1995] 1 WLR
388.
5 The writ of certiorari or prohibition can be issued even on the application of strangers if the decision making body lacks
jurisdiction: Gadde Venkateswara Rao v Government of Andhra Pradesh AIR 1966 SC 828 [LNIND 1965 SC 254] [LNIND 1965
SC 254] [LNIND 1965 SC 254], Gadde Venkateswara Rao v Government of Andhra Pradesh [1966] 2 SCR 172 [LNIND 1965
SC 254] [LNIND 1965 SC 254] [LNIND 1965 SC 254]; National Textiles Workers Union v PR Ramakrishnan AIR 1983 SC 75,
National Textiles Workers Union v PR Ramakrishnan [1983] 1 SCR 922, National Textiles Workers Union v PR Ramakrishnan
(1983) 2 Mad LJ (SC) 1 (when a petition for winding up of a company is presented to the court by its contributories, the trade
union representing the workers of the company has locus standi to appear and be heard to support or oppose the winding up
petition); Bhikoba Shankar Dhumal v Mohan Lal Punchand Jathed AIR 1982 SC 865 [LNIND 1982 SC 40] [LNIND 1982 SC 40]
[LNIND 1982 SC 40], Bhikoba Shankar Dhumal v Mohan Lal Punchand Jathed (1982) 1 SCC 645 [LNIND 1982 SC 47] [LNIND
1982 SC 47] [LNIND 1982 SC 47], Bhikoba Shankar Dhumal v Mohan Lal Punchand Jathed (1982) 1 SLR 864 [LNIND 1982 SC
47] [LNIND 1982 SC 47] [LNIND 1982 SC 47] (proceedings under the Maharashtra Agricultural Lands (ceiling on Holdings) Act
1961, against a landholder possessing land in excess of the ceiling, were dropped by the government; those residents in the
village who would have benefited by the distribution of surplus land were held to have standing to challenge governmental
action; the court observed: that any person who is entitled to grant of land under any of the provisions of the Act may question
any order which would have the effect of reducing the extent of total surplus land in any village); PK Poulose v State of Kerala
AIR 1998 Ker 10, PK Poulose v State of Kerala (1997) 2 Ker 821(when the order of a tribunal is not in public interest and when
there are no affected parties to challenge the order of the tribunal, it is open to the government to challenge the tribunal order
under the Constitution of India art 226); Geeta Bajaj v State of Rajasthan AIR 1982 Raj 48, Geeta Bajaj v State of Rajasthan
(1982) Raj LR 67.
7 As to the writ of quo warranto see [005.281].

333 142
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8 Ghulam Qadir v Special Tribunal 2002 1 SCC 33 [LNIND 2001 SC 2216] [LNIND 2001 SC 2216] [LNIND 2001 SC 2216].
9 Town Improvement Trust v Sahaji Rao AIR 1978 MP 218 [LNIND 1977 MP 39] [LNIND 1977 MP 39] [LNIND 1977 MP 39],
Town Improvement Trust v Sahaji Rao (1978) MP LJ 562; Neyvely Lignite Corporation Ltd v Special Tehsildar AIR 1995 SC
1004 [LNIND 1994 SC 970] [LNIND 1994 SC 970] [LNIND 1994 SC 970], Neyvely Lignite Corporation Ltd v Special Tehsildar
(1995) 1 SC 221, Neyvely Lignite Corporation Ltd v Special Tehsildar (1995) 1 JT 281; Uttar Pradesh Awas Evam Vikas
Parishad v Gyan Devi AIR 1995 SC 724 [LNIND 1994 SC 978] [LNIND 1994 SC 978] [LNIND 1994 SC 978], Uttar Pradesh
Awas Evam Vikas Parishad v Gyan Devi (1995) 2 SCC 326 [LNIND 1994 SC 978] [LNIND 1994 SC 978] [LNIND 1994 SC 978],
Uttar Pradesh Awas Evam Vikas Parishad v Gyan Devi (1994) 7 JT 304.
10 Antulay v Ramdas Sriniwas Nayak AIR 1984 SC 718 [LNIND 1984 SC 42] [LNIND 1984 SC 42] [LNIND 1984 SC 42],
Antulay v Ramdas Sriniwas Nayak (1984) 2 SCC 500 [LNIND 1984 SC 42] [LNIND 1984 SC 42] [LNIND 1984 SC 42], Antulay v
Ramdas Sriniwas Nayak (1984) Cr LJ 647 (the misuse of power to issue permits for cement to the chosen few was exposed in
the High Court of Bombay by public spirited persons who had nothing to do with cement permits but nevertheless, were
interested in checking maladministration).
11 K Ranadas Shenoy v Udipi Municipality AIR 1974 SC 2177 [LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC
225], K Ranadas Shenoy v Udipi Municipality (1974) 2 SCC 506 [LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC
225], K Ranadas Shenoy v Udipi Municipality [1975] 1 SCR 680 [LNIND 1974 SC 225] [LNIND 1974 SC 225] [LNIND 1974 SC
225] (a resident was permitted to challenge the municipal resolution approving construction of a cinema in a residential locality
as it would adversely affect the proprietary and other interests of the residents of the locality); Municipal Corpn for the City of
Bombay v Govind Laxman Savant AIR 1949 Bom 229, Municipal Corpn for the City of Bombay v Govind Laxman Savant 51
Bih LR 190 (the law assumes that a member or a ratepayer of a municipality has a specific legal interest which gives him a right
to come to a court to prevent the corporation from acting contrary to law or its own charter); Narendra Nath Chakravarty v
Corporation of Calcutta AIR 1960 Cal 102 [LNIND 1959 CAL 163] [LNIND 1959 CAL 163] [LNIND 1959 CAL 163], Narendra
Nath Chakravarty v Corporation of Calcutta 64 Cal WN 134 (a ratepayer is not a mere stranger as he is directly interested in
the proper application of municipal funds and, as such, is entitled to question its misapplication; thus, where a municipal council,
by resolution violating the Municipal Act, permits erection of a statue and undertakes to maintain it from its funds, a taxpayer
has a right to file a writ petition for quashing the resolution and preventing the municipality from wasting municipal funds); R
Varadarajan v Salem Municipal Council by its Comr, Salem AIR 1973 Mad 55 [LNIND 1971 MAD 18] [LNIND 1971 MAD 18]
[LNIND 1971 MAD 18], R Varadarajan v Salem Municipal Council by its Comr, Salem (1972) 2 Mad LJ 485, R Varadarajan v
Salem Municipal Council by its Comr, Salem 85 Mad LW 705 (the reason for liberalisation of the rule in favour of a taxpayer of
a municipality is that his interest in the application of the money of the municipality is direct and immediate and he has a close
relationship with the municipality).
See also Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India AIR 1981 SC 344, Fertilizer Corporation, Kamgar
Union, (Regd) Sindri v Union of India (1981) 1 SCC 568 [LNIND 1980 SC 455] [LNIND 1980 SC 455] [LNIND 1980 SC 455],
Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India [1981] 2 SCR 52; SL Kapoor v Jagmohan AIR 1981 SC
136 [LNIND 1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v Jagmohan (1980) 4 SCC 379 [LNIND
1980 SC 391] [LNIND 1980 SC 391] [LNIND 1980 SC 391], SL Kapoor v Jagmohan [1981] 1 SCR 746 [LNIND 1980 SC 391]
[LNIND 1980 SC 391] [LNIND 1980 SC 391]; Municipal Council, Ratlam v Vardichand AIR 1980 SC 1622 [LNIND 1980 SC
287] [LNIND 1980 SC 287] [LNIND 1980 SC 287], Municipal Council, Ratlam v Vardichand (1980) 4 SCC 162 [LNIND 1980 SC
287] [LNIND 1980 SC 287] [LNIND 1980 SC 287], Municipal Council, Ratlam v Vardichand (1980) Cr LJ 1075(where the
residents of a locality brought an action against the municipality under the Criminal Procedure Code 1973 s 133, for its failure to
carry out the duty of constructing a drain pipe; the Supreme Court sustained the action and thus the chairman of a statutory
corporation which is superseded by the government was allowed to challenge the government's action); Jwala Prasad v State of
Rajasthan AIR 1973 Raj 187, Jwala Prasad v State of Rajasthan (1973) Cr LR 1630, Jwala Prasad v State of Rajasthan (1972)
Raj LW 415; R Varadarajan v Salem Municipal Council by its Comr, Salem AIR 1973 Mad 55 [LNIND 1971 MAD 18] [LNIND
1971 MAD 18] [LNIND 1971 MAD 18], R Varadarajan v Salem Municipal Council by its Comr, Salem (1972) 2 Mad LJ 485, R
Varadarajan v Salem Municipal Council by its Comr, Salem 85 Mad LW 705 (a member of a municipality can challenge a
resolution passed by the municipality on the ground that it is ultra vires; a taxpayer can file a writ petition against a municipal
Council if it misapplies its funds).
However, there are cases in which a restrictive view has been taken. For example, the high court of Karnataka has ruled that a
mere ratepayer is not entitled to maintain a writ petition against a municipality, unless he is directly and proximately affected by
the impugned action. He must have a personal grievance recognisable by law so as to give him standing to maintain the
petition: S Janab v Corpn of the City of Bangalore AIR 1972 Mys 109; Chikkaveeraypa v Town Municipal Council, Timkur AIR
1974 Kant 6 [LNIND 1973 KANT 158] [LNIND 1973 KANT 158] [LNIND 1973 KANT 158], Chikkaveeraypa v Town Municipal
Council, Timkur (1973) 2 Mys LJ 236.
13 Mithilesh Garg v Union of India AIR 1992 SC 443 [LNIND 1991 SC 620] [LNIND 1991 SC 620] [LNIND 1991 SC 620],
Mithilesh Garg v Union of India (1992) 1 SCC 168 [LNIND 1991 SC 536] [LNIND 1991 SC 536] [LNIND 1991 SC 536], Mithilesh
Garg v Union of India (1991) All LJ 1667 (the proprietor of a licensed cinema theatre has no locus standi to seek certiorari from
the high court to quash the no objection certificate granted by the administration to a trade rival; the grant of no objection did not
deny or deprive the petitioner of any legal right; he has not been subjected to any legal wrong and has suffered no legal
grievance; thus, the issue of certiorari at the petitioner's instance would, on balance, be against public policy as it would
eliminate healthy competition in the business which is so essential to raise commercial morality and it would perpetuate
petitioner's monopoly of cinema business); Jasbhai Motibhai Desai v Roshan Kumar, Haji Bashir Ahmed AIR 1976 SC 578
334 143
Page
[LNIND 1975 SC 532] [LNIND 1975 SC 532] [LNIND 1975 SC 532], Jasbhai Motibhai Desai v Roshan Kumar, Haji Bashir
Ahmed (1976) 1 SCC 671 [LNIND 1975 SC 532] [LNIND 1975 SC 532] [LNIND 1975 SC 532], Jasbhai Motibhai Desai v
Roshan Kumar, Haji Bashir Ahmed [1976] 3 SCR 58 [LNIND 1975 SC 532] [LNIND 1975 SC 532] [LNIND 1975 SC 532] (an
owner of a cinema challenged the action of the concerned administrative authority permitting another person to construct a
cinema building in the locality; the Supreme Court dismissed the petition holding that he had no standing as he was not the
aggrieved person as no right vested in him had been infringed or prejudicially affected in the eyes of law; to grant a writ to the
petitioner in the instant case would eliminate healthy business competition); Nagar Rice and Flour Mills v N Teekappa Gowda
& Bros AIR 1971 SC 246 [LNIND 1970 SC 85] [LNIND 1970 SC 85] [LNIND 1970 SC 85], Nagar Rice and Flour Mills v N
Teekappa Gowda & Bros (1970) 1 SCC 575 [LNIND 1970 SC 85] [LNIND 1970 SC 85] [LNIND 1970 SC 85], Nagar Rice and
Flour Mills v N Teekappa Gowda & Bros [1970] 3 SCR 846 [LNIND 1970 SC 85] [LNIND 1970 SC 85] [LNIND 1970 SC 85](a
rice mill owner has no locus standi to challenge under the Constitution of India art 226, the setting up of a new rice mill by
another person even if the setting up of a new rice mill may be in contravention the Rice Milling Industry (Regulation) Act 1958 s
8(3)(c), the reason being that no right vested in such an applicant is infringed).

WRIT JURISDICTION/[005.232] Laches
[005.232] Laches A period of limitation has not been prescribed for the high courts to exercise their writ
jurisdiction1. Nevertheless, a writ petition may be dismissed by a high court on the ground of laches because
courts do not entertain stale claims. Therefore, writ petitions filed after inordinate delay are usually
dismissed2. The rule that the court may not inquire into stale claims is not a rule of law but a rule of practice
based on sound and proper exercise of discretion. Each case depends on its own facts3.
The rationale behind denying relief on grounds of laches or inordinate delay is that by lapse of time, rights
may have accrued to third parties and the same must not to be disturbed, unless there is a reasonable
explanation for the delay4. The jurisdiction of high courts being discretionary, a court may decline to interfere
when there is inordinate and unexplained delay and third party rights have been created. The real test to
determine delay in such cases is that the petitioner must come to the writ court before a parallel right is
created and any lapse of time must not be attributable to any laches or negligence. Even where
circumstances justifying the delay exist, an illegality that is manifest may not be sustained on the sole ground
of laches5.
In order to ensure that the discretion vested in a high court is exercised wisely, it may refuse to invoke its writ
jurisdiction in respect of petitioners who do not approach it expeditiously for relief6. Furthermore, the
applicant seeking relief is under an obligation to explain the reasons for delay to the court7.
The Limitation Act 1963 as such does not apply to writ petitions but it may provide a standard to measure
delay in invoking the writ jurisdiction of the high courts8. However, the high courts are not mechanically
bound by the period of limitation fixed in the Limitation Act 19639.
In the exercise of their writ jurisdiction, high courts must consider the facts and circumstances of each case
in ascertaining whether or not there has been laches on the part of the parties seeking relief10.
What relief must be granted to a petitioner invoking the writ jurisdiction of a high court is a matter of sound
judicial discretion. A writ petition filed beyond the period of limitation fixed for filing suits, without any
explanation for delay is unreasonable. However, this is not a rigid formula and in appropriate circumstances,
even a delay of a shorter period may be considered sufficient to refuse relief11. High courts thus, do not bind
their discretion by any fixed norm of limitation and decide the matter in the circumstances of each case12.
Whether in a given case the delay involved is such that it disentitles a person from relief is a matter which is
to be exercised judiciously and reasonably having regard to the surrounding circumstances13.
1 Ie the writ jurisdiction conferred upon the high courts by the Constitution of India art 226 (see generally[80]CONSTITUTIONAL
LAW). See generally LIMITATION OF ACTIONS [205].
335 144
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2 Durga Prasad v Chief Controller of Imports and Exports AIR 1970 SC 769 [LNIND 1968 SC 351] [LNIND 1968 SC 351]
[LNIND 1968 SC 351], Durga Prasad v Chief Controller of Imports and Exports (1970) 1 SCJ 449 [LNIND 1968 SC 351] [LNIND
1968 SC 351] [LNIND 1968 SC 351], Durga Prasad v Chief Controller of Imports and Exports [1969] 2 SCR 861 [LNIND 1968
SC 351] [LNIND 1968 SC 351] [LNIND 1968 SC 351]; Municipal Council, Ahmednagar v Shah Hyder Beig AIR 2000 SC 675,
Municipal Council, Ahmednagar v Shah Hyder Beig AIR 2000 SC 671 [LNIND 1999 SC 1111] [LNIND 1999 SC 1111] [LNIND
1999 SC 1111], Municipal Council, Ahmednagar v Shah Hyder Beig (2000) 2 SCC 48 [LNIND 1999 SC 1111] [LNIND 1999 SC
1111] [LNIND 1999 SC 1111]; BS Bajwa v State of Punjab AIR 1999 SC 1510 [LNIND 1997 SC 1824] [LNIND 1997 SC 1824]
[LNIND 1997 SC 1824], BS Bajwa v State of Punjab AIR 1998 SCW 3883, BS Bajwa v State of Punjab (1998) 2 SCC 523
[LNIND 1997 SC 1824] [LNIND 1997 SC 1824] [LNIND 1997 SC 1824]; Municipal Corpn of Greater Bombay v The Industrial
Development Investment Co Pvt Ltd AIR 1997 SC 482 [LNIND 1996 SC 1403] [LNIND 1996 SC 1403] [LNIND 1996 SC 1403],
Municipal Corpn of Greater Bombay v The Industrial Development Investment Co Pvt Ltd (1997) 11 SCC 501, Municipal Corpn
of Greater Bombay v The Industrial Development Investment Co Pvt Ltd (1997) 3 SCJ 186; SA Rasheed v Director of Mines &
Geology AIR 1995 SC 1739 [LNIND 1995 SC 592] [LNIND 1995 SC 592] [LNIND 1995 SC 592], SA Rasheed v Director of
Mines & Geology (1995) 4 SCC 584 [LNIND 1995 SC 592] [LNIND 1995 SC 592] [LNIND 1995 SC 592], SA Rasheed v Director
of Mines & Geology (1995) 1 SCJ 532; State of Maharashtra v Digambar AIR 1995 SC 1991 [LNIND 1995 SC 671] [LNIND
1995 SC 671] [LNIND 1995 SC 671], State of Maharashtra v Digambar (1995) 4 SCC 683 [LNIND 1995 SC 671] [LNIND 1995
SC 671] [LNIND 1995 SC 671], State of Maharashtra v Digambar (1995) 4 Scale 98 [LNIND 1995 SC 671] [LNIND 1995 SC
671] [LNIND 1995 SC 671](the petitioner approached the high court for grant of compensation after 20 years of his land having
taken away by the state; the high court granted him relief but, on appeal, the Supreme Court quashed the high court order; the
Supreme Court observed that when a writ petitioner is guilty of laches or undue delay, he is disentitled for discretionary relief
from the high court under the Constitution of India art 226); Ratan Chandra Sammata v Union of India AIR 1993 SC 2276
[LNIND 1993 SC 461] [LNIND 1993 SC 461] [LNIND 1993 SC 461], Ratan Chandra Sammata v Union of India (1993) 2 SCJ
540, (1993); State of Madhya Pradesh v Nandlal Jaiswal AIR 1987 SC 251 [LNIND 1986 SC 400] [LNIND 1986 SC 400]
[LNIND 1986 SC 400], State of Madhya Pradesh v Nandlal Jaiswal (1986) 4 SCC 566 [LNIND 1986 SC 400] [LNIND 1986 SC
400] [LNIND 1986 SC 400], State of Madhya Pradesh v Nandlal Jaiswal [1987] 1 SCR 1 [LNIND 1986 SC 400] [LNIND 1986 SC
400] [LNIND 1986 SC 400] (when the writ jurisdiction of the high court is invoked, unexplained delay coupled with the creation
of third party rights in the meanwhile is an important factor which always weighs with the high courts indecision whether or not
to exercise such jurisdiction); R S Makashi v IM Menon AIR 1982 SC 101 [LNIND 1981 SC 453] [LNIND 1981 SC 453] [LNIND
1981 SC 453], R S Makashi v IM Menon (1982) 1 SCC 379 [LNIND 1981 SC 453] [LNIND 1981 SC 453] [LNIND 1981 SC 453],
R S Makashi v IM Menon (1982) Lab IC 38 [LNIND 1981 SC 453] [LNIND 1981 SC 453] [LNIND 1981 SC 453]; Roshan Lal v
International Airport Authority of India AIR 1981 SC 597 [LNIND 1980 SC 447] [LNIND 1980 SC 447] [LNIND 1980 SC 447],
Roshan Lal v International Airport Authority of India (1980) Supp SCC 449, Roshan Lal v International Airport Authority of India
(1980) 3 SLR 587; Gian Singh Mann v High Court of Punjab & Haryana AIR 1980 SC 1894 [LNIND 1980 SC 343] [LNIND 1980
SC 343] [LNIND 1980 SC 343], Gian Singh Mann v High Court of Punjab & Haryana (1980) 4 SCC 266 [LNIND 1980 SC 343]
[LNIND 1980 SC 343] [LNIND 1980 SC 343], Gian Singh Mann v High Court of Punjab & Haryana [1981] 1 SCR 507 [LNIND
1980 SC 343] [LNIND 1980 SC 343] [LNIND 1980 SC 343]; Amrit Lal Berry v Collector of Central Excise, Central Revenue AIR
1975 SC 538 [LNIND 1974 SC 404] [LNIND 1974 SC 404] [LNIND 1974 SC 404], Amrit Lal Berry v Collector of Central Excise,
Central Revenue (1975) SCC (Lab) 412, Amrit Lal Berry v Collector of Central Excise, Central Revenue (1975) Lab IC 363; P S
Sadasivaswamy v State of Tamil Nadu AIR 1974 SC 2271 [LNIND 1974 SC 304] [LNIND 1974 SC 304] [LNIND 1974 SC 304],
P S Sadasivaswamy v State of Tamil Nadu (1975) 1 SCC 152 [LNIND 1974 SC 304] [LNIND 1974 SC 304] [LNIND 1974 SC
304], P S Sadasivaswamy v State of Tamil Nadu [1975] 2 SCR 356 [LNIND 1974 SC 304] [LNIND 1974 SC 304] [LNIND 1974
SC 304] (the writ petition was dismissed because the petitioner, a government servant, slept over the promotions of his juniors
over his head for fourteen years; after such a long time, he filed the writ petition challenging these promotions); Kamini Kumar
Das Choudhury v State of West Begal AIR 1972 SC 2060 [LNIND 1972 SC 325] [LNIND 1972 SC 325] [LNIND 1972 SC 325],
Kamini Kumar Das Choudhury v State of West Begal (1972) 2 SCC 420 [LNIND 1972 SC 325] [LNIND 1972 SC 325] [LNIND
1972 SC 325], Kamini Kumar Das Choudhury v State of West Begal [1973] 1 SCR 718 [LNIND 1972 SC 325] [LNIND 1972 SC
325] [LNIND 1972 SC 325] (the petitioner, a police officer, was dismissed from service on August 1 1951; he appealed against
his dismissal but it was dismissed by the inspector General of police on October 27 1951; thereafter, he filed a writ petition on
September 9 1953 and successfully challenged his dismissal on the ground of laches); M K Krishnaswamy v Union of India AIR
1973 SC 1168 [LNIND 1973 SC 422] [LNIND 1973 SC 422] [LNIND 1973 SC 422], M K Krishnaswamy v Union of India (1973)
4 SCC 163 [LNIND 1973 SC 422] [LNIND 1973 SC 422] [LNIND 1973 SC 422], M K Krishnaswamy v Union of India (1973) Lab
IC 78; Ajit Singh v State of Punjab AIR 1967 SC 856 [LNIND 1966 SC 299] [LNIND 1966 SC 299] [LNIND 1966 SC 299], Ajit
Singh v State of Punjab [1969] 2 SCR 143, Ajit Singh v State of Punjab 69 Punj LR 271 (after about four years of completion of
the consolidation proceedings, the petitioner sought to challenge the legal authority of the consolidation officer to start the
proceedings; the Supreme Court ruled that the objection could not be raised in a writ petition at the belated stage because to
permit the petitioner to do so at such a late stage would result in adversely affecting the interests of a number of individuals).
Railway Co Ltd v District Board, Bhojpur [1992] 2 SCR 155 [LNIND 1992 SC 241] [LNIND 1992 SC 241] [LNIND 1992 SC 241].
Railway Co Ltd v District Board, Bhojpur [1992] 2 SCR 155 [LNIND 1992 SC 241] [LNIND 1992 SC 241] [LNIND 1992 SC 241];
GC Gupta v NK Pandey AIR 1988 SC 268 [LNIND 1987 SC 828] [LNIND 1987 SC 828] [LNIND 1987 SC 828], GC Gupta v NK
Pandey (1988) 2 SCC 598, GC Gupta v NK Pandey [1992] 2 SCR 155 [LNIND 1992 SC 241] [LNIND 1992 SC 241] [LNIND
1992 SC 241] (the seniority of the respondents was determined in 1956, however, the order was challenged through a writ
petition in 1973; it could not be permitted as it would amount to unjust deprivation of the rights of the appellants which had
accrued to them in the meantime; although, the government had wrongly interpreted the rules, the court thought it just and
proper in the circumstances of the case not to give any relief to the respondents on the ground of inordinate delay in challenging
336 145
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the seniority list made in 1956).
5 See note 3 above.
6 Tilokchand Motichand v H B Munshi, Comr of Sales Tax, Bombay AIR 1970 SC 898 [LNIND 1968 SC 353] [LNIND 1968 SC
353] [LNIND 1968 SC 353], Tilokchand Motichand v H B Munshi, Comr of Sales Tax, Bombay (1970) 1 SCJ 859, Tilokchand
Motichand v H B Munshi, Comr of Sales Tax, Bombay [1969] 2 SCR 824 [LNIND 1968 SC 353] [LNIND 1968 SC 353] [LNIND
1968 SC 353]; PS Sadasivaswamy v State of Tamil Nadu AIR 1974 SC 2271 [LNIND 1974 SC 304] [LNIND 1974 SC 304]
[LNIND 1974 SC 304], PS Sadasivaswamy v State of Tamil Nadu (1975) 1 SCC 152 [LNIND 1974 SC 304] [LNIND 1974 SC
304] [LNIND 1974 SC 304], PS Sadasivaswamy v State of Tamil Nadu [1975] 2 SCR 356 [LNIND 1974 SC 304] [LNIND 1974
SC 304] [LNIND 1974 SC 304] .
7 State of Maharashtra v Digambar AIR 1995 SC 1991 [LNIND 1995 SC 671] [LNIND 1995 SC 671] [LNIND 1995 SC 671],
State of Maharashtra v Digambar (1995) 4 SCC 683 [LNIND 1995 SC 671] [LNIND 1995 SC 671] [LNIND 1995 SC 671], State
of Maharashtra v Digambar (1995) 4 Scale 98 [LNIND 1995 SC 671] [LNIND 1995 SC 671] [LNIND 1995 SC 671]; State of
Uttar Pradesh v Harish Chandra AIR 1996 SC 2173 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624] [LNIND 1996 SC 2624], at
2175, State of Uttar Pradesh v Harish Chandra (1996) 9 SCC 309 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624] [LNIND 1996
SC 2624], State of Uttar Pradesh v Harish Chandra (1996) 4 JT 414 (it is undoubtedly true that the applicant seeking for
condonation of delay is duty bound to explain the reasons for the delay; in 1980, the appellant applied for grant of a quarry
lease; the same was denied to him in 1981; he filed a writ petition in 1989 challenging the order passed in 1981; the court
rejected the writ petition on the ground of laches as there was no explanation for a delay of eight years in filing the writ petition).
8 State of Madhya Pradesh v Bhailal Bhai AIR 1964 SC 1006 [LNIND 1964 SC 7] [LNIND 1964 SC 7] [LNIND 1964 SC 7],
State of Madhya Pradesh v Bhailal Bhai [1964] 6 SCR 261 [LNIND 1964 SC 7] [LNIND 1964 SC 7] [LNIND 1964 SC 7], State of
Madhya Pradesh v Bhailal Bhai (1964) 15 STC 450(the provisions of the Limitation Act 1963 do not as such apply to the
granting of relief under the Constitution of India art 226; however, the maximum period fixed by the legislature as the time within
which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in
seeking remedy under art 226 may be measured); D Cawasji & Co v State of Mysore AIR 1975 SC 813 [LNIND 1974 SC 471]
[LNIND 1974 SC 471] [LNIND 1974 SC 471], D Cawasji & Co v State of Mysore (1975) 1 SCC 636 [LNIND 1974 SC 471]
[LNIND 1974 SC 471] [LNIND 1974 SC 471], D Cawasji & Co v State of Mysore (1975) SCC (Tax) 172. See generally limitation
of actions [205].
9 Kamini Kumar Das Choudhury v State of West Begal AIR 1972 SC 2060 [LNIND 1972 SC 325] [LNIND 1972 SC 325]
[LNIND 1972 SC 325], Kamini Kumar Das Choudhury v State of West Begal (1972) 2 SCC 420 [LNIND 1972 SC 325] [LNIND
1972 SC 325] [LNIND 1972 SC 325], Kamini Kumar Das Choudhury v State of West Begal [1973] 1 SCR 718 [LNIND 1972 SC
325] [LNIND 1972 SC 325] [LNIND 1972 SC 325]. See contra Sachindra Nath Sen Gupta v General Manager, North East
Frontier Railway, Maligaon AIR 1973 Gau 108, Sachindra Nath Sen Gupta v General Manager, North East Frontier Railway,
Maligaon (1972) Assam LR Gau 95.
10 Uttar Pradesh Pollution Control Board v Kanoria Industrial Ltd AIR 2001 SC 787, at 793, Uttar Pradesh Pollution Control
Board v Kanoria Industrial Ltd (2001) 2 SCC 549, Uttar Pradesh Pollution Control Board v Kanoria Industrial Ltd (2001) 2 JT
103.
11 Shri Vallabh Glass Works Ltd v Union of India AIR 1984 SC 971 [LNIND 1984 SC 72] [LNIND 1984 SC 72] [LNIND 1984 SC
72], Shri Vallabh Glass Works Ltd v Union of India (1984) 3 SCC 362 [LNIND 1984 SC 72] [LNIND 1984 SC 72] [LNIND 1984
SC 72], Shri Vallabh Glass Works Ltd v Union of India (1984) UJ 539; SA Rasheed v Director of Mines & Geology AIR 1995
SC 1739 [LNIND 1995 SC 592] [LNIND 1995 SC 592] [LNIND 1995 SC 592], Rasheed v Director of Mines & Geology (1995) 4
SCC 584 [LNIND 1995 SC 592] [LNIND 1995 SC 592] [LNIND 1995 SC 592], Rasheed v Director of Mines & Geology (1995) 1
SCJ 532.
12 See Alice Jacob, Laches: Denial of Judicial Relief under Articles 32 and 226 (16 JILI, 1974) p 352; Seervai, The Supreme
Court, Art 32 of the Constitution and Limitation (71 Bom LR (JI), 1969) pp 35-38.
13 Municipal Council, Ahmednagar v Shah Hyder Beig AIR 2000 SC 675, Municipal Council, Ahmednagar v Shah Hyder Beig
AIR 2000 SC 671 [LNIND 1999 SC 1111] [LNIND 1999 SC 1111] [LNIND 1999 SC 1111], Municipal Council, Ahmednagar v
Shah Hyder Beig (2000) 2 SCC 48 [LNIND 1999 SC 1111] [LNIND 1999 SC 1111] [LNIND 1999 SC 1111]; B S Bajwa v State
of Punjab AIR 1999 SC 1510 [LNIND 1997 SC 1824] [LNIND 1997 SC 1824] [LNIND 1997 SC 1824], B S Bajwa v State of
Punjab AIR 1998 SCW 3883, B S Bajwa v State of Punjab (1998) 2 SCC 523 [LNIND 1997 SC 1824] [LNIND 1997 SC 1824]
[LNIND 1997 SC 1824]; Union of India v SS Kothiyal 1998 SCC 682; SA Rasheed v Director of Mines & Geology AIR 1995 SC
1739 [LNIND 1995 SC 592] [LNIND 1995 SC 592] [LNIND 1995 SC 592], SA Rasheed v Director of Mines & Geology (1995) 4
SCC 584 [LNIND 1995 SC 592] [LNIND 1995 SC 592] [LNIND 1995 SC 592], SA Rasheed v Director of Mines & Geology
(1995) 1 SCJ 532; State of Maharashtra v Digambar AIR 1995 SC 1991 [LNIND 1995 SC 671] [LNIND 1995 SC 671] [LNIND
1995 SC 671], State of Maharashtra v Digambar (1995) 4 SCC 683 [LNIND 1995 SC 671] [LNIND 1995 SC 671] [LNIND 1995
SC 671], State of Maharashtra v Digambar (1995) 4 Scale 98 [LNIND 1995 SC 671] [LNIND 1995 SC 671] [LNIND 1995 SC
671]; Ratan Chandra Sammata v Union of India AIR 1993 SC 2276 [LNIND 1993 SC 461] [LNIND 1993 SC 461] [LNIND 1993
SC 461], Ratan Chandra Sammata v Union of India (1993) 2 SCJ 540, (1993); Dehri Rohtas Light Railway Co Ltd v District
Board, Bhojpur AIR 1993 SC 802 [LNIND 1992 SC 241] [LNIND 1992 SC 241] [LNIND 1992 SC 241], Dehri Rohtas Light
Railway Co Ltd v District Board, Bhojpur (1992) 2 SCC 588, Dehri Rohtas Light Railway Co Ltd v District Board, Bhojpur [1992]
2 SCR 155 [LNIND 1992 SC 241] [LNIND 1992 SC 241] [LNIND 1992 SC 241]; Radhey Shyam v State of Haryana AIR 1982
P & H 519, Radhey Shyam v State of Haryana (1982) Land LR 561, Radhey Shyam v State of Haryana (1982) Rev LR 426;
337 146
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Ashok Kumar Mishra v Collector, Raipur AIR 1980 SC 112 [LNIND 1979 SC 358] [LNIND 1979 SC 358] [LNIND 1979 SC 358],
Ashok Kumar Mishra v Collector, Raipur (1980) 1 SCC 180 [LNIND 1979 SC 358] [LNIND 1979 SC 358] [LNIND 1979 SC 358],
Ashok Kumar Mishra v Collector, Raipur (1980) 1 SCJ 365.

WRIT JURISDICTION/[005.233] Questions of fact
[005.233] Questions of fact In a writ petition, the high court has jurisdiction to determine questions both of
fact and law. However, usually, the court is reluctant to go into the questions of fact, which require oral
evidence for their determination. The attitude of the courts is that questions of fact are best determined in an
ordinary civil suit after adducing evidence and not in a writ petition which is in essence supervisory and not
appellate in nature1. Therefore, if a writ petition cannot be disposed of satisfactorily, the high court would not
ordinarily take it up2. For instance, a writ is not issued to determine questions relating to immovable property.
The reason is that this may involve determination of questions of fact and such questions are best decided in
a civil suit as they cannot be decided without evidence, both oral and documentary3. If, however, facts
arising in a writ petition can be determined on the basis of affidavit evidence without the need to take oral
evidence, a high court may entertain the writ petition4.
Ultimately, the matter is one of court's discretion and not of its jurisdiction5. If an inquiry into questions of fact
arises in a writ petition, it is a matter of the high court's discretion whether or not it will enter into such an
inquiry6. For instance, the court may determine facts if the jurisdiction of an administrative or quasi-judicial
body itself depends on the finding of facts7.
In order to decide questions of fact in a writ petition, the court takes recourse to affidavits and it may even
permit cross examination8 of a person who has sworn to an affidavit. However, It is a rare phenomenon9.
1 DLF Housing Construction v Delhi Municipal Corpn AIR 1976 SC 386, DLF Housing Construction v Delhi Municipal Corpn
(1976) 3 SCC 160, DLF Housing Construction v Delhi Municipal Corpn (1976) MCC 145; State of Goa v Leukoplast (India) Ltd
AIR 1997 SC 1875 [LNIND 1997 SC 356] [LNIND 1997 SC 356] [LNIND 1997 SC 356], State of Goa v Leukoplast (India) Ltd
(1997) 4 SCC 82 [LNIND 1997 SC 356] [LNIND 1997 SC 356] [LNIND 1997 SC 356], State of Goa v Leukoplast (India) Ltd
(1997) 3 SCJ 68; Union of India v Bata India Ltd AIR 1994 SC 921, Union of India v Bata India Ltd (1994) AIR (1994) SCW
341, Union of India v Bata India Ltd (1994) 2 BLJ 360; Ghan Shyam Das Gupta v Anant Kumar Sinha AIR 1991 SC 2252,
Ghan Shyam Das Gupta v Anant Kumar Sinha (1991) 4 SCC 379 [LNIND 1991 SC 468] [LNIND 1991 SC 468] [LNIND 1991
SC 468], Ghan Shyam Das Gupta v Anant Kumar Sinha [1991] Supp 1 SCR 219; Padmavathi Constructions v Andhra Pradesh
Industrial Infrastructure Corpn Ltd AIR 1997 AP 1 [LNIND 1996 AP 554] [LNIND 1996 AP 554] [LNIND 1996 AP 554],
Padmavathi Constructions v Andhra Pradesh Industrial Infrastructure Corpn Ltd (1996) 3 Andh LT 953 [LNIND 1996 AP 554]
[LNIND 1996 AP 554] [LNIND 1996 AP 554], Padmavathi Constructions v Andhra Pradesh Industrial Infrastructure Corpn Ltd
(1996) 3 Andh LD 591; Brij Bihari Pandey v State AIR 1997 Pat 74; Mahesh Chandra v Zila Panchayat, Mainpuri AIR 1997 All
248 [LNIND 1996 ALL 649] [LNIND 1996 ALL 649] [LNIND 1996 ALL 649], Mahesh Chandra v Zila Panchayat, Mainpuri (1997)
All LJ 1252, Mahesh Chandra v Zila Panchayat, Mainpuri (1996) All CJ 1168.
2 DLF Housing Construction v Delhi Municipal Corpn AIR 1976 SC 386, DLF Housing Construction v Delhi Municipal Corpn
(1976) 3 SCC 160, DLF Housing Construction v Delhi Municipal Corpn (1976) MCC 145 (a writ petition was dismissed on the
preliminary ground that it was a case where the basic facts were disputed and complicated questions of law and fact depending
upon evidence were involved and so the writ court was not the proper forum for seeking relief).
3 State of Uttar pradesh v Maharaja Dharmander Prasad Singh AIR 1989 SC 997 [LNIND 1989 SC 680] [LNIND 1989 SC 680]
[LNIND 1989 SC 680], State of Uttar pradesh v Maharaja Dharmander Prasad Singh [1989] 1 SCR 176 [LNIND 1989 SC 680]
[LNIND 1989 SC 680] [LNIND 1989 SC 680], State of Uttar pradesh v Maharaja Dharmander Prasad Singh (1989) 2 SCC 505
[LNIND 1989 SC 680] [LNIND 1989 SC 680] [LNIND 1989 SC 680](the Supreme Court pointed out that the question whether
the purported forfeiture and cancellation of a lease by the state government was valid or not must not be allowed to be agitated
under the Constitution of India art 226 for questions of fact which are required to be gone into in that behalf, are extraneous to
the proceedings under art 226).
4 Jain Plastic & Chemicals Ltd v State of Bihar AIR 2001 Pat 16, 19.
5 Muni Lal v Prescribed Authority, AIR 1978 SC 28; Kunda S Kadam v K K Soman AIR 1980 SC 881, Kunda S Kadam v K K
338 147
Page
Soman (1980) 2 SCC 355, Kunda S Kadam v K K Soman (1980) Lab IC 593; Gunwant Kaur v Municipal Committee, Bhatinda
AIR 1970 SC 802, Gunwant Kaur v Municipal Committee, Bhatinda (1970) All LJ 78, Gunwant Kaur v Municipal Committee,
Bhatinda (1970) BLJR 252 (the high courts rejected the petition in limine on the ground that there were complicated questions
of fact involved; on appeal, the Supreme Court held the dismissal unjustified saying that for proof of a large number of
allegations the writ petitioner relied on documentary evidence and that the result of the facts could be decided through
affidavits; the court must have proceeded to try the parties, instead of relegating the appellants to a separate suit); Ajay Kumar
v Chandigarh Administration, Union Territory, Chandigarh AIR 1983 P & H 8, Ajay Kumar v Chandigarh Administration, Union
Territory, Chandigarh (1983) ILR 2 P & H 297.
6 Babubhai Muljibhai Patel v Nandlal Khodias Barot AIR 1974 SC 2105 [LNIND 1974 SC 279] [LNIND 1974 SC 279] [LNIND
1974 SC 279], Babubhai Muljibhai Patel v Nandlal Khodias Barot (1974) 2 SCC 706 [LNIND 1974 SC 279] [LNIND 1974 SC
279] [LNIND 1974 SC 279], Babubhai Muljibhai Patel v Nandlal Khodias Barot [1975] 2 SCR 71 [LNIND 1974 SC 279] [LNIND
1974 SC 279] [LNIND 1974 SC 279]; Zeenat Tej v Principal of the Prince of Wales Medical College, Patna AIR 1971 Pat 43.
7 Jagadish Prasad Shastri v State of Uttar Pradesh AIR 1971 SC 1224 [LNIND 1970 SC 413] [LNIND 1970 SC 413] [LNIND
1970 SC 413], Jagadish Prasad Shastri v State of Uttar Pradesh (1971) 2 SCJ 409 [LNIND 1970 SC 413] [LNIND 1970 SC 413]
[LNIND 1970 SC 413], Jagadish Prasad Shastri v State of Uttar Pradesh (1971) UJ SC 41.
8 As to cross-examination as an essential part of the rule of audi alteram partem see [005.062].
SC 132], Barium Chemicals Ltd v Company Law Board (1966) 2 SCJ 623, Barium Chemicals Ltd v Company Law Board [1966]
Supp SCR 311 (the high court, in exercise of its discretion, refused permission to cross examine the deponents and, on appeal,
the Supreme Court refused to interfere with the exercise of that discretion); Shama Prashant Raje v Ganpatrao AIR 2000 SC
3094 [LNIND 2000 SC 1308] [LNIND 2000 SC 1308], Shama Prashant Raje v Ganpatrao AIR SCW 3493, Shama Prashant
Raje v Ganpatrao (2000) 7 SCC 522 [LNIND 2000 SC 1308] [LNIND 2000 SC 1308]; Babubhai Muljibhai Patel v Nandlal
Khodias Barot AIR 1974 SC 2105 [LNIND 1974 SC 279] [LNIND 1974 SC 279] [LNIND 1974 SC 279], Babubhai Muljibhai Patel
v Nandlal Khodias Barot (1974) 2 SCC 706 [LNIND 1974 SC 279] [LNIND 1974 SC 279] [LNIND 1974 SC 279], Babubhai
Muljibhai Patel v Nandlal Khodias Barot [1975] 2 SCR 71 [LNIND 1974 SC 279] [LNIND 1974 SC 279] [LNIND 1974 SC 279];
Gunwant Kaur v Municipal Committee, Bhatinda AIR 1970 SC 802, Gunwant Kaur v Municipal Committee, Bhatinda (1970) All
LJ 78, Gunwant Kaur v Municipal Committee, Bhatinda (1970) BLJR 252; Jain Plastics & Chemicals Ltd v State of Bihar AIR
2001 Pat 16.

WRIT JURISDICTION/[005.234] Applicability of civil procedure
[005.234] Applicability of civil procedure The Code of Civil Procedure 1908 does not apply to writ
proceedings1. An order passed by a high court in a writ petition cannot be equated with a decree passed by
the court in a suit and cannot be executed in a manner provided by the Code of Civil Procedure 1908. The
matter of execution of the orders of a high court under its writ jurisdiction is governed by the rules pertaining
to the same2. However, this does not affect the inherent powers of high courts to review a decision given in a
writ petition3.
Since the aim of writ jurisdiction4 is to secure a speedy and efficacious remedy to a person whose legal right
is infringed, it would be frustrated if all the technical rules laid down in Code of Civil Procedure 1908 were to
be applied to writ petitions5.
The high courts are primarily free to adopt their own procedure for writ petitions and are basically expected to
adopt a reasonable and expeditious procedure for the purpose. The provisions of the Civil Procedure Code
1908 are not applicable suo motu to writ proceedings. and thus, the high courts have extensive discretion to
devise a procedure for disposing the writ petitions6.
1 Code of Civil Procedure 1908 s 141 explanation: the expression proceedings does not include any proceeding under the
Constitution of India art 226. See CIVIL PROCEDURE[65.564].
2 Charanlal v Shri Lal Bahadur Shastri Harijan Samuhik Krishi Sahkari Sanstha (Samiti), Saliya Barodi AIR 1980 MP 114
[LNIND 1979 MP 5] [LNIND 1979 MP 5] [LNIND 1979 MP 5].
339 148
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3 As to the aim of writ jurisdiction of high courts see scope and object [005.222].
4 As to the technicalities involved in filing a plaint see generally civil procedure [65.201].
5 Divisional Forest Officer v TU Cheriyan AIR 1982 Ker 363, Divisional Forest Officer v TU Cheriyan (1982) Ker LT 682; Abdul
Kareem v DMO, Ernakulam AIR 1974 Ker 167 [LNIND 1973 KER 194] [LNIND 1973 KER 194] [LNIND 1973 KER 194], Abdul
Kareem v DMO, Ernakulam (1974) ILR 1 Ker 107, Abdul Kareem v DMO, Ernakulam (1974) Ker LT 21. As to the meaning of
review see civil procedure [65.773].
6 Puran Singh v State of Punjab AIR 1996 SC 1092 [LNIND 1996 SC 136] [LNIND 1996 SC 136] [LNIND 1996 SC 136], Puran
Singh v State of Punjab (1996) 2 SCC 205 [LNIND 1996 SC 136] [LNIND 1996 SC 136] [LNIND 1996 SC 136], Puran Singh v
State of Punjab (1996) 1 JT 362 [LNIND 1996 SC 136] [LNIND 1996 SC 136] [LNIND 1996 SC 136]; Teja Singh v Union
Territory of Chandigarh AIR 1982 P & H 169, Teja Singh v Union Territory of Chandigarh (1982) ILR 1 P & H 385, Teja Singh v
Union Territory of Chandigarh 84 Punj LR 160. See also Hon'able Secretary and Correspondent, Badruka College of
Commerce & Arts (Day), Hyderabad v State of Andhra Pradesh AIR 1997 AP 179, Hon'able Secretary and Correspondent,
Badruka College of Commerce & Arts (Day), Hyderabad v State of Andhra Pradesh (1996) 4 Andh LT 1103, Hon'able Secretary
and Correspondent, Badruka College of Commerce & Arts (Day), Hyderabad v State of Andhra Pradesh (1997) 1 Crimes 176;
Balwinder Singh v University of Jammu AIR 1983 J & K 19, Balwinder Singh v University of Jammu (1982) Srinagar LJ 490.

ADMINISTRATIVE LAW/18. WRIT JURISDICTION OF HIGH COURTS/(3) POWERS OF HIGH
COURT/[005.235] Territorial Jurisdiction To Issue Writs
[005.235] Territorial Jurisdiction To Issue Writs A high court may exercise its writ jurisdiction in relation to
the territories within which the cause of action, wholly or in part, arises for the exercise of such power,
notwithstanding that the seat of such government or authority or the residence of such person is not within
those territories1.
It is the duty of the high court before which the writ petition is filed, to ascertain whether any part of the cause
of action has arisen within the territorial limits of its jurisdiction. It depends on the facts of each case. When
an order is challenged CA,use of action arises at the place where the order was made and its consequences
fall on the person concerned2.
A high court can exercise its writ jurisdiction if a part of the cause of action arises within its territorial
jurisdiction. However, if no part of the cause action arises within its territorial jurisdiction, then the matter lies
outside its writ jurisdiction3.
In order to entertain a writ petition, the high court must be satisfied from the entire facts pleaded in support of
the cause of action that those facts do constitute a cause of action so as to empower the court to decide a
dispute which has, at least in part, arisen within its jurisdiction4. Each and every fact pleaded by the
petitioner in his application does not lead to the conclusion that it gives rise to a cause of action within the
high court's territorial jurisdiction, unless it has a nexus or relevance with the lis that is involved in the case.
Facts that have no bearing with the lis or the dispute involved in the case do not give rise to a cause of action
so as to confer territorial jurisdiction on the high court concerned5.
As an exception to the rule, the Chief of Army Staff may be sued anywhere in the country6. Similarly,
residence of the writ petitioner is not the criterion to determine the contours of the cause of action in a
particular writ petition. Filing of a 'First Information Report' (FIR) in a particular state is also not the sole
criterion to decide that no cause of action has arisen even partly in the territorial limits of the jurisdiction of
another state7.
2 Securities and Exchange Board of India v Alka Synthetics Ltd AIR 1999 Guj 221 [LNIND 1998 GUJ 676] [LNIND 1998 GUJ
676] [LNIND 1998 GUJ 676], Securities and Exchange Board of India v Alka Synthetics Ltd (1999) 1 Guj LR 275, Securities and
Exchange Board of India v Alka Synthetics Ltd (1999) 1 Com LJ (Guj) 396; Birla Institute of Technology v Yamini Shukla AIR
340 149
Page
1996 244.
3 Oil and Natural Gas Commission v Utpal Kumar Basu 1994 4 SCC 711 [LNIND 1994 SC 1464] [LNIND 1994 SC 1464]
[LNIND 1994 SC 1464], Oil and Natural Gas Commission v Utpal Kumar Basu (1994) 5 JT 1, Oil and Natural Gas Commission
v Utpal Kumar Basu (1994) 3 Scale 90(the petitioner company, having its registered office in Calcutta, read in a Calcutta
newspaper the ONGC advertisement inviting tenders at Delhi for works to be executed in Gujarat; in response to this
advertisement, the petitioner company sent its tender from Calcutta to the Delhi address; all the bids were analysed at Delhi
and the petitioner company's bid was rejected on the ground that it did not fulfil the requisite experience criteria stipulated in the
tender; the company made representations from Calcutta against non consideration of its offer but the same were rejected by
ONGC at Delhi; the company then filed a writ petition against ONGC in the Calcutta high court which issued direction to ONGC
to consider the petitioner's tender; on appeal by ONGC, the Supreme Court quashed the high court order on the ground of lack
of jurisdiction in the high court as no part of the cause of action arose with in the territorial jurisdiction of the High Court of
Calcutta; under the Constitution of India art 226, a high court can exercise its jurisdiction if a part of the cause of action arises
within its territorial jurisdiction but, in the instant case, no part of the cause of action arose within the territorial jurisdiction of the
Calcutta High court.
4 Oil and Natural Gas Commission v Utpal Kumar Basu 1994 4 SCC 711 [LNIND 1994 SC 1464] [LNIND 1994 SC 1464]
[LNIND 1994 SC 1464], Oil and Natural Gas Commission v Utpal Kumar Basu (1994) 5 JT 1, Oil and Natural Gas Commission
v Utpal Kumar Basu (1994) 3 Scale 90 (the expression cause of action means that bundle of facts which the petitioner must
prove, if traversed, to entitle him to judgment in his favour by the court; therefore, in determining the objection of lack of
territorial jurisdiction, the court must take all the facts pleaded in support of the cause of action into consideration albeit without
embarking upon an inquiry as to the correctness or otherwise of the said facts; thus the question of territorial jurisdiction must
be decided on the facts pleaded in the petition, the truth or otherwise of the averments made in the petition being immaterial).
5 Union of India v Advani Exports Ltd 2002 1 SCC 567 [LNIND 2001 SC 2467] [LNIND 2001 SC 2467] [LNIND 2001 SC 2467]
(mere service of a notice is not a fact giving rise to a cause of action, unless such notice is an integral part of the cause of
action); State of Rajasthan v Swaika Properties AIR 1985 SC 1289 [LNIND 1985 SC 114] [LNIND 1985 SC 114] [LNIND 1985
SC 114]; Indo Gulf Explosives Ltd v Uttar Pradesh State Industrial Development Corporation AIR 1999 Del 318 [LNIND 1999
DEL 132] [LNIND 1999 DEL 132] [LNIND 1999 DEL 132], Indo Gulf Explosives Ltd v Uttar Pradesh State Industrial
Development Corporation (1999) 78 Del LT 320, Indo Gulf Explosives Ltd v Uttar Pradesh State Industrial Development
Corporation (1999) 48 Del RJ 548.
6 Dinesh Chandra Gahtori v Chief of Army Staff 2001 9 SSC 525 (in the instant case, court martial proceedings were
conducted against the appellant in the State of Punjab; the Supreme Court ruled that dismissal of the writ petition filed by the
appellant before the High Court of Allahabad on the ground of lack of territorial jurisdiction, was not justified).
7 Navinchandra N Majithia v State of Maharashtra [2000] 3 ILR 1013, Navinchandra N Majithia v State of Maharashtra AIR
2000 SC 2966 [LNIND 2000 SC 1185] [LNIND 2000 SC 1185] [LNIND 2000 SC 1185](a 'First Information Report' (FIR) was
filed in Shillong, Meghalaya against the petitioner carrying on business in Bombay; the petitioner fled a writ petition in the High
Court of Bombay to transfer the FIR to Bombay on the ground that most of the facts on which the FIR was filed occurred in
Bombay and most of the investigation in the complaint had to take place in Bombay; the High Court of Bombay rejected the writ
petition; however, on appeal, the Supreme Court reversed the high courts order and ordered transfer of the FIR from Shillong to
Bombay; thus, the fact that a major portion of the investigation of the case under the FIR was conducted in Bombay, indicated
that the cause of action could not escape from the territorial limits of the Bombay high court).

COURT/[005.236] Power of review
[005.236] Power of review A high court has an inherent power to review its decision given under its writ
jurisdiction1. The grounds of review are similar to what have been stated in Code of Civil Procedure 19082.
The inherent powers, though ex facie plenary are not to be treated as unlimited or unabridged and must be
invoked on grounds analogous to the ones mentioned under the Code of Civil Procedure 1908 namely:
(1) discovery of new and important matter or evidence, which the party seeking the review could
not produce at the time when the earlier order sought to be reviewed was made, despite
exercise of due diligence; or
(2) existence of some mistake or error apparent on the face of the record; or
(3) existence of any other analogous ground3.
The abovementioned grounds are the limitations or hedges of a high court's power of review4. The power of
341 150
Page
review cannot be exercised on the ground that the decision was erroneous on merits, as review on merits is
the function of the appellate court. A high court can review an order if it was obtained by fraud or by stating
wrong facts or by abusing the process of court5.
1 Aribam Tuleshwar Sharma v Aribam Pishak Sharma AIR 1979 SC 1047, Aribam Tuleshwar Sharma v Aribam Pishak Sharma
(1979) 4 SCC 389, Aribam Tuleshwar Sharma v Aribam Pishak Sharma (1979) 2 SCJ 245(it is true that there is nothing in the
Constitution of India art 226 to preclude the high court from exercising the power of review, which inheres in every court of
plenary jurisdiction); Shivdeo Singh v State of Punjab AIR 1963 SC 1909 [LNIND 1961 SC 541] [LNIND 1961 SC 541] [LNIND
1961 SC 541]; Divisional Forest Officer v TU Cheriyan AIR 1982 Ker 363, Divisional Forest Officer v TU Cheriyan (1982) Ker
LT 682.
(1979) 4 SCC 389, Aribam Tuleshwar Sharma v Aribam Pishak Sharma (1979) 2 SCJ 245; Indian Oil Corpn Ltd v Deepak V
Shukla AIR 1998 Guj 8, Indian Oil Corpn Ltd v Deepak V Shukla (1997) 2 Guj LH 755; Gujarat University, Ahmedabad v Sonal
P Shah AIR 1982 Guj 58 [LNIND 1981 GUJ 94] [LNIND 1981 GUJ 94] [LNIND 1981 GUJ 94], Gujarat University, Ahmedabad v
Sonal P Shah (1982) (1) 23 Guj LR 171. See also Indian Bank v Satyam Fibres (India) Pvt Ltd AIR 1996 SC 2592, Indian Bank
v Satyam Fibres (India) Pvt Ltd (1996) 5 SCC 550, Indian Bank v Satyam Fibres (India) Pvt Ltd (1996) 7 JT 135. As to the
meaning of review see CIVIL PROCEDURE[65.773].
(1979) 4 SCC 389, Aribam Tuleshwar Sharma v Aribam Pishak Sharma (1979) 2 SCJ 245.
4 Gujarat University, Ahmedabad v Sonal P Shah AIR 1982 Guj 58 [LNIND 1981 GUJ 94] [LNIND 1981 GUJ 94] [LNIND 1981
GUJ 94], Gujarat University, Ahmedabad v Sonal P Shah (1982) (1) 23 Guj LR 171. See the Code of Civil Procedure 1908 O
47 r 1: CIVIL PROCEDURE[65.777].
5 A review application may be filed under the Constitution of India art 226 and before exercising the review power, notice
thereof must be given to the other party.

COURT/[005.237]
[005.237]Power of superintendence Writ proceedings fall on the original side of a high court and therefore,
an intra court appeal is possible from a single judge to a division bench. However, in case of
superintendence of high courts over other courts, such appeals are not permissible, as original jurisdiction is
not available1.
Where the fact justifies a party to pray for writ jurisdiction of a high court as well as to exploit the high courts
power of superintendence and a party chooses to exploit both the remedies, the high court must treat it as a
writ petition as this will protect petitioner's right to file an intra court appeal from the single judge to the
division bench2.
1 See the Constitution of India art 227 (see generally[80]CONSTITUTIONAL LAW). As to the power of superintendence of high
courts see [005.211].
2 Umaji Keshao Meshran v Radhikabai AIR 1986 SC 1272 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986 SC 77],
Umaji Keshao Meshran v Radhikabai (1986) Supp SCC 401 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986 SC 77],
Umaji Keshao Meshran v Radhikabai [1986] 1 SCR 731 [LNIND 1986 SC 77] [LNIND 1986 SC 77] [LNIND 1986 SC 77];
Lokmat Newspapers Pvt Ltd v Shan Prasad AIR 1999 SC 2423 [LNIND 1999 SC 592] [LNIND 1999 SC 592] [LNIND 1999 SC
592].

COURT/[005.238] Interim order
342 151
Page
[005.238] Interim order The high courts possess inherent powers to grant interim stay or make interim
orders, in matters pending before them under the writ petitions1.
When a writ petition is filed, the court may make an interim or interlocutory order. The purpose to grant such
an order is to preserve in status quo, the rights of the parties to the dispute, so that the writ proceedings do
not become infructuous or ineffective by any unilateral overt act by one side or the other during the pendency
of the writ proceedings2.
Hard and fast rules cannot be laid down for granting interim relief. The circumstances of each case
determine what interim orders to pass, along with various other factors3. The factors guiding the issue of
interim orders are generally the same as in case of grant of temporary injunctions4, such as, existence of a
prima facie case, an irreparable injury, balance of convenience, appropriateness of the case and the like5.
A high court has the power to grant a stay even though it has dismissed the petition and also refused leave
to appeal to the Supreme Court, if it is satisfied that it would be in the interest of justice to pass such an
order, until the parties have sufficient time to go to the Supreme Court for securing appropriate orders6.
Thus, a stay can be granted pending appeal. This jurisdiction of the high court to grant stay will be lost once
the appellate court is seized of the matter7.
A high court cannot give interim relief8, if it does not determine the rights of the parties involved in the
matter9. once an interim stay has been granted by a high court, the Supreme Court does not ordinarily
interfere with such an order. However, it may do so in an exceptional case, in public interest, if the
repercussions of the interlocutory order are incalculable and its basis obscure10. The tendency on part of
some high courts to grant to grant stay orders without being concerned about the balance of convenience,
the public interest and a host of other considerations has been criticised by the apex court11. The Supreme
Court has cautioned the high courts that ex parte injunctions be granted only under exceptional
circumstances12.
Normally, the high court must not, as a rule, in writ proceedings grant any stay of recovery of tax, save under
exceptional circumstances13. To avoid harassment to a taxpayer in case he ultimately succeeds in his
challenge to the levy of tax, the authority levying the impost is required to give an undertaking to refund or
adjust against future tax the illegal levy, without obligating him to institute a civil suit to claim the amount
already recovered from him14.
An interim stay must not be issued, unless notice is served on the other party along with the necessary
documents15. In addition to this, an interim stay will not be granted without notice to the party affected
thereby, except where the delay caused by notice entails serious hardship16. Where an ex parte interim
order has been made17, whether involving the fundamental rights or other rights and the party against whom
such an order has been made, makes an application to the high court for vacation of such an order and
furnishes a copy of the application to the other party, the high court must dispose of the application within
two weeks from the date of making the application or furnishing a copy to the other party, whichever is later.
If the application is not disposed of within that period, the interim order stands vacated18. This ensures that a
party, who obtains ex parte orders, is vigilant to get the order affirmed after giving an opportunity of hearing19
to the other side. If the party concerned fails to discharge his duty and prolongs the ex parte order, he does
so at his own peril20.
1 Devinder Singh v State of Himachal Pradesh through the Secretary, Election Department, Government of Himachal Pradesh
AIR 1976 HP 19, Devinder Singh v State of Himachal Pradesh through the Secretary, Election Department, Government of
Himachal Pradesh (1975) ILR HP 319, Devinder Singh v State of Himachal Pradesh through the Secretary, Election
Department, Government of Himachal Pradesh (1976) 1 Serv LR 120; The Director, Defence Research and Development
Laboratories, Hyderabad v C Pandu, Instrument Mechanic, Defence Research Development Laboratories, Hyderabad AIR 1977
AP 7 [LNIND 1976 AP 162] [LNIND 1976 AP 162] [LNIND 1976 AP 162], The Director, Defence Research and Development
Laboratories, Hyderabad v C Pandu, Instrument Mechanic, Defence Research Development Laboratories, Hyderabad (1975)
ILR HP 319, The Director, Defence Research and Development Laboratories, Hyderabad v C Pandu, Instrument Mechanic,
Defence Research Development Laboratories, Hyderabad (1976) 2 APLJ HC 274.
2 Kihoto Hollohon v Zachilhu AIR 1993 SC 412 [LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC 175], Kihoto
343 152
Page
Hollohon v Zachilhu (1992) 2 SCC 651, Kihoto Hollohon v Zachilhu (1992) 1 SPJ 565.
3 Rajasthan State Road Transport Corpn, Jaipur v Regional Transport Authority, Jaipur AIR 1977 Raj 136 [LNIND 1976 RAJ
76] [LNIND 1976 RAJ 76] [LNIND 1976 RAJ 76], Rajasthan State Road Transport Corpn, Jaipur v Regional Transport Authority,
Jaipur (1976) WLN 352, Rajasthan State Road Transport Corpn, Jaipur v Regional Transport Authority, Jaipur (1976) Raj LW
365.
4 As to the meaning of temporary injunctions see INJUNCTIONS[170.020].
5 Vithal Mahambre v Union of India AIR 1976 Goa 77.
6 The Director, Defence Research and Development Laboratories, Hyderabad v C Pandu, Instrument Mechanic, Defence
Research Development Laboratories, Hyderabad AIR 1977 AP 7 [LNIND 1976 AP 162] [LNIND 1976 AP 162] [LNIND 1976 AP
162], The Director, Defence Research and Development Laboratories, Hyderabad v C Pandu, Instrument Mechanic, Defence
Research Development Laboratories, Hyderabad (1975) ILR HP 319, The Director, Defence Research and Development
Laboratories, Hyderabad v C Pandu, Instrument Mechanic, Defence Research Development Laboratories, Hyderabad (1976) 2
APLJ HC 274.
7 Devinder Singh v State of Himachal Pradesh through the Secretary, Election Department, Government of Himachal Pradesh
AIR 1976 HP 19, Devinder Singh v State of Himachal Pradesh through the Secretary, Election Department, Government of
Himachal Pradesh (1975) ILR HP 319, Devinder Singh v State of Himachal Pradesh through the Secretary, Election
Department, Government of Himachal Pradesh (1976) 1 Serv LR 120.
8 As to interim relief see injunctions [170.017].
9 State of Orissa v Madan Gopal Rungta AIR 1952 SC 12 [LNIND 1951 SC 59] [LNIND 1951 SC 59] [LNIND 1951 SC 59],
State of Orissa v Madan Gopal Rungta [1952] SCR 28 [LNIND 1951 SC 59] [LNIND 1951 SC 59] [LNIND 1951 SC 59], State of
Orissa v Madan Gopal Rungta (1951) SCJ 764 (a person had a mining lease from the Government of orissa; the government
cancelled the lease and asked him to remove his assets from the mine within a fortnight; the lessee could not file a suit against
the government immediately to establish his rights because of the requirement, contained in Code of Civil Procedure s 80, of
giving a two months' notice to the government before filing his suit; he, therefore, filed a writ petition in the high court asking the
government to withdraw the notice and to forbear from acting upon it; the court took the view that there was a triable case, that
at that moment the petitioner had no alternative legal remedy, equally convenient, beneficial and effectual because he could not
file a suit till after the expiry of two months and that if he was not protected in the meantime, he would suffer an irreparable loss;
the court therefore, issued an interim order requiring the government to desist from disturbing the petitioner's possession for
three months; at the same time, it refused to express any opinion on the merits of the rival contentions of the parties; the order
was reversed by the Supreme Court in appeal because the high court could not give interim relief while declining to investigate
and pronounce upon the rights of the parties).
10 Union of India v Era Educational Trust AIR 2000 SC 1573 [LNIND 2000 SC 603] [LNIND 2000 SC 603] [LNIND 2000 SC
603], Union of India v Era Educational Trust AIR 2000 SCW 1281, Union of India v Era Educational Trust (2000) 5 SCC 57
[LNIND 2000 SC 603] [LNIND 2000 SC 603] [LNIND 2000 SC 603] (normally, a court would hesitate to interfere with an
interlocutory order; however, if it appears that the said order cannot be justified by any judicial standard or that the ends of
justice and the need to maintain judicial discipline requires the court to intervene, it may do so); Union of India v Swadeshi
Cotton Mills Co Ltd AIR 1978 SC 1818 [LNIND 1978 SC 237] [LNIND 1978 SC 237] [LNIND 1978 SC 237], Union of India v
Swadeshi Cotton Mills Co Ltd (1978) UJ SC 755, Union of India v Swadeshi Cotton Mills Co Ltd (1978) 48 Comp Cas 295.
11 Morgan Stanley Mutual Fund v Kartick Das 1994 4 SCC 225 [LNIND 1994 SC 546] [LNIND 1994 SC 546] [LNIND 1994 SC
546], Morgan Stanley Mutual Fund v Kartick Das (1994) 3 JT 654, Morgan Stanley Mutual Fund v Kartick Das (1994) 2 Scale
1121; Union of India v Era Educational Trust AIR 2000 SC 1573 [LNIND 2000 SC 603] [LNIND 2000 SC 603] [LNIND 2000 SC
[LNIND 2000 SC 603] [LNIND 2000 SC 603] [LNIND 2000 SC 603] (the Central Government refused to grant permission to the
petitioner society to establish a medical college; the high court, on a writ petition being filed, stayed the government order and
granted an interim mandatory order permitting the establishment of the college; the Supreme Court objected to the stay order;
the high court passed the order on the very same day the writ petition was presented to the high court without giving any
opportunity to the Central Government to intervene in the matter; the Supreme Court held this to be a violation of the principles
of natural justice; under the law, government permission was absolutely necessary and the proper course would have been to
ask the Central Government to reconsider the matter according to the relevant statutory norms; on appeal, therefore, the
Supreme Court quashed the interim order as it could not be justified by any judicial standard); Central Board of Secondary
Education v P Sunil Kumar AIR 1998 SC 2235 [LNIND 1998 SC 564] [LNIND 1998 SC 564] [LNIND 1998 SC 564], Central
Board of Secondary Education v P Sunil Kumar (1998) 5 SCC 377 [LNIND 1998 SC 564] [LNIND 1998 SC 564] [LNIND 1998
SC 564], Central Board of Secondary Education v P Sunil Kumar (1998) 4 JT 105; Bank of Maharashtra v Race Shipping and
Transport Co Pvt Ltd AIR 1995 SC 1368 [LNIND 1995 SC 251] [LNIND 1995 SC 251] [LNIND 1995 SC 251], Bank of
Maharashtra v Race Shipping and Transport Co Pvt Ltd (1995) 2 SCC 257; St John's Training Institute for Women, Madurai v
State of Tamil Nadu AIR 1994 SC 43 [LNIND 1993 SC 1139] [LNIND 1993 SC 1139] [LNIND 1993 SC 1139], St John's Training
Institute for Women, Madurai v State of Tamil Nadu (1994) 3 SCC 595, St John's Training Institute for Women, Madurai v State
of Tamil Nadu (1994) 3 SCJ 1 (the Supreme Court has cautioned the high courts not to pass interim orders directing the
students of unrecognised educational institutions to appear at the examinations, pending the final disposal of the writ petition,
as such interim orders affect the careers of many students); Guru Nanak Dev University v Parmindar Kumar Bansal AIR 1993
SC 2412, Guru Nanak Dev University v Parmindar Kumar Bansal (1993) 4 SCC 401; State of Maharashtra v Vikas Sahebrao
344 153
Page
Roundale AIR 1992 SC 1926 [LNIND 1992 SC 493] [LNIND 1992 SC 493] [LNIND 1992 SC 493], State of Maharashtra v Vikas
Sahebrao Roundale AIR 1992 SCW 2182, State of Maharashtra v Vikas Sahebrao Roundale (1992) 4 SCC 435 [LNIND 1992
12 State of Uttar Pradesh v Ramona Perhar AIR 1995 SC 241, State of Uttar Pradesh v Ramona Perhar (1994) 6 SCC 1
(passing of interim order, more particularly of a mandatory nature is neither a matter of course nor a matter of charity; the power
to grant interim orders is coupled with the duty to consider all relevant facts and legal principles relevant in that behalf); Central
Board of Secondary Education v P Sunil Kumar AIR 1998 SC 2235 [LNIND 1998 SC 564] [LNIND 1998 SC 564] [LNIND 1998
SC 564], Central Board of Secondary Education v P Sunil Kumar (1998) 5 SCC 377 [LNIND 1998 SC 564] [LNIND 1998 SC
564] [LNIND 1998 SC 564], Central Board of Secondary Education v P Sunil Kumar (1998) 4 JT 105 (the Supreme Court has
insisted that although Code of Civil Procedure o XXXIX, is not applicable as such to writ petitions, nevertheless, the high courts
must take into consideration the various principles laid down therein while granting interim relief in a writ petition). As to the
meaning of ex parte decree see CIVIL PROCEDURE [65.334]. As to ex parte injunctions see INJUNCTIONS[170.040].
13 Siliguri Municipality v Amalendu Das AIR 1984 SC 654, Siliguri Municipality v Amalendu Das (1984) 2 SCC 436 [LNIND
1984 SC 9] [LNIND 1984 SC 9] [LNIND 1984 SC 9], Siliguri Municipality v Amalendu Das (1984) SCC Tax 133.
14 Assistant Collector of center Excise, Chabdan Nagar, West Bengal v Dunlop India Ltd (1985) 1 SCC 260 [LNIND 1984 SC
367] [LNIND 1984 SC 367] [LNIND 1984 SC 367], Assistant Collector of center Excise, Chabdan Nagar, West Bengal v Dunlop
India Ltd (1985) 1 Andh LT 257 (where maters of public revenue are concerned, it is of importance to realise that interim orders
must not to be granted merely because a prima facie case has been shown; the balance of convenience must be clearly in
favour of making the interim order and there must not be a slightest indication of a likelihood of prejudice to public interest).
15 Law Commission of India, 'Report on Reform of Judicial Administration' (14th Report) p 665; Indian Law Institute, 'Judicial
Review of Writ Petitions' (1962) p 162.
16 Supreme Court Rules 1966 o 8, rr 1 and 2.
17 Such an order may be made by way of injunction, stay or in any other manner or in any proceedings relating to a petition
under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
20 P Raghunandanan v Regional Transport Authorty, Palakkad AIR 1996 Ker 115; Krishan Kumar Agarwala v Reserve Bank
of India AIR 1991 Cal 272 [LNIND 1990 CAL 131] [LNIND 1990 CAL 131] [LNIND 1990 CAL 131], Krishan Kumar Agarwala v
Reserve Bank of India (1991) 1 Cal LJ 316 [LNIND 1990 CAL 131] [LNIND 1990 CAL 131] [LNIND 1990 CAL 131], Krishan
Kumar Agarwala v Reserve Bank of India (1990) 94 Cal WN 919.

COURT/[005.239] Dismissal in limine
[005.239] Dismissal in limine A high court may, in the exercise of its discretion, decline to exercise its
extraordinary jurisdiction1 and dismiss a writ petition summarily in limine.
If the petitioner makes a frivolous, vexatious or prima facie unjust claim, a claim which may not appropriately
be tried or seeks a relief which the court cannot grant in a petition invoking the writ jurisdiction, the court may
decline to entertain the writ petition2.
If the court finds that the writ petition does not raise any triable issue, it is liable to be dismissed in limine.
However, when a writ petition (1) raises an arguable or triable issue; or (2) when a prima facie case is made
out; or (3) when the petitioner claims to have been aggrieved by the action of a public body on the plea that
the action is unlawful, high handed, arbitrary or prima facie unjust, he is entitled to a hearing3 on the merits
and dismissal of the petition in limine would be unjustified4.
A high court may reject a petition in limine if it feels that the petition raises complicated questions of fact that
could not be properly adjudicated upon in a writ proceeding5.
When a high court seeks to dismiss a writ petition in limine, it must give reasons for doing so6. Absence of
345 154
Page
reasons deprives the Supreme Court of knowing the circumstances that weighed with the high court to
dismiss the writ petition at the threshold. Also, the petitioner not knowing the reasons cannot challenge the
reasons in the higher forum7.
If a high court unjustifiably dismisses a petition in limine, the apex court may remand the same for fresh
disposal on merits8.
1 Ie the writ jurisdiction under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
2 Exen Industries v Chief Controller of Imports and Exports, New Delhi AIR 1971 SC 1025, Exen Industries v Chief Controller
of Imports and Exports, New Delhi (1971) UJ 219, Exen Industries v Chief Controller of Imports and Exports, New Delhi (73
Punj LR 569; Gunwant Kaur v Municipal Committee, Bhatinda AIR 1970 SC 802, Gunwant Kaur v Municipal Committee,
Bhatinda (1970) All LJ 78, Gunwant Kaur v Municipal Committee, Bhatinda (1970) BLJR 252; Prem Chandra v Collector,
Faizabad AIR 1970 SC 802; Century Spinning and Manufacturing Co Ltd v Ulhasnagar Municipal Council AIR 1971 SC 1021
[LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND 1970 SC 629], Century Spinning and Manufacturing Co Ltd v Ulhasnagar
Municipal Council (1970) 1 SCC 582 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND 1970 SC 629], Century Spinning and
Manufacturing Co Ltd v Ulhasnagar Municipal Council [1970] 3 SCR 854 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND
1970 SC 629].
4 Union of India v SP Anand AIR 1998 SC 2615 [LNIND 1998 SC 726] [LNIND 1998 SC 726] [LNIND 1998 SC 726], Union of
India v SP Anand (1998) 6 SCC 466 [LNIND 1998 SC 726] [LNIND 1998 SC 726] [LNIND 1998 SC 726], Union of India v SP
Anand (1998) 5 JT 359; Century Spinning and Manufacturing Co Ltd v Ulhasnagar Municipal Council AIR 1971 SC 1021
[LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND 1970 SC 629], Century Spinning and Manufacturing Co Ltd v Ulhasnagar
Municipal Council (1970) 1 SCC 582 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND 1970 SC 629], Century Spinning and
Manufacturing Co Ltd v Ulhasnagar Municipal Council [1970] 3 SCR 854 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND
1970 SC 629]; Himansu Kumar Bose v Jyoti Prokash Mitter AIR 1964 SC 1636 [LNIND 1963 SC 235] [LNIND 1963 SC 235]
[LNIND 1963 SC 235], Himansu Kumar Bose v Jyoti Prokash Mitter (1964) 1 SCA 347 [LNIND 1963 SC 235] [LNIND 1963 SC
235] [LNIND 1963 SC 235].
5 DD Suri v A K Barren AIR 1971 SC 175, DD Suri v A K Barren (1970) 3 SCC 313, DD Suri v A K Barren (1971) SCD 13;
Jagadish Prasad Shastri v State of Uttar Pradesh AIR 1971 SC 1224 [LNIND 1970 SC 413] [LNIND 1970 SC 413] [LNIND 1970
SC 413], Jagadish Prasad Shastri v State of Uttar Pradesh (1971) 2 SCJ 409 [LNIND 1970 SC 413] [LNIND 1970 SC 413]
[LNIND 1970 SC 413], Jagadish Prasad Shastri v State of Uttar Pradesh (1971) UJ SC 41; Ram Chandra Rai v State of
Madhya Pradesh AIR 1971 SC 128, Ram Chandra Rai v State of Madhya Pradesh (1970) 3 SCC 647, Ram Chandra Rai v
State of Madhya Pradesh (1970) SCD 972.
6 Gyan Chand v State of Haryana AIR 1971 SC 333, Gyan Chand v State of Haryana (1970) 3 SCC 270, Gyan Chand v State
of Haryana (1970) UJ SC 787 (the Government of Haryana superseded the Kaithal Municipality; the order was challenged
through a writ petition on the ground of mala fides on the part of the government; the high court dismissed the petition in limine;
the Supreme Court criticised this and observed that the writ petition must not have been dismissed in the manner in which it
was done without obtaining any return from the respondents and considering the same).
7 Hindustan Times Ltd v Union of India AIR 1998 SC 688 [LNIND 1998 SC 12] [LNIND 1998 SC 12] [LNIND 1998 SC 12],
Hindustan Times Ltd v Union of India AIR 1998 SCW 352, Hindustan Times Ltd v Union of India (1998) 2 SCC 242 [LNIND
8 Bachan Singh v State of Punjab AIR 1980 SC 1354 [LNIND 1980 SC 129] [LNIND 1980 SC 129] [LNIND 1980 SC 129],
Bachan Singh v State of Punjab (1980) 2 SCC 397, Bachan Singh v State of Punjab (1980) SCC (Cr) 174(the Supreme Court
emphasised that when important questions of law are raised in a writ petition, which can properly be determined by the high
court in exercise of its special jurisdiction under the Constitution of India art 226, it would not be proper for the high court to
dispose of the writ petition summarily; accordingly, the Supreme Court set aside the order of the high court in the instant case
and remanded the case to the high court for rehearing and fresh disposal of the case according to law); D R Aggarwal v New
Delhi Municipal Committee AIR 1999 Del 67 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690] [LNIND 1998 DEL 690], D R
Aggarwal v New Delhi Municipal Committee (1998) 47 DRJ 553 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690] [LNIND 1998
DEL 690], D R Aggarwal v New Delhi Municipal Committee (1999) 2 ESC 1116 [LNIND 1998 DEL 690] [LNIND 1998 DEL 690]
[LNIND 1998 DEL 690]; Subhash Chandra Choubey v State of Bihar, (1998) 8 SCC 714; Lleweln Furtado v Government of
Goa 1997 7 SCC 533 [LNIND 1997 SC 1356] [LNIND 1997 SC 1356] [LNIND 1997 SC 1356]; State of Punjab v Surinder
Kumar AIR 1992 SC 1593, State of Punjab v Surinder Kumar (1992) 1 SCC 489 [LNIND 1996 SC 2746] [LNIND 1996 SC 2746]
[LNIND 1996 SC 2746], State of Punjab v Surinder Kumar [1991] Supp 3 SCR 553; Sat Pal Chopra v Director cum Joint
Secretary AIR 1991 SC 970, Sat Pal Chopra v Director cum Joint Secretary (1991) Supp 2 SCC 352, Sat Pal Chopra v Director
cum Joint Secretary (1991) 5 JT 89; Gram Panchayat, Bari v Collector, Sonepat AIR 1991 SC 1082, Gram Panchayat, Bari v
Collector, Sonepat AIR 1991 SCW 934, Gram Panchayat, Bari v Collector, Sonepat (1991) Supp 2 SCC 407; Baldev Raj, Ex
Constable v State of Punjab AIR 1984 SC 986 [LNIND 1984 SC 70] [LNIND 1984 SC 70] [LNIND 1984 SC 70], Baldev Raj, Ex
Constable v State of Punjab (1984) Supp SCC 221 [LNIND 1984 SC 70], Baldev Raj, Ex Constable v State of Punjab (1984) 1
SLR 723; Jasbir Singh Dhillon v Union of India AIR 1981 SC 1765, Jasbir Singh Dhillon v Union of India (1981) 3 SCC 595,
346 155
Page
Jasbir Singh Dhillon v Union of India (1982) 2 SLR 111 (a petition was filed by the appellant contending that his compulsory
retirement by the Punjab and Sind Bank was contrary to law; the petition came up for preliminary hearing before a bench of two
judges who differed on the question whether it must dismissed in limine; it was then referred to a third Judge who dismissed it in
limine; on appeal, the Supreme Court held that the case must not have been dismissed in limine by the high court and it was
sent back to the high court for hearing and disposal); Tej Ram Bery v Union of India AIR 1972 SC 1966, Tej Ram Bery v Union
of India (1972) 4 SCC 811, Tej Ram Bery v Union of India (1972) SLR 148 (the appellant was compulsorily retired from service
after holding an inquiry; he filed a writ petition on the ground that the findings arrived at against him were unsupported by
evidence and that he had not been given reasonable opportunity to put forward his case; in support of these contentions, he
pleaded certain facts; however, the high court summarily rejected the writ petition; on appeal, the Supreme Court criticised the
high court's action and stated that the facts pleaded by the appellant required investigation; that it was not as if the facts
pleaded did not make out a case put forward by him; hence, the Supreme Court set aside the high court's order and sent the
case back to the high court with a direction that the petition be admitted and disposed of expeditiously according to law);
Century Spinning and Manufacturing Co Ltd v Ulhasnagar Municipal Council AIR 1971 SC 1021 [LNIND 1970 SC 629] [LNIND
1970 SC 629] [LNIND 1970 SC 629], Century Spinning and Manufacturing Co Ltd v Ulhasnagar Municipal Council (1970) 1
SCC 582 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND 1970 SC 629], Century Spinning and Manufacturing Co Ltd v
Ulhasnagar Municipal Council [1970] 3 SCR 854 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND 1970 SC 629] (the high
court dismissed the petition in limine; on appeal, the Supreme Court held the dismissal of the writ petition as unjustified and
emphasised that when a party claims to have been aggrieved by the action of a public body or authority on the ground that the
action was unlawful, high handed, arbitrary or unjust, he is entitled that his petition be heard on merits; here the petition raised
no complicated questions of fact and the questions of fact raised in the petition were elementary, the claim was not frivolous or
vexatious, nor did the high court give any reasons for dismissing the petition in limine; on the other hand, from the materials
placed before the Supreme Court, it felt satisfied that the action of the municipality was prima facie unjust; the Supreme Court
explained that a high court may, in its discretion, decline to exercise its writ jurisdiction, however, the discretion is judicial; the
court may decline to exercise its writ jurisdiction when the claim is frivolous or vexatious but not when the party claims to be
aggrieved by an act of an authority which is unlawful, high handed unjust or arbitrary; in such circumstances, the writ petitioner
is entitled to be heard on merits; the Supreme Court thus remanded the case to the high court for disposal according to law);
Exen Industries v Chief Controller of Imports and Exports, New Delhi AIR 1971 SC 1025, Exen Industries v Chief Controller of
Imports and Exports, New Delhi (1972) 3 SCC 176, Exen Industries v Chief Controller of Imports and Exports, New Delhi (1971)
UJ 219; Ram Chandra Rai v State of Madhya Pradesh AIR 1971 SC 128, Ram Chandra Rai v State of Madhya Pradesh (1970)
3 SCC 647, Ram Chandra Rai v State of Madhya Pradesh (1970) SCD 972 D D Suri v AK Barren AIR 1971 SC 175, D D Suri v
AK Barren (1970) 3 SCC 313, D D Suri v AK Barren (1971) SCD 13 (if it is found that the appellant has made reckless
allegations which are not founded on facts, it would be in the fitness of things to take suitable action against him; however, if on
the other hand it is found that there is substance in his allegations, there is no reason why the high court must not grant him the
necessary relief if a proper case is made out for doing so; it is possible that in a given case the proper course for a writ
petitioner is to seek relief by way of a suit if there are several disputed questions of fact but all these matters can be decided
only if the petition is admitted and it is heard after the return has been filed by the respondents).

COURT/[005.240] Moulding of relief
[005.240] Moulding of relief A high court is not bound to give relief merely in the form of a traditional writ
and can modulate the relief in accordance with the needs of the specific fact situation1.
The writ jurisdiction of high courts grants an extraordinary remedy that is essentially discretionary, although
founded on legal injury. It is open to the court exercising this flexible power to pass such order as public
interest dictates and equity projects2.
1 Gujarat Steel Tubes Ltd v Gujarat Steel Tubes, Mazdoor Sabha AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC
464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes, Mazdoor Sabha (1980) 2 SCC 593 [LNIND 1979
SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes, Mazdoor Sabha [1980] 2
SCR 146 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464](the Supreme Court gave a wider role to certiorari
and stated that although certiorari was of the Anglo Saxon vintage, it was not a carbon copy of the English processes; that
under the Constitution of India art 226, judicial power was not restricted when glaring injustice demanded affirmative action; that
while the writ jurisdiction under Constitution of India art 226 is not as large as an appeal but still the court must not fail to
intervene where a grave error has crept in; hence, when dismissal of workmen is found to be unjustified, the court does not
have to confine itself merely to quashing the order of the tribunal and asking it to reconsider the matter but the writ court can
itself wrest the discretionary power of the tribunal and order reinstatement of the discharged workers, keeping in view the
dictum that law is not dogmatic but pragmatics); B R Ramabhadriah v Secretary, Food and Agriculture Department, Andhra
Pradesh AIR 1981 SC 1653 [LNIND 1981 SC 321] [LNIND 1981 SC 321] [LNIND 1981 SC 321], B R Ramabhadriah v
Secretary, Food and Agriculture Department, Andhra Pradesh (1981) 3 SCC 528 [LNIND 1981 SC 321] [LNIND 1981 SC 321]
[LNIND 1981 SC 321], B R Ramabhadriah v Secretary, Food and Agriculture Department, Andhra Pradesh (1981) SCC (Lab)
347 156
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530; Grindlays Bank Ltd v Income Tax Officer CA,lcutta AIR 1980 SC 656 [LNIND 1980 SC 8] [LNIND 1980 SC 8] [LNIND
1980 SC 8], Grindlays Bank Ltd v Income Tax Officer CA,lcutta (1980) 2 SCC 191 [LNIND 1980 SC 8] [LNIND 1980 SC 8]
[LNIND 1980 SC 8], Grindlays Bank Ltd v Income Tax Officer CA,lcutta (1980) 1 SCJ 371.
A L Kalra v Project & Equipment Corporation of India Ltd AIR 1984 SC 1361 [LNIND 1984 SC 136] [LNIND 1984 SC 136]
[LNIND 1984 SC 136], A L Kalra v Project & Equipment Corporation of India Ltd (1984) 3 SCC 316 [LNIND 1984 SC 136]
[LNIND 1984 SC 136] [LNIND 1984 SC 136], A L Kalra v Project & Equipment Corporation of India Ltd [1984] 3 SCR 646
[LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136] (the Court quashed the dismissal order and ordered
reinstatement; however, when it came to the question of payment of salary for the period of his wrongful dismissal, the court
ordered only 50 percent of the back wages, excluding the period for which the employee had procured an alternative
employment; the reason for not paying full wages to the employee was that, on facts, his conduct could not be said to be
entirely in consonance with corporation culture).
Inder Mal Jain v Union of India AIR 1984 SC 415 [LNIND 1983 SC 369] [LNIND 1983 SC 369] [LNIND 1983 SC 369], Inder Mal
Jain v Union of India (1984) 1 SCC 361, Inder Mal Jain v Union of India (1984) UJ 855(certain provisions of the Railways Act
1890 and the rules made thereunder with regard to the licensing of travel agents were challenged as unconstitutional as they
were such that a travel agent with small means, who would cater to the lower class (class II) passengers, would not be able to
get the licence; the court found the law to be constitutional and directed the government to prepare a scheme for recognising
travel agents for catering the needs of class II passengers and the same to be put up before the court within three months).
Suman Gupta v State of Jammu & Kashmir AIR 1983 SC 1235 [LNIND 1983 SC 257] [LNIND 1983 SC 257] [LNIND 1983 SC
257], Suman Gupta v State of Jammu & Kashmir (1983) 4 SCC 339 [LNIND 1983 SC 257] [LNIND 1983 SC 257] [LNIND 1983
SC 257], Suman Gupta v State of Jammu & Kashmir [1983] 3 SCR 985 [LNIND 1983 SC 257] [LNIND 1983 SC 257] [LNIND
1983 SC 257] (in respect of public bodies, there is no law of limitation on the virtue of returning what was wrongly recovered
and nor is it palatable to our jurisprudence to refuse a prerogative writ on the negative plea of alternative remedy, since the root
principle of law married to justice, is ubi jus ibi remedium; the lapse of time may create some equities in favour of the
respondent or other persons, though the law may be in favour of the petitioner; in such a situation the court may not disturb the
status quo; in the instant case, the Supreme Court declared the basis adopted by the state government in admissions to
medical colleges to be wrong, yet allowed the admissions to continue to stand as the admitted students had already covered a
substantial part of their course of their studies); P Rajendran v State of Madras AIR 1968 SC 1012 [LNIND 1968 SC 10]
[LNIND 1968 SC 10] [LNIND 1968 SC 10], P Rajendran v State of Madras (1968) 2 SCJ 801. See generally LIMITATION OF
ACTIONS[205].
Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35],
Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35]
(while quashing a disciplinary order on the ground of failure of natural justice, the Court also prohibited a fresh hearing by the
disciplinary authority and even ordered reinstatement); Anup Jaiswal v Union of India AIR 1984 SC 636 [LNIND 1984 SC 21]
[LNIND 1984 SC 21] [LNIND 1984 SC 21], Anup Jaiswal v Union of India (1984) 2 SCC 369 [LNIND 1984 SC 21] [LNIND 1984
SC 21] [LNIND 1984 SC 21], Anup Jaiswal v Union of India (1984) SCC (Lab) 256; The Managing Director, Uttar Pradesh
Warehousing Corpn v Vijay Narain Vajpayee AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13],
The Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narain Vajpayee (1980) 3 SCC 459 [LNIND 1980 SC 13]
(1980) 1 SCWR 381 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13].
Azad Rikshaw Pullers Union, Amritsar v State of Punjab AIR 1981 SC 14 [LNIND 1980 SC 313] [LNIND 1980 SC 313] [LNIND
1980 SC 313], Azad Rikshaw Pullers Union, Amritsar v State of Punjab [1981] 1 SCR 366 [LNIND 1980 SC 313] [LNIND 1980
SC 313] [LNIND 1980 SC 313], Azad Rikshaw Pullers Union, Amritsar v State of Punjab (1981) SC (Cr) 43 (the Supreme Court
itself framed the scheme so that the statute meant for the benefit of the rickshaw pullers could be made workable).
Shiv Shankar Dal Mills v State of Haryana AIR 1980 SC 1037 [LNIND 1979 SC 444] [LNIND 1979 SC 444] [LNIND 1979 SC
1979 SC 267](the market committee of a mandi, a statutory body, increased the market fees from 2 percent to 3 percent and
the petitioners paid the same; the Supreme Court held the increase ultra vires and the committee thus became liable to refund
the illegal receipts to those from whom the money had been collected; to meet the situation, the Supreme Court devised a
scheme to enable the people who had paid the excess amount to get back the refund and justified this approach by saying that
the Constitution of India art 226 grants an extraordinary discretionary remedy.
State of Madhya Pradesh v Ram Ratan AIR 1980 SC 1650 [LNIND 1980 SC 247] [LNIND 1980 SC 247] [LNIND 1980 SC 247],
State of Madhya Pradesh v Ram Ratan (1980) SCC (Lab) 478, State of Madhya Pradesh v Ram Ratan (1980) UJ 479 (the
plaintiff was compulsorily retired by the government; he won his case in the courts below but the Supreme Court interpreted the
law against him; the court, however, refused to set aside the order of the high court on the ground of social justice).
State of Kerala v TP Roshana AIR 1979 SC 765 [LNIND 1979 SC 39] [LNIND 1979 SC 39] [LNIND 1979 SC 39], State of
Kerala v TP Roshana (1979) 1 SCC 572 [LNIND 1979 SC 39] [LNIND 1979 SC 39] [LNIND 1979 SC 39], State of Kerala v TP
Roshana [1979] 2 SCR 974 [LNIND 1979 SC 39] [LNIND 1979 SC 39] [LNIND 1979 SC 39] (when certain admissions were
found to be unconstitutional, the court ordered that seats in the medical colleges be increased by 30 so that all those who were
unjustifiably left out could be admitted without disturbing those who had already been admitted).
The Nawabganj Sugar Mills Co v Union of India AIR 1976 SC 1152 [LNIND 1975 SC 343] [LNIND 1975 SC 343] [LNIND 1975
SC 343], The Nawabganj Sugar Mills Co v Union of India (1976) 1 SCC 120 [LNIND 1975 SC 343] [LNIND 1975 SC 343]
348 157
Page
[LNIND 1975 SC 343], The Nawabganj Sugar Mills Co v Union of India [1976] 1 SCR 803 [LNIND 1975 SC 343] [LNIND 1975
SC 343] [LNIND 1975 SC 343], The Nawabganj Sugar Mills Co v Union of India [1976] 1 SCR 803 [LNIND 1975 SC 343]
[LNIND 1975 SC 343] [LNIND 1975 SC 343] (the State pegged down the price of levy sugar; the appellants mill owners
impeached the validity of the control order and obtained stay of the order from the high court; under cover of the court's stay
order, on bank guarantee for the excess price being furnished to the court, the appellants sold sugar at free market rates;
eventually the high court upheld the control of price and the question of restoring the unjust enrichment arose; the Supreme
Court laid down guidelines as to how the excess amount charged by the mills was to be returned to the consumers from whom
higher prices had been charged).
Municipal Board, Pratapgarh v Mahendra Singh Chawla AIR 1982 SC 1493, Municipal Board, Pratapgarh v Mahendra Singh
Chawla (1982) 3 SCC 331, Municipal Board, Pratapgarh v Mahendra Singh Chawla (1982) UJ 626; State of Madhya Pradesh v
Ram Ragubir Prasad Agarwal AIR 1979 SC 888 [LNIND 1979 SC 102] [LNIND 1979 SC 102] [LNIND 1979 SC 102], State of
Madhya Pradesh v Ram Ragubir Prasad Agarwal (1979) 4 SCC 686 [LNIND 1979 SC 102] [LNIND 1979 SC 102] [LNIND 1979
SC 102], State of Madhya Pradesh v Ram Ragubir Prasad Agarwal [1979] 3 SCR 41; Punjab Beverages Pvt Ltd v Suresh
Chand AIR 1978 SC 995 [LNIND 1978 SC 65] [LNIND 1978 SC 65] [LNIND 1978 SC 65], Punjab Beverages Pvt Ltd v Suresh
Chand (1978) 2 SCC 144 [LNIND 1978 SC 65] [LNIND 1978 SC 65] [LNIND 1978 SC 65], Punjab Beverages Pvt Ltd v Suresh
Chand (1978) 3 SCR 370 [LNIND 1978 SC 65] [LNIND 1978 SC 65] [LNIND 1978 SC 65].
2 Shiv Shankar Dal Mills v State of Haryana AIR 1980 SC 1037 [LNIND 1979 SC 444] [LNIND 1979 SC 444] [LNIND 1979 SC
1979 SC 267].

COURT/[005.241] Grant of compensation
[005.241] Grant of compensation In certain situations, high courts grant compensation to the victims of
government lawlessness or negligence in writ proceedings. Though there is nothing in the Constitution of
India that speaks of compensation being demanded by a court, a flexible interpretation by the Supreme
Court has led to award of compensation where a person's fundamental or legal right has been infringed1.
However, where, disputed questions of fact arise, a writ petition before a high court is not a proper remedy2.
1 Nilabati Behera Alias Lalita Behera v State of Orissa AIR 1993 SC 1960 [LNIND 1993 SC 1167] [LNIND 1993 SC 1167]
[LNIND 1993 SC 1167], Nilabati Behera Alias Lalita Behera v State of Orissa (1993) 2 SCC 746 [LNIND 1993 SC 1167] [LNIND
1993 SC 1167] [LNIND 1993 SC 1167], Nilabati Behera Alias Lalita Behera v State of Orissa (1993) 2 SCJ 487; Chairman,
Railway Board v Chandrima Das AIR 2000 SC 988 [LNIND 2000 SC 182] [LNIND 2000 SC 182] [LNIND 2000 SC 182],
Chairman, Railway Board v Chandrima Das (2000) 2 SCC 465 [LNIND 2000 SC 182] [LNIND 2000 SC 182] [LNIND 2000 SC
182], Chairman, Railway Board v Chandrima Das (2000) 3 SCJ 1; Murti Devi v State of Delhi 1998 9 SCC 604; D K Basu v
State of West Bengal AIR 1997 SC 610 [LNIND 1996 SC 2177] [LNIND 1996 SC 2177] [LNIND 1996 SC 2177], D K Basu v
State of West Bengal (1997) SCC (Cr) 92, D K Basu v State of West Bengal (1997) 1 JT 1(the Supreme Court granted
compensation for the custodial death of a person as this was held to be an infringement of the Constitution of India art 21);
Rudal Sah v State of Bihar AIR 1993 SC 1086, Rudal Sah v State of Bihar (1983) 4 SCC 141 [LNIND 1983 SC 181] [LNIND
1983 SC 181] [LNIND 1983 SC 181], Rudal Sah v State of Bihar [1983] 3 SCR 508 [LNIND 1983 SC 181] [LNIND 1983 SC 181]
[LNIND 1983 SC 181]; Kumari v State of Tamil Nadu AIR 1992 SC 2069, Kumari v State of Tamil Nadu (1992) 2 SCC 223(a six
year old child fell in a deep sewerage tank and died; the tank was not covered with a lid and was left open; on a writ petition
being filed by the mother of the child in the high court under Constitution of India art 226, compensation of Rs 50,000 was
awarded to her); SAHELI, A Womens Resource Centre through Nalini Bhanot v Comr of Police AIR 1990 SC 513, SAHELI, A
Womens Resource Centre through Nalini Bhanot v Comr of Police (1990) 1 SCC 422, SAHELI, A Womens Resource Centre
through Nalini Bhanot v Comr of Police (1990) SCC (Cr) 145; Bhim Singh, MLA v State of Jammu & Kashmir AIR 1986 SC 494
[LNIND 1985 SC 350] [LNIND 1985 SC 350] [LNIND 1985 SC 350], Bhim Singh, MLA v State of Jammu & Kashmir (1985) 4
SCC 677 [LNIND 1985 SC 350] [LNIND 1985 SC 350] [LNIND 1985 SC 350], Bhim Singh, MLA v State of Jammu & Kashmir
(1986) UJ 458; Sebastian M Hongrey v Union of India AIR 1984 SC 571 [LNIND 1983 SC 352] [LNIND 1983 SC 352] [LNIND
1983 SC 352], Sebastian M Hongrey v Union of India (1984) 3 SCC 339 [LNIND 1984 SC 57] [LNIND 1984 SC 57] [LNIND
1984 SC 57], Sebastian M Hongrey v Union of India (1984) SCC (Cr) 87; Rajendra Singh v Usha Rani AIR 1984 SC 956
[LNIND 1984 SC 57] [LNIND 1984 SC 57] [LNIND 1984 SC 57], Rajendra Singh v Usha Rani (1984) 3 SCC 339 [LNIND 1984
SC 57] [LNIND 1984 SC 57] [LNIND 1984 SC 57], Rajendra Singh v Usha Rani (1984) UJ 313; Shakuntala Sharma v State of
Uttar Pradesh AIR 2000 All 219 [LNIND 2000 ALL 22] [LNIND 2000 ALL 22] [LNIND 2000 ALL 22], Shakuntala Sharma v State
of Uttar Pradesh (2000) All LJ 1550, Shakuntala Sharma v State of Uttar Pradesh (2000) 2 All WC 1455 (after the husband
underwent vasectomy operation, his wife conceived; this happened because of the negligence of the doctor in the government
hospital in performing the vasectomy; the High Court of Allahabad ruled that in the circumstances, it was the duty of the State to
349 158
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maintain the child as the said lady never wanted another child; the court directed the state government to deposit Rs 50,000 in
a bank for the purpose).
2 Tamil Nadu Electricity Board v Sumathi AIR 2000 SC 1603 [LNIND 2000 SC 750] [LNIND 2000 SC 750] [LNIND 2000 SC
750], Tamil Nadu Electricity Board v Sumathi AIR 2000 SCW 1717, Tamil Nadu Electricity Board v Sumathi (2000) 4 SCC 543

ADMINISTRATIVE LAW/19. APPEAL TO SUPREME COURT BY SPECIAL LEAVE/(1) GRANT OF
SPECIAL LEAVE TO APPEAL/[005.242] Introduction
[005.242] Introduction The Constitution empowers the Supreme Court to grant, in its discretion, special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed
or made by any court or tribunal in the territory of India1. The scope of the abovementioned provision is
comprehensive and extensive, with only the Supreme Court entitled to impose any limits on its jurisdiction to
grant special leave to appeal from any judgment2. However, any judgment or order passed by a tribunal
functioning under a law relating to the armed forces is excluded from the scope of the abovementioned
provision of the Consitution3.
The nature of the abovementioned power accorded by the Constitution is special or residuary and is
exercisable outside the purview of ordinary law, in cases where the needs of justice demand interference by
the Supreme Court of the land4. The Supreme Court is vested with a plenary jurisdiction in the matter of
entertaining and hearing appeals, by granting of special leave against any kind of judgment or order made by
a court or tribunal in any cause or matter and the powers could be exercised in spite of the specific
provisions for appeal contained in the Constitution or other laws5. Nevertheless, the Court will not grant
special leave, unless it is shown that exceptional and special circumstances exist, that substantial and grave
injustice has been done and that the case in question presents features of sufficient gravity to warrant a
review of the decision appealed against6.
The discretionary power to grant special leave against any judgment is available to the Court both at the
stage of grant of special leave and at the time of hearing the appeal7. Hence, only the issues urged at the
preliminary stage can be urged during the final hearing of the appeal8.
1 The Constitution of India art 136(1): see[80]CONSTITUTIONAL LAW (notwithstanding anything in this chapter, the Supreme
Court may, in its discretion grant special leave to appeal from any judgment, decree, determination, sentence or order in any
case or matter passed or made by any court or tribunal in the territory of India; the power of the Supreme Court under art 136 is
unaffected by arts 132, 133, 134 and 134(A)).
2 See Kunhayammed v State of Kerala [2000] 3 LRI 523, Kunhayammed v State of Kerala AIR 2000 SC 2587 [LNIND 2000 SC
933] [LNIND 2000 SC 933] [LNIND 2000 SC 933], Kunhayammed v State of Kerala (2000) 6 SCC 359 [LNIND 2000 SC 933]
[LNIND 2000 SC 933] [LNIND 2000 SC 933]. As to scope see [005.243] and following.
3 The Constitution of India art 136(2): see[80]CONSTITUTIONAL LAW (the Supreme Court has suggested that appeals be
provided for from court martial to the courts; absence of even one appeal with power to review evidence, legal formulation,
conclusion and adequacy or otherwise of punishment is a glaring lacuna in a country where a counterpart civilian convict can
prefer appeal after appeal to hierarchy of courts; Courts-Martial are however subject to the writ jurisdiction of the high court
under art 226): see also [005.222].
5 Durga Shankar Mehta v Raghuraj Singh AIR 1954 SC 520 [LNIND 1954 SC 97] [LNIND 1954 SC 97] [LNIND 1954 SC 97],
Durga Shankar Mehta v Raghuraj Singh [1955] 1 SCR 267 [LNIND 1954 SC 97] [LNIND 1954 SC 97] [LNIND 1954 SC 97],
Durga Shankar Mehta v Raghuraj Singh (1954) SCJ 723.
6 See Pritam Singh v State AIR 1950 SC 169 [LNIND 1950 SC 18] [LNIND 1950 SC 18] [LNIND 1950 SC 18], Pritam Singh v
State [1950] SCR 453.
7 See [005.243] note 2 below.

350 159
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8 D Taherakhatoon (decd) by lr's v Salambin Mohammad [1999] 1 LRI 934, D Taherakhatoon (decd) by lr's v Salambin
Mohammad AIR 1999 SC 1104 [LNIND 1999 SC 207] [LNIND 1999 SC 207] [LNIND 1999 SC 207], D Taherakhatoon (decd) by
lr's v Salambin Mohammad (1999) 2 SCC 635 [LNIND 1999 SC 207] [LNIND 1999 SC 207] [LNIND 1999 SC 207] (although
special leave is granted, the discretionary power which vested in the court at the stage of the special leave petition continues to
remain with the court even at the stage when the appeal comes up for hearing; this principle is applicable to all kinds of special
leave petitions admitted under art 136, irrespective of the subject matter).

SPECIAL LEAVE TO APPEAL/[005.243] Nature
[005.243] Nature The comprehensive nature of the power of the Supreme Court to grant special leave to
appeal from any judgment is evident from the following salient features of the article 136 of the Constitution:
(1) The provision does not confer a right of appeal upon any party and only confers on the
Supreme Court an overriding and extensive power to grant special leave appeal. Hence, a
discretion is vested in the Supreme Court to intervene by granting leave to a petitioner to enter
in its appellate jurisdiction not open otherwise and as of right1. Where special leave is granted,
the discretionary power vested in the Supreme Court continues to remain with the court even at
the stage when the appeal comes up for hearing2.
(2) The Supreme Court may disregard the limitations on its appellate jurisdiction3 and hear
appeals4.
(3) The plenary jurisdiction of the Court to grant leave and hear appeals against any order of a
court or tribunal5, confers power of judicial superintendence over all courts and tribunals in the
territory of India including subordinate courts of magistrate and district judge6. Moreover, the
Supreme Court, under its abovementioned jurisdiction, may hear appeals from orders and
determination of any tribunal other than a military tribunal.
(4) The Supreme Court is empowered to hear an appeal even from an interlocutory or an interim
order. However, the Court does not ordinarily grant leave to appeal from an interlocutory order,
although it may do so in an exceptional case7. Where, it appears prima facie that the order in
question cannot be justified by any judicial standard, the ends of justice and the need to
maintain judicial discipline require the Supreme Court to intervene8.
(5) The term 'determination' in the provision signifies an effective expression of opinion which ends
a controversy or a dispute by an authority to whom it is submitted under a valid law for disposal.
However, the determination or order sought to be appealed from must have the character of a
judicial adjudication9.
(6) The nature of proceedings from which the Supreme Court may hear appeals is not defined and,
hence, may hear appeals in proceedings of any nature, inter alia, civil, criminal, income-tax,
revenue or labour disputes10.
(7) The Supreme Court may hear an appeal even where the legislature declares the decision of a
court or tribunal as final. For instance, the Supreme Court heard an appeal from an order of the
Railway Rates Tribunal, Madras, despite Railways Act 1890, laying down that the decision of
the tribunal will be final11.
(8) The scope of the special appellate jurisdiction of the Supreme Court is flexible and the matter
lies within the complete discretion of the Supreme Court and the only limit upon it is the
"wisdom and good sense of the Judges" of the Court12.
(9) It is within the Court's discretion to grant leave to appeal to a person who although not a party
to the decision appealed against, but is adversely affected by the impugned decision13.
(10) The only limitation imposed implicitly on the extraordinary power is that it may be exercised
sparingly and with caution and only in special and extraordinary situations14. Hence, the power
to grant special leave to appeal may be invoked, in special circumstances, when there is an
injustice done to a party in a proceeding before a court or tribunal, or there is a miscarriage of
justice, or when a question of law of general public importance arises, or a decision shocks the
351 160
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conscience of the Court15. Where the courts express different views on a specific question of
law, leading to uncertainty as to the state of law, the Supreme Court may intervene to settle the
legal position16.
Hence, the Supreme Court by virtue of it being not only a court of law but a court of equity as well17, will
entertain special leave petitions and grant leave only where a substantial question of law of general or public
importance is involved or there is manifest injustice resulting from the impugned order or judgment18.
Furthermore, a petition for grant of special leave to appeal may be rejected19:
(i) if it is time-barred;
(ii) due to defective presentation;
(iii) if the petitioner lacks locus standi to file the petition;
(iv) if the conduct of the petitioner disentitles him to any indulgence by the court;
(v) if the question raised in the petition is not considered fit for consideration by the court or does
not deserve to be dealt with by the Supreme Court.
Special leave once granted can be revoked by the Court, if the respondent brings to the notice of the Court
facts which would justify such revocation20.
1 State of Bombay v Rusy Mistry AIR 1960 SC 391, State of Bombay v Rusy Mistry (1960) Cr LJ 532; Ashok Nagar Welfare
Association v RK Sharma AIR 2002 SC 335 [LNIND 2001 SC 2857] [LNIND 2001 SC 2857] [LNIND 2001 SC 2857]at 339;
Laxman Marotrao Navakhare v Keshavrao Eknathsa Tapar AIR 1993 SC 2596 [LNIND 1993 SC 180] [LNIND 1993 SC 180]
[LNIND 1993 SC 180], Laxman Marotrao Navakhare v Keshavrao Eknathsa Tapar (1993) 2 SCC 270 [LNIND 1993 SC 180]
[LNIND 1993 SC 180] [LNIND 1993 SC 180], Laxman Marotrao Navakhare v Keshavrao Eknathsa Tapar [1993] 2 SCR 167
[LNIND 1993 SC 180] [LNIND 1993 SC 180] [LNIND 1993 SC 180]; Hari Singh v State of Haryana 1993 3 SCC 114 [LNIND
1993 SC 367] [LNIND 1993 SC 367] [LNIND 1993 SC 367], Hari Singh v State of Haryana (1993) 3 JT 73, Hari Singh v State of
Haryana (1993) 2 Scale 490; Municipal Board, Pratabgarh v Mahendra Singh Chawla AIR 1982 SC 1493, Municipal Board,
Pratabgarh v Mahendra Singh Chawla (1982) 3 SCC 331.
lr's v Salambin Mohammad (1999) 2 SCC 635 [LNIND 1999 SC 207] [LNIND 1999 SC 207] [LNIND 1999 SC 207] (Article
136(1) involves two steps, ie (i) granting special leave to appeal; and (ii) hearing the appeal. A petition seeking grant of special
leave to appeal and the appeal it self, although both the stages are dealt with by art 136 they are two distinctly separate stages.
The first stage continues up to the disposal of prayer for special leave to file an appeal. The second stage commences if and
when the leave to appeal is granted and special leave petition is converted into an appeal. At the first stage, while hearing the
petition for special leave to appeal, the Supreme Court considers the question whether the petitioner must be granted such
leave or not. At this stage, the Court does not exercise its appellate jurisdiction; it merely exercises its discretionary jurisdiction
to grant or not to grant leave to appeal. If the petition seeking leave to appeal is dismissed, it only means that the Court feels
that a case for invoking its appellate jurisdiction has not been made out. If leave to appeal is granted, then the appellate
jurisdiction of the Court gets invoked. Subsequently, the appeal is heard on merits): see also 'courts discretion' [005.245].
3 Ie under the Constitution of India arts 132-134: see[80]CONSITUTIONAL LAW (Articles 132-134 provide for regular appeals
from the high courts to the Supreme Court; but certain cases may remain outside the purview of these Articles. The power of
the Supreme Court under art 136 is unaffected by articles 132, 133, 134 and article 134A in view of the expression
'notwithstanding anything in this Chapter' occurring in art 136).
4 4 Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat AIR 1991 SC 2176 [LNIND 1991 SC 446]
[LNIND 1991 SC 446] [LNIND 1991 SC 446], Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat
(1991) 4 SCC 406 [LNIND 1991 SC 446] [LNIND 1991 SC 446] [LNIND 1991 SC 446], Delhi Judicial Service Association, Tis
Hazari Court, Delhi v State of Gujarat [1991] 3 SCR 936 [LNIND 1991 SC 446] [LNIND 1991 SC 446] [LNIND 1991 SC 446];
Achyut Adhicary v State of West Bengal AIR 1963 SC 1039 [LNIND 1962 SC 165] [LNIND 1962 SC 165] [LNIND 1962 SC 165],
Achyut Adhicary v State of West Bengal [1963] 2 SCR 47 [LNIND 1962 SC 165] [LNIND 1962 SC 165] [LNIND 1962 SC 165],
Achyut Adhicary v State of West Bengal (1963) 2 Cr LJ 59; K Manickchand v Elias Saleh Mohamed Sait AIR 1969 SC 751
[LNIND 1968 SC 370] [LNIND 1968 SC 370] [LNIND 1968 SC 370], K Manickchand v Elias Saleh Mohamed Sait (1969) 1 SCC
206, K Manickchand v Elias Saleh Mohamed Sait [1969] 2 SCR 1061 [LNIND 1968 SC 370] [LNIND 1968 SC 370] [LNIND
1968 SC 370].
5 Rajender Kumar Jain v State through Special Police Establishment AIR 1980 SC 1510 [LNIND 1980 SC 228] [LNIND 1980
SC 228] [LNIND 1980 SC 228], Rajender Kumar Jain v State through Special Police Establishment (1980) 3 SCC 435 [LNIND
1980 SC 228] [LNIND 1980 SC 228] [LNIND 1980 SC 228], Rajender Kumar Jain v State through Special Police Establishment
[1980] 3 SCR 982 [LNIND 1980 SC 228] [LNIND 1980 SC 228] [LNIND 1980 SC 228]. See also Usha K Pillai v Raj K Srinivas
AIR 1993 SC 2090 [LNIND 1993 SC 418] [LNIND 1993 SC 418] [LNIND 1993 SC 418], Usha K Pillai v Raj K Srinivas (1993) 3
352 161
Page
SCC 208 [LNIND 1993 SC 418] [LNIND 1993 SC 418] [LNIND 1993 SC 418], Usha K Pillai v Raj K Srinivas [1993] 3 SCR 467
(the word 'order' in art 136(1) has not been qualified by the adjective 'final' as is the case in arts 132, 133 and 134; art 136 uses
the phrase 'any court' and thus empowers the Supreme Court to hear appeals from judgments given not only by the high courts
but even by a subordinate court, if the situation demands that its order should be quashed or reversed even without going
through the usual procedure of filing an appeal in the high court; the Supreme Court has special residuary power to entertain
appeal against any order of any court in the country).
6 Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat AIR 1991 SC 2176 [LNIND 1991 SC 446]
Hazari Court, Delhi v State of Gujarat [1991] 3 SCR 936 [LNIND 1991 SC 446] [LNIND 1991 SC 446] [LNIND 1991 SC 446].
7 Union of India v Swadeshi Cotton Mills Co Ltd AIR 1978 SC 1818 [LNIND 1978 SC 237] [LNIND 1978 SC 237] [LNIND 1978
SC 237], Union of India v Swadeshi Cotton Mills Co Ltd (1978) 4 SCC 295 [LNIND 1978 SC 237] [LNIND 1978 SC 237] [LNIND
1978 SC 237]; United Commercial Bank v Bank of India AIR 1981 SC 1426 [LNIND 1981 SC 186] [LNIND 1981 SC 186]
[LNIND 1981 SC 186], United Commercial Bank v Bank of India (1981) 2 SCC 766 [LNIND 1981 SC 186] [LNIND 1981 SC 186]
[LNIND 1981 SC 186], United Commercial Bank v Bank of India [1981] 3 SCR 300 [LNIND 1981 SC 186] [LNIND 1981 SC 186]
[LNIND 1981 SC 186]; Joginder Nath Gupta v Satish Chander Gupta 1983 2 SCC 325, Joginder Nath Gupta v Satish Chander
Gupta (1983) 1 Scale 770; Uttar Pradesh Rajya Krishi Utpadan Mandi Parishad v Sanjiv Rajan 1993 Supp 3 SCC 483, Uttar
Pradesh Rajya Krishi Utpadan Mandi Parishad v Sanjiv Rajan (1993) 2 JT 550, Uttar Pradesh Rajya Krishi Utpadan Mandi
Parishad v Sanjiv Rajan (1993) 2 Scale 330; Baby Samuel v Tukaram Laxman Sable 1995 Supp 4 SCC 215, Baby Samuel v
Tukaram Laxman Sable (1995) 6 JT 78, Baby Samuel v Tukaram Laxman Sable (1995) 4 Scale 684; Southern Petrochemical
Industries Corpn Ltd v Madras Refineries Ltd AIR 1998 SC 302 [LNIND 1997 SC 1358] [LNIND 1997 SC 1358] [LNIND 1997
SC 1358], Southern Petrochemical Industries Corpn Ltd v Madras Refineries Ltd (1998) 9 SCC 209 [LNIND 1997 SC 1358]
[LNIND 1997 SC 1358] [LNIND 1997 SC 1358], Southern Petrochemical Industries Corpn Ltd v Madras Refineries Ltd (1997) 8
JT 598 [LNIND 1997 SC 1358] [LNIND 1997 SC 1358] [LNIND 1997 SC 1358]; Godfrey Phillips India Ltd v Girnar Food and
Beverages (Pvt) Ltd (1998) 9 SCC 531.
603], Union of India v Era Educational Trust (2000) 5 SCC 57 [LNIND 2000 SC 603] [LNIND 2000 SC 603] [LNIND 2000 SC
603], Union of India v Era Educational Trust (2000) 4 JT 241.
603], Union of India v Era Educational Trust (2000) 5 SCC 57 [LNIND 2000 SC 603] [LNIND 2000 SC 603] [LNIND 2000 SC
603], Union of India v Era Educational Trust (2000) 4 JT 241) ('determination' or 'order' must be judicial or quasi-judicial and a
purely administrative or executive direction cannot be the subject matter of appeal to the Supreme Court; Jaswant Sugar Mills
Ltd Meerut v Lakshmi Chand AIR 1963 SC 677 [LNIND 1962 SC 308] [LNIND 1962 SC 308] [LNIND 1962 SC 308], Jaswant
Sugar Mills Ltd Meerut v Lakshmi Chand [1963] Supp 1 SCR 242, Jaswant Sugar Mills Ltd Meerut v Lakshmi Chand (1963) 1
LLJ 524 [LNIND 1962 SC 308] [LNIND 1962 SC 308] [LNIND 1962 SC 308] (the essence of the authority of the Supreme Court
being judicial, the Court does not exercise administrative or executive powers).
10 Pritam Singh v State AIR 1950 SC 169 [LNIND 1950 SC 18] [LNIND 1950 SC 18] [LNIND 1950 SC 18], Pritam Singh v
State [1950 SCR 453.
11 In Raigarh Jute Mills Ltd v Eastern Railway AIR 1958 SC 525 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC
30], Raigarh Jute Mills Ltd v Eastern Railway [1959] SCR 236 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC 30],
Raigarh Jute Mills Ltd v Eastern Railway (1958) SCJ 720 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC 30](the
provision of the Railways Act 1890 s 46 cannot affect the Supreme Court's jurisdiction under art 136). See also Union Carbide
Corpn v Union of India AIR 1992 SC 248, Union Carbide Corpn v Union of India (1991) 4 SCC 584, Union Carbide Corpn v
Union of India [1991] Supp 1 SCR 251 (the Supreme Court has inherent jurisdiction under art 136 to withdraw or transfer to it
and finally dispose of the main suits and pending criminal proceedings in the course of hearing appeals arising out of an
interlocutory order in the suits); Prashant Ramachandra Deshpande v Maruti Balaram Haibatti 1995 Supp 2 SCC 539,
Prashant Ramachandra Deshpande v Maruti Balaram Haibatti (1995) 2 Scale 804, Prashant Ramachandra Deshpande v Maruti
Balaram Haibatti (1995) 2 UJ 804; Usha K Pillai v Raj K Srinivas AIR 1993 SC 2090 [LNIND 1993 SC 418] [LNIND 1993 SC
418] [LNIND 1993 SC 418], Usha K Pillai v Raj K Srinivas (1993) 3 SCC 208 [LNIND 1993 SC 418] [LNIND 1993 SC 418]
[LNIND 1993 SC 418], Usha K Pillai v Raj K Srinivas [1993] 3 SCR 467.
12 Penu Balakrishna Iyer v Ariya M Ramaswami Iyer AIR 1965 SC 195 [LNIND 1964 SC 66] [LNIND 1964 SC 66] [LNIND 1964
SC 66], Penu Balakrishna Iyer v Ariya M Ramaswami Iyer [1964] 7 SCR 49 [LNIND 1964 SC 66] [LNIND 1964 SC 66] [LNIND
1964 SC 66].
13 Arunachalam v PSR Setharathnam AIR 1979 SC 1284 [LNIND 1979 SC 180] [LNIND 1979 SC 180] [LNIND 1979 SC
180]at 1287, Arunachalam v PSR Setharathnam (1979) 2 SCC 297 [LNIND 1979 SC 180] [LNIND 1979 SC 180] [LNIND 1979
SC 180], Arunachalam v PSR Setharathnam [1979] 3 SCR 482 [LNIND 1979 SC 180] [LNIND 1979 SC 180] [LNIND 1979 SC
180] (a special leave petition can be filed under art 136(1) of the Constitution by a person who is a party to the decision against
which the appeal is sought to be filed; however a person who is not a party to the case, but is adversely affected thereby may
also file the special leave petition. It is within the Court's discretion to grant leave to appeal to anyone).
353 162
Page
SC 149].
15 Collector of Central Excise, Madras v Standard Motor Products AIR 1989 SC 1298 [LNIND 1989 SC 121] [LNIND 1989 SC
121] [LNIND 1989 SC 121], Collector of Central Excise, Madras v Standard Motor Products (1989) 2 SCC 303 [LNIND 1989 SC
121] [LNIND 1989 SC 121] [LNIND 1989 SC 121], Collector of Central Excise, Madras v Standard Motor Products [1989] 1 SCR
824 [LNIND 1989 SC 121] [LNIND 1989 SC 121] [LNIND 1989 SC 121] (the power provided by art 136(1) is the residuary
power of the Supreme Court to provide justice where the Court is satisfied that there is injustice).
16 Comr of Central Excise and Customs v Venus Castings (Pvt) Ltd [2000] 2 LRI 410, Comr of Central Excise and Customs v
Venus Castings (Pvt) Ltd AIR 2000 SC 1568 [LNIND 2000 SC 598] [LNIND 2000 SC 598] [LNIND 2000 SC 598], Comr of
Central Excise and Customs v Venus Castings (Pvt) Ltd (2000) 4 SCC 206 [LNIND 2000 SC 598] [LNIND 2000 SC 598] [LNIND
2000 SC 598].
17 Chandra Bansi Singh v State of Bihar AIR 1984 SC 1767 [LNIND 1984 SC 221] [LNIND 1984 SC 221] [LNIND 1984 SC
221], Chandra Bansi Singh v State of Bihar (1984) 4 SCC 316 [LNIND 1984 SC 221] [LNIND 1984 SC 221] [LNIND 1984 SC
221], Chandra Bansi Singh v State of Bihar [1985] 1 SCR 579 [LNIND 1984 SC 221] [LNIND 1984 SC 221] [LNIND 1984 SC
221].
18 Kunhayammed v State of Kerala [2000] 3 LRI 523, Kunhayammed v State of Kerala AIR 2000 SC 2587 [LNIND 2000 SC
[LNIND 2000 SC 933] [LNIND 2000 SC 933].
19 As to effect of dismissal of special leave petition see [005.248].
20 Penu Balakrishna Iyer v Ariya M Ramaswami Iyer AIR 1965 SC 195 [LNIND 1964 SC 66] [LNIND 1964 SC 66] [LNIND 1964
SC 66], Penu Balakrishna Iyer v Ariya M Ramaswami Iyer [1964] 7 SCR 49 [LNIND 1964 SC 66] [LNIND 1964 SC 66] [LNIND
1964 SC 66].

SPECIAL LEAVE TO APPEAL/[005.244] Power to grant special leave to appeal and writ jurisdiction
[005.244] Power to grant special leave to appeal and writ jurisdiction The Supreme Court, under its
power to grant special leave to appeal1, may hear appeals from courts or tribunals2, while a high court, under
its writ jurisdiction3, may issue a writ to any authority whether administrative, quasi-judicial or legislative4.
The Supreme Court can interfere with a decision of a tribunal on a wider front under its appellate jurisdiction
than the high court can do in discharge of its writ jurisdiction5. In the exercise of its appellate jurisdiction, the
Supreme Court can go into questions of fact although it has imposed some limitations on itself, or of law and
can give any relief to the appellant which appears to the court to be suitable in the circumstances of the
case6. However, the high court's writ jurisdiction is not so flexible since it exercises restraints on itself while
probing into question of fact and of law. For instance, the high court goes into patent errors of law in its writ
jurisdiction while the Supreme Court can take cognisance of questions of law which may not be
characterised as patent errors of law7.
An appeal under the appellate jurisdiction of the Supreme Court8 cannot be refused on the ground that the
appellant did not exhaust the remedy available under the high courts writ jurisdiction9.
1 Ie under the Constitution of India art 136: see [005.242]-[005.243].
3 Ie under the Constitution of India art 226: see [005.222]: [80] consitutional law.
4 See [005.222].
5 See note 7 below.
6 See also P D Sharma v State Bank of India AIR 1968 SC 985 [LNIND 1968 SC 393] [LNIND 1968 SC 393] [LNIND 1968 SC
393], P D Sharma v State Bank of India (1968) 2 SCJ 844 [LNIND 1968 SC 393] [LNIND 1968 SC 393] [LNIND 1968 SC 393],
P D Sharma v State Bank of India (1968) 2 SCA 424 [LNIND 1968 SC 393] [LNIND 1968 SC 393] [LNIND 1968 SC 393]
354 163
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7 See P D Sharma v State Bank of India AIR 1968 SC 985 [LNIND 1968 SC 393] [LNIND 1968 SC 393] [LNIND 1968 SC 393],
P D Sharma v State Bank of India (1968) 2 SCJ 844 [LNIND 1968 SC 393] [LNIND 1968 SC 393] [LNIND 1968 SC 393], P D
Sharma v State Bank of India (1968) 2 SCA 424 [LNIND 1968 SC 393] [LNIND 1968 SC 393] [LNIND 1968 SC 393] (the high
court summarily dismissed the petitioner's writ petition challenging the decision of the labour court; thereafter, he appealed to
the Supreme Court under art 136(1) against the labour court order and not the high court decision; rejecting the objection that
the petitioner had not appealed from the high court judgment, the Court held that the high court had summarily rejected the writ
petition without making a speaking order, and it was not, therefore, possible to ascertain the reasons on which the high court
had rejected the writ petition and so the principle of res judicata would not apply to the facts of the case: see [005.154]).
9 Master Construction Co (Pvt Ltd) v State of Orissa AIR 1966 SC 1047 [LNIND 1965 SC 389] [LNIND 1965 SC 389] [LNIND
1965 SC 389], Master Construction Co (Pvt Ltd) v State of Orissa [1966] 3 SCR 99 [LNIND 1965 SC 389] [LNIND 1965 SC 389]
[LNIND 1965 SC 389]; P D Sharma v State Bank of India AIR 1968 SC 985 [LNIND 1968 SC 393] [LNIND 1968 SC 393]
[LNIND 1968 SC 393], P D Sharma v State Bank of India (1968) 2 SCJ 844 [LNIND 1968 SC 393] [LNIND 1968 SC 393]
[LNIND 1968 SC 393], P D Sharma v State Bank of India (1968) 2 SCA 424 [LNIND 1968 SC 393] [LNIND 1968 SC 393]
[LNIND 1968 SC 393] (The reason is that art 136 confers a discretionary appellate jurisdiction of the court against an order
passed by any tribunal, and this jurisdiction is not subject to any restriction such as that the party invoking the same should
have exhausted all his remedies. The existence of a statutory remedy may, however, persuade the Supreme Court not to grant
special leave to appeal. But the High Court's jurisdiction under art 226 is discretionary and its scope is also rather limited and,
therefore it is not mandatory for an appellant under art 136 to exhaust the remedy under art 226). As to exhaustion of remedies
see [005.250].

SPECIAL LEAVE TO APPEAL/[005.245] Discretion of the Supreme Court
[005.245] Discretion of the Supreme Court The Supreme Court, while granting special leave to appeal1,
retains the discretionary power to decide the case either on the basis of its merits or on the basis of equitable
considerations in the fact situation of the case and mould the final order2.
1 As to power to grant special leave to appeal see [005.242] and following.
lr's v Salambin Mohammad (1999) 2 SCC 635 [LNIND 1999 SC 207] [LNIND 1999 SC 207] [LNIND 1999 SC 207](although
appeal after grant of special leave is being dealt with, the Court is not bound to go into merits). As to relief see [005.252].

SPECIAL LEAVE TO APPEAL/[005.246] Concept of tribunal for special leave petitions
[005.246] Concept of tribunal for special leave petitions An adjudicatory body1 in order to be considered
a tribunal, must be constituted by, and invested with a part of the judicial function of the state2. A body which
is purely administrative or executive or legislative in nature without exercising any judicial functions would not
fall under the purview of the Supreme Court's jurisdiction to grant special leave to appeal3. However, while
most of the quasi--judicial bodies4 may be held to be tribunals, it is not necessary that each and every such
body may be so characterised.
Hence, the expression 'tribunal' does not mean a court, but includes within its ambit all adjudicatory bodies,
provided they are constituted by the state and are invested with judicial, as distinguished from purely
administrative or executive, functions5.
The Supreme Court refused to hear an appeal from an arbitrator appointed under the Industrial Disputes Act
355 164
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1947 on the ground that an arbitrator is not a tribunal because he is not invested with the inherent judicial
power of the state. The appointment of an arbitrator is based on the agreement of the parties concerned and
hence, he is a nominee not of the state but of private parties6. In order to be a tribunal, the power of
adjudication must be derived from a statute or statutory rule and not from an agreement of parties7. The
appropriate government or authority while granting or refusing permission for retrenchment of workmen
under Industrial Disputes Act 19478 is not a tribunal9. Concisely, for an order to be the subject of a petition
for special leave to appeal it must be an adjudicatory order, an order that adjudicates upon the rival
contentions of parties, and must be passed by an authority constituted by the state by law for the purpose in
discharge of the state's obligation to secure justice to its people10.
The following tests may be applied to determine whether a body is a 'tribunal' or not11:
(1) it must not be an 'administrative' body pure and simple, but a quasi -judicial body as well;
(2) it must be under an obligation to act judicially;
(3) it must have some 'trappings of a court'12;
(4) it must be constituted by the state;
(5) the state must confer on it its inherent judicial power, ie, power to adjudicate upon disputes13.
The presence of all or some trappings of a court is not a decisive factor14. The Central Government and the
Central Board of Revenue have been held to be 'tribunals' although they do not exhibit any trappings of a
court15. However, the basic test to determine whether the authority is a tribunal, is whether the adjudicating
power which the authority is empowered to exercise has been conferred on it by a statute and can be
described as a part of the state's inherent power exercised in discharging its judicial function16. The
presence of some of the trappings may assist the determination of the question as to whether the power
exercised by the authority which possesses the said trappings is the judicial power of the state or not17.
Furthermore, the Supreme Court may decide whether the body is quasi-judicial or not, before proceeding to
ascertain whether the principles of natural justice have been complied with18. The Election Commission
empowered to adjudicate upon disputes with regard to recognition of political parties, or rival claims to a
particular symbol for purposes of election is created by the Constitution19 and is invested by law with not only
administrative powers but also with certain judicial powers of the state20. Similarly, the Settlement
Commission established under the Income Tax Act 1961 is a tribunal21. Hence, when a body is created by
statute and clothed with authority to determine rights and duties of parties and to impose penalties on them,
it can be characterised as a tribunal for the purposes of the Supreme Court's power to grant special leave to
appeal22. Hence, a district judge empowered to take disciplinary action against ministerial servants does not
act as a tribunal, but acts purely administratively since it does not resolve any dispute or controversy
between two adversaries and only exercises its power of control over the subordinate judiciary23.
The Supreme Court has heard appeals, inter alia, from the following adjudicatory bodies holding them to be
tribunals:
(i) Industrial Tribunal functioning under the Labour Disputes Act 194724;
(ii) Central Administrative Tribunal25;
(iii) Election Commission and election tribunals26;
(iv) Railway Rates Tribunal27;
(v) Income-tax Appellate Tribunal28 and Settlement Commission29;
(vi) Custodian General acting under the Administration of Evacuee Property Act 195030;
(vi) Authority under the Payment of Wages Act 193631;
(vii) Central Government acting under Companies Act 195632, while deciding a dispute regarding
registration of shares between a company and the shareholder33;
(ix) Central Government exercising powers of revision under Mines and Minerals (Regulation &
Development) Act 195734.
(x) Central Government hearing appeals in customs matters35;
(xi) State government engaged in revisional proceedings under the Uttar Pradesh (Temporary)
Control of Rent and Eviction Act 194736;
(xii) State government acting under the Punjab Welfare officers Recruitment and Conditions of
356 165
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Service Rules 1952, issued under the Factories Act 194837;

(xiii) Board of Revenue38.
Furthermore, another consideration to hold a statutory body as a tribunal is finality or conclusiveness and the
binding nature of the determination by such authority. For instance, the Speaker acting under the provisions
of the Constitution39, deciding a question of disqualification of a member of the Legislature arising as a result
of his defection is held to be a tribunal40. However, the Inquiry Committee formed under the Judges (Inquiry)
Act 196841 cannot be treated as a tribunal because the report of the Committee finding a judge guilty of
misbehaviour is merely in the nature of recommendation for his removal which cannot be treated as
conclusive and may or may not be acted upon by Parliament42.
Jaswant Sugar Mills Ltd Meerut v Lakshmi Chand AIR 1963 SC 677 [LNIND 1962 SC 308] [LNIND 1962 SC 308] [LNIND 1962
SC 308], Jaswant Sugar Mills Ltd Meerut v Lakshmi Chand [1963] Supp 1 SCR 242, Jaswant Sugar Mills Ltd Meerut v Lakshmi
Chand (1963) 1 LLJ 524 [LNIND 1962 SC 308] [LNIND 1962 SC 308] [LNIND 1962 SC 308](a conciliation officer acting under
the Industrial Disputes Act 1947, while granting or refusing permission to alter the terms of employment of the workmen at the
instance of the employer, was held to be not a tribunal, although he acts in a guasi-judicial capacity in the matter; the Court
stressed the point that to be a tribunal, a body, besides being under a duty to act judicially, the principal incident is the
investiture of the 'trappings of a court', such as, authority to determine matters in cases initiated by parties, sitting in public,
power to compel attendance of witnesses and to examine them on oath, duty to follow fundamental rules of evidence (though
not the strict rules of the Evidence Act), provision for imposing sanctions by way of imprisonment, fine, damages, or mandatory
or prohibitory orders to enforce obedience to their commands. The list is illustrative; some, though not necessarily all such
trappings, will ordinarily make the authority which is under a duty to act judicially, a 'tribunal'.
As regards the conciliation officer, no procedure is prescribed for the investigation to be made by him; he is not require to sit in
public; no formal pleadings are tendered before him; he is not empowered to compel attendance of witnesses or examine them
on oath. Nevertheless, he follows a quasi-judicial procedure, ie. he hears both the parties (labour and management) before
making an order; but does not deliver a determinative judgment or make an award affecting the rights and obligations of the
parties; he is not constituted to adjudicate on industrial disputes. His order merely removes a statutory ban in certain
eventualities laid upon the common law right of an employer to dismiss, discharge or alter the terms of employment according
to contract between the parties. A conciliation officer primarily seeks to promote a compromise between the parties. Hence, a
conciliation officer, not invested with the judicial power of the state, Cannot be regarded as a tribunal).
3 See Bharat Kala Bhandar (Pvt) Ltd v Municipal Committee, Dhamangaon AIR 1966 SC 249 [LNIND 1965 SC 105] [LNIND
1965 SC 105] [LNIND 1965 SC 105], Bharat Kala Bhandar (Pvt) Ltd v Municipal Committee, Dhamangaon [1965] 3 SCR 499
[LNIND 1965 SC 105] [LNIND 1965 SC 105] [LNIND 1965 SC 105], Bharat Kala Bhandar (Pvt) Ltd v Municipal Committee,
Dhamangaon (1965) 2 SCJ 741 [LNIND 1965 SC 105] [LNIND 1965 SC 105] [LNIND 1965 SC 105]; Chandrika Misir v
Bhaiyalal AIR 1973 SC 2391 [LNIND 1973 SC 216] [LNIND 1973 SC 216] [LNIND 1973 SC 216], Chandrika Misir v Bhaiyalal
(1973) 2 SCC 473, Chandrika Misir v Bhaiyalal [1974] 1 SCR 290 [LNIND 1973 SC 216] [LNIND 1973 SC 216] [LNIND 1973 SC
216].
5 Bharat Bank Ltd, Delhi v Employees of the Bharat Bank Ltd, Delhi AIR 1950 SC 188 [LNIND 1950 SC 4] [LNIND 1950 SC 4]
[LNIND 1950 SC 4], Bharat Bank Ltd, Delhi v Employees of the Bharat Bank Ltd, Delhi [1950] SCR 459 (the industrial tribunal
discharges no other function except that of adjudicating a dispute and hence has all the necessary attributes of a court of
justice; such a tribunal could be characterised as a quasi-judicial body because it discharges functions which are basically
judicial in nature and accordingly, it was held that the Supreme Court could grant special leave to appeal against an award of an
industrial tribunal); Express Newspapers Pvt Ltd v Union of India AIR 1958 SC 578 [LNIND 1958 SC 25] [LNIND 1958 SC 25]
[LNIND 1958 SC 25], Express Newspapers Pvt Ltd v Union of India [1959] SCR 12 [LNIND 1958 SC 25] [LNIND 1958 SC 25]
[LNIND 1958 SC 25], Express Newspapers Pvt Ltd v Union of India (1958) SCJ 1113.
7 Engineering Mazdoor Sabha v Hind Cycles Ltd AIR 1963 SC 874 [LNIND 1962 SC 337] [LNIND 1962 SC 337] [LNIND 1962
SC 337], Engineering Mazdoor Sabha v Hind Cycles Ltd [1963] Supp 1 SCR 625, Engineering Mazdoor Sabha v Hind Cycles
Ltd (1964) 1 SCJ 140; see contra Gujarat Steel Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha AIR 1980 SC 1896 [LNIND
1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha
(1980) 2 SCC 593 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel
Tubes Mazdoor Sabha [1980] 2 SCR 146 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464](under the
Industrial Disputes Act s 10A, a voluntary joint submission of an industrial dispute is made by the parties concerned to the
arbitrator who is appointed by them; after this decision the earlier view of the Supreme Court expressed in Hind Cycles no
357 166
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longer appears to be tenable. There is no reason as to why the word 'tribunal' in art 136 should be interpreted more restrictively
than the same word in s 11A, IDA. The decision in Hind Cycles represents the phase when the Supreme Court still tended to
take a somewhat restrictive view of its plenary jurisdiction under art F136 by narrowly interpreting the term 'tribunal' with
Gujarat Steel Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464]
[LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha (1980) 2 SCC 593 [LNIND 1979 SC 464]
[LNIND 1979 SC 464] [LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes Mazdoor Sabha [1980] 2 SCR 146
[LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464] that phase seems to have come to an end).
8 Industrial Disputes Act 1947 s 25 N.
9 Workmen of Meenakshi Mills Ltd v Meenakshi Mills Ltd AIR 1994 SC 2696 [LNIND 1992 SC 411] [LNIND 1992 SC 411]
[LNIND 1992 SC 411]at 2717, Workmen of Meenakshi Mills Ltd v Meenakshi Mills Ltd (1992) 3 SCC 336 [LNIND 1992 SC 411]
[LNIND 1992 SC 411] [LNIND 1992 SC 411], Workmen of Meenakshi Mills Ltd v Meenakshi Mills Ltd [1992] 3 SCR 409 [LNIND
10 Konkan Railway Corpn Ltd v Rani Construction Pvt Ltd [2002] 1 LRI 272, Konkan Railway Corpn Ltd v Rani Construction
Pvt Ltd AIR 2002 SC 778 [LNIND 2002 SC 84] [LNIND 2002 SC 84] [LNIND 2002 SC 84]at 788.
11 See note 12-42 below.
13 See note xx below.
India Ltd v Union of India [1976] 2 SCR 98 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390]; Ahura Chemical
Products (Pvt) Ltd v Union of India AIR 1981 SC 1782 [LNIND 1981 SC 372] [LNIND 1981 SC 372] [LNIND 1981 SC 372],
Ahura Chemical Products (Pvt) Ltd v Union of India (1981) 4 SCC 277 [LNIND 1981 SC 372] [LNIND 1981 SC 372] [LNIND
1981 SC 372], Ahura Chemical Products (Pvt) Ltd v Union of India [1982] 1 SCR 621 [LNIND 1981 SC 372] [LNIND 1981 SC
372] [LNIND 1981 SC 372].
15
Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala AIR 1961 SC 1669 [LNIND 1961 SC 206] [LNIND 1961 SC 206]
[LNIND 1961 SC 206], Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala [1962] 2 SCR 339 [LNIND 1961 SC 206]
[LNIND 1961 SC 206] [LNIND 1961 SC 206], Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala (1961) 31 CC
387(under Companies Act 1956 s 111(3), the Government of India decides a dispute regarding registration of shares between a
company and a person who has purchased the shares and seeks registration thereof; the government acts as a tribunal in this
situation and accordingly, the Court can hear appeal from the government's decision).
Dunlop India Ltd v Union of India AIR 1977 SC 597 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390], Dunlop
India Ltd v Union of India (1976) 2 SCC 241 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390], Dunlop India
Ltd v Union of India [1976] 2 SCR 98 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390] (in the matter of
assessment of customs duties on imports, the Government of India in its capacity as the final appellate body, acted as a
'tribunal' when it disposed of appeals in customs matters, and so it was entitled to hear appeals under art 136(1) from the
government's decisions. As an adjudicatory body, the government could be characterised as a tribunal and, thus, brought within
the purview of art 136).
Indo-China Steam Navigation Co Ltd v Jasjit Singh, Additional Collector of Customs CA,lcutta AIR 1964 SC 1140 [LNIND 1964
SC 25] [LNIND 1964 SC 25] [LNIND 1964 SC 25], Indo-China Steam Navigation Co Ltd v Jasjit Singh, Additional Collector of
Customs CA,lcutta [1964] 6 SCR 594 [LNIND 1964 SC 25] [LNIND 1964 SC 25] [LNIND 1964 SC 25], Indo-China Steam
Navigation Co Ltd v Jasjit Singh, Additional Collector of Customs CA,lcutta (1964) 2 Cr LJ 234; Shivji Nathubhai v Union of
India AIR 1960 SC 606 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13], Shivji Nathubhai v Union of India [1960]
2 SCR 775 [LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13], Shivji Nathubhai v Union of India (1960) SCJ 579
[LNIND 1960 SC 13] [LNIND 1960 SC 13] [LNIND 1960 SC 13]; see Ahura Chemical Products (Pvt) Ltd v Union of India AIR
1981 SC 1782 [LNIND 1981 SC 372] [LNIND 1981 SC 372] [LNIND 1981 SC 372], Ahura Chemical Products (Pvt) Ltd v Union
of India (1981) 4 SCC 277 [LNIND 1981 SC 372] [LNIND 1981 SC 372] [LNIND 1981 SC 372], Ahura Chemical Products (Pvt)
Ltd v Union of India [1982] 1 SCR 621 [LNIND 1981 SC 372] [LNIND 1981 SC 372] [LNIND 1981 SC 372]; Shri Bhagwan v
Ram Chand AIR 1965 SC 1767 [LNIND 1965 SC 64] [LNIND 1965 SC 64] [LNIND 1965 SC 64], Shri Bhagwan v Ram Chand
[1965] 3 SCR 218 [LNIND 1965 SC 64] [LNIND 1965 SC 64] [LNIND 1965 SC 64] (the state government has been held to be a
tribunal for purpose of art 136).
16 Associated Cement Companies Ltd v P N Sharma AIR 1965 SC 1595 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND
1964 SC 346], Associated Cement Companies Ltd v P N Sharma [1965] 2 SCR 366 [LNIND 1964 SC 346] [LNIND 1964 SC
346] [LNIND 1964 SC 346], Associated Cement Companies Ltd v P N Sharma (1965) 1 LLJ 433 [LNIND 1964 SC 346] [LNIND
1964 SC 346] [LNIND 1964 SC 346]; All Party Hill Leaders' Conference, Shillong v WA Sangma AIR 1977 SC 2155 [LNIND
1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA Sangma (1977) 4
SCC 161 [LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA
Sangma [1978] 1 SCR 393 [LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264].
358 167
Page
18 Siemens Engineering and Manufacturing Co of India v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND
1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India v Union of India (1976) 2 SCC 981
[LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India v
Union of India [1976] Supp SCR 489.
19 Election Symbols (Reservation and Allotment) order 1968.
20 All Party Hill Leaders' Conference, Shillong v WA Sangma AIR 1977 SC 2155 [LNIND 1977 SC 264] [LNIND 1977 SC 264]
[LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA Sangma (1977) 4 SCC 161 [LNIND 1977 SC 264]
[LNIND 1977 SC 264] [LNIND 1977 SC 264], All Party Hill Leaders' Conference, Shillong v WA Sangma [1978] 1 SCR 393
[LNIND 1977 SC 264] [LNIND 1977 SC 264] [LNIND 1977 SC 264](when the Election Commission is required to adjudicate a
dispute between two parties, the Commission exercises a part of the state's judicial power which is conferred on it through the
Constitution of India art 324 and the rules made thereunder; hence the Commission is a tribunal while acting judicially, although
the Commission has various administrative functions to discharge, ie, administrative, legislative or judicial, but that does not
mean that while adjudicating upon a dispute it does not exercise a judicial power conferred on it by the state).
21 Comr of Income-Tax (Central) CA,lcutta v B N Bhattacharjee AIR 1979 SC 1725 [LNIND 1979 SC 274] [LNIND 1979 SC
274] [LNIND 1979 SC 274], Comr of Income-Tax (Central) CA,lcutta v B N Bhattacharjee (1979) 4 SCC 121 [LNIND 1979 SC
274] [LNIND 1979 SC 274] [LNIND 1979 SC 274], Comr of Income-Tax (Central) CA,lcutta v B N Bhattacharjee [1979] 2 SCR
1133.
22 See Associated Cement Companies Ltd v P N Sharma AIR 1965 SC 1595 [LNIND 1964 SC 346] [LNIND 1964 SC 346]
[LNIND 1964 SC 346], Associated Cement Companies Ltd v P N Sharma [1965] 2 SCR 366 [LNIND 1964 SC 346] [LNIND
1964 SC 346] [LNIND 1964 SC 346], Associated Cement Companies Ltd v P N Sharma (1965) 1 LLJ 433 [LNIND 1964 SC
346] [LNIND 1964 SC 346] [LNIND 1964 SC 346].
23 Dev Singh v Registrar, Punjab and Haryana High Court AIR 1987 SC 1629 [LNIND 1987 SC 978] [LNIND 1987 SC 978]
[LNIND 1987 SC 978], Dev Singh v Registrar, Punjab and Haryana High Court (1987) 3 SCC 169 [LNIND 1987 SC 978] [LNIND
1987 SC 978] [LNIND 1987 SC 978], Dev Singh v Registrar, Punjab and Haryana High Court [1987] 2 SCR 1005 [LNIND 1987
SC 978] [LNIND 1987 SC 978] [LNIND 1987 SC 978] (every decision of or order by an authority, which has a duty to act
judicially, is not subject to appeal to the Supreme Court under art 136 of the Constitution; every authority which is required to
act judicially, either by its constitution or by virtue of the authority conferred upon it, is not necessary a tribunal for the purpose
of art 136. In certain matters every judge has to act administratively and in doing so may have to act quasi-judicially in dealing
with the matters entrusted to them, it is only where the authorities are required to act judicially either by express provisions of
the statute or by necessary implication that the decisions of such an authority would amount to quasi-judicial proceedings.
When judges in exercise of their administrative functions decide cases it cannot be said that their decisions are either judicial or
quasi-judicial).
24 Bharat Bank Ltd, Delhi v Employees of the Bharat Bank Ltd, Delhi AIR 1950 SC 188 [LNIND 1950 SC 4] [LNIND 1950 SC 4]
[LNIND 1950 SC 4], Bharat Bank Ltd, Delhi v Employees of the Bharat Bank Ltd, Delhi [1950] SCR 459; JK Iron and Steel Co
Ltd, Kanpur v Iron and Steel Mazdoor Union, Kanpur AIR 1956 SC 231 [LNIND 1955 SC 119] [LNIND 1955 SC 119] [LNIND
1955 SC 119], JK Iron and Steel Co Ltd, Kanpur v Iron and Steel Mazdoor Union, Kanpur [1955] 2 SCR 1315 [LNIND 1955 SC
119] [LNIND 1955 SC 119] [LNIND 1955 SC 119], JK Iron and Steel Co Ltd, Kanpur v Iron and Steel Mazdoor Union, Kanpur
(1956) SCJ 270.
25 Council of Scientific and Industrial Research v K G S Bhatt AIR 1989 SC 1972 [LNIND 1989 SC 420] [LNIND 1989 SC 420]
[LNIND 1989 SC 420], Council of Scientific and Industrial Research v K G S Bhatt (1989) 4 SCC 635 [LNIND 1989 SC 420]
[LNIND 1989 SC 420] [LNIND 1989 SC 420], Council of Scientific and Industrial Research v K G S Bhatt (1989) Lab IC 2010.
Durga Shankar Mehta v Raghuraj Singh (1954) SCJ 723; Sangram Singh v Election Tribunal, Kotah AIR 1955 SC 425 [LNIND
1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2], Sangram Singh v Election Tribunal, Kotah [1955] 2 SCR 1 [LNIND 1955
SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2], Sangram Singh v Election Tribunal, Kotah (1955) SCJ 431 [LNIND 1955 SC 2]
[LNIND 1955 SC 2] [LNIND 1955 SC 2].
27 Raigarh Jute Mills Ltd v Eastern Railway AIR 1958 SC 525 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC 30],
Raigarh Jute Mills Ltd v Eastern Railway [1959] SCR 236 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC 30],
Raigarh Jute Mills Ltd v Eastern Railway (1958) SCJ 720 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC 30];
Shahdara (Delhi) Saharanpur Light Railway Co Ltd v Upper Doab Sugar Mills Ltd AIR 1960 SC 695 [LNIND 1960 SC 451]
[LNIND 1960 SC 451] [LNIND 1960 SC 451], Shahdara (Delhi) Saharanpur Light Railway Co Ltd v Upper Doab Sugar Mills Ltd
SC 149]; Sovachand Baid v Comr of Income-tax AIR 1959 SC 59, Sovachand Baid v Comr of Income-tax (1958) 34 ITR 650.
29 See note 21 above (Settlement Commissions under the Income Tax Act 1961 are tribunals).
359 168
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30 Indira Sohanlal v Custodian of Evacuee Property, Delhi AIR 1956 SC 77 [LNIND 1955 SC 85] [LNIND 1955 SC 85] [LNIND
1955 SC 85], Indira Sohanlal v Custodian of Evacuee Property, Delhi [1955] 2 SCR 1117 [LNIND 1955 SC 85] [LNIND 1955 SC
85] [LNIND 1955 SC 85], Indira Sohanlal v Custodian of Evacuee Property, Delhi (1956) SCJ 171 [LNIND 1955 SC 85] [LNIND
1955 SC 85] [LNIND 1955 SC 85] (Custodian General action under s 27 of the Administration of Evacuee Property Act 1950);
Purshotam Lal Dhawan v Chaman Lal AIR 1961 SC 1371 [LNIND 1961 SC 104] [LNIND 1961 SC 104] [LNIND 1961 SC 104],
Purshotam Lal Dhawan v Chaman Lal [1962] 1 SCR 297 [LNIND 1961 SC 104] [LNIND 1961 SC 104] [LNIND 1961 SC 104];
Bishambhar Nath Kohli v State of Uttar Pradesh AIR 1966 SC 573 [LNIND 1965 SC 256] [LNIND 1965 SC 256] [LNIND 1965
SC 256], Bishambhar Nath Kohli v State of Uttar Pradesh [1966] 2 SCR 158 [LNIND 1965 SC 256] [LNIND 1965 SC 256]
[LNIND 1965 SC 256].
31 B P Hira, Works Manager, Central Railway, Parel, Bombay v C M Pradhan AIR 1959 SC 1226 [LNIND 1959 SC 107]
[LNIND 1959 SC 107] [LNIND 1959 SC 107], B P Hira, Works Manager, Central Railway, Parel, Bombay v C M Pradhan [1960]
1 SCR 137 [LNIND 1959 SC 107] [LNIND 1959 SC 107] [LNIND 1959 SC 107], B P Hira, Works Manager, Central Railway,
Parel, Bombay v C M Pradhan (1959) 2 LLJ 397 [LNIND 1959 SC 107] [LNIND 1959 SC 107] [LNIND 1959 SC 107].
32 Ie under the Companies Act 1956 s 111(3).
33 Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala AIR 1961 SC 1669 [LNIND 1961 SC 206] [LNIND 1961 SC 206]
[LNIND 1961 SC 206] [LNIND 1961 SC 206], Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala (1961) 31 CC 387.
34 Ie under the Mines and Minerals (Regulation & Development) Act 1957 s 30; Madhya Pradesh Industries Ltd v Union of
India AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190], Madhya Pradesh Industries Ltd v
Union of India [1966] 1 SCR 466 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND 1965 SC 190]; State of Bombay v Rusy
Mistry AIR 1960 SC 391, State of Bombay v Rusy Mistry (1960) Cr LJ 532.
India Ltd v Union of India [1976] 2 SCR 98 [LNIND 1975 SC 390] [LNIND 1975 SC 390] [LNIND 1975 SC 390]; Ahura Chemical
Products (Pvt) Ltd v Union of India AIR 1981 SC 1782 [LNIND 1981 SC 372] [LNIND 1981 SC 372] [LNIND 1981 SC 372],
Ahura Chemical Products (Pvt) Ltd v Union of India (1981) 4 SCC 277 [LNIND 1981 SC 372] [LNIND 1981 SC 372] [LNIND
1981 SC 372], Ahura Chemical Products (Pvt) Ltd v Union of India [1982] 1 SCR 621 [LNIND 1981 SC 372] [LNIND 1981 SC
372] [LNIND 1981 SC 372].
36 Ie Under the Under the Uttar Pradesh (Temporary) Control Of Rent And Eviction Act 1947 s 7(F); Shri Bhagwan v Ram
Chand AIR 1965 SC 1767 [LNIND 1965 SC 64] [LNIND 1965 SC 64] [LNIND 1965 SC 64], Shri Bhagwan v Ram Chand [1965]
37 Associated Cement Companies Ltd v P N Sharma AIR 1965 SC 1595 [LNIND 1964 SC 346] [LNIND 1964 SC 346] [LNIND
1964 SC 346], Associated Cement Companies Ltd v P N Sharma [1965] 2 SCR 366 [LNIND 1964 SC 346] [LNIND 1964 SC
346] [LNIND 1964 SC 346], Associated Cement Companies Ltd v P N Sharma (1965) 1 LLJ 433 [LNIND 1964 SC 346] [LNIND
1964 SC 346] [LNIND 1964 SC 346].
38 Delhi Cloth and General Mills Co Ltd v State of Rajasthan AIR 1980 SC 1552 [LNIND 1980 SC 240] [LNIND 1980 SC 240]
[LNIND 1980 SC 240], Delhi Cloth and General Mills Co Ltd v State of Rajasthan (1980) 4 SCC 71 [LNIND 1980 SC 240]
[LNIND 1980 SC 240] [LNIND 1980 SC 240], Delhi Cloth and General Mills Co Ltd v State of Rajasthan [1980] 3 SCR 1109
39 Constitution of India Schedule X (known as the Anti Defection Law).
40 Kihota Hollohon v Zachilhu AIR 1993 SC 412 [LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC 175], Kihota
Hollohon v Zachilhu (1992) Supp 2 SCC 651, Kihota Hollohon v Zachilhu [1992] 1 SCR 686 [LNIND 1992 SC 175] [LNIND 1992
SC 175] [LNIND 1992 SC 175].
41 Ie under the Judges (Inquiry) Act 1968 s 3 and the Judges (Inquiry) Rules 1969 read with Constitution of India art 124.
42 Sarojini Ramaswami v Union of India AIR 1992 SC 2219, Sarojini Ramaswami v Union of India (1992) 4 SCC 506, Sarojini
Ramaswami v Union of India (1992) 5 JT 1.

ADMINISTRATIVE LAW/19. APPEAL TO SUPREME COURT BY SPECIAL LEAVE/(2) GROUNDS FOR
APPEAL AND DISMISSAL OF APPEAL/[005.247] Grounds for appeal
[005.247] Grounds for appeal The constitutional provision does not regulate the Supreme Court's discretion
in the matter of hearing appeals1. The two main considerations are:
360 169
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(1) the Court's power to grant special leave to appeal is extraordinary and discretionary and
hence, must be used in exceptional circumstances2; and.
(2) the power must be exercised whenever there is a miscarriage of justice, and whether
extraordinary and exceptional circumstances exist or not would depend on the factual situation
of a case3.
Where the applicant is unable to show the presence of any special circumstance, the court would refuse to
grant leave to appeal4.
The pre-requisites for interference of the Court to set right the decisions of tribunals can generally be
categorised as follows:
(i) the tribunal acts in excess of its jurisdiction conferred on it by the parent law;
(ii) the tribunal fails to exercise a patent jurisdiction5;
(iii) the tribunal has erroneously applied well-accepted principles of jurisprudence6;
(iv) the order of tribunal is erroneous7;
(v) the tribunal acts against the principles of natural justice8, or has approached the question in a
manner likely to result in injustice, eg, if it has denied a hearing to a party, or has refused to
record his evidence, or has acted in an arbitrary or despotic fashion, or has not given a fair deal
to a litigant9;.
(vi) there is error of law in the tribunal decision10, or the tribunal misleads itself on law11, or the
tribunal order is wrong on an important question of law12; or
(vii) the tribunal order is unjust or unreasonable13.
The abovementioned categories of grounds for appeal to the Supreme Court are illustrative but not
exhaustive and the duty of the Court is to ensure that injustice is not perpetrated or perpetuated by the
tribunals14. The Court refused to interfere with the decision of the tribunal when the government filed special
leave to appeal from the tribunals order on grounds other than injustice or illegality of any provision15.
The Supreme Court will interfere only where the award passed by the tribunal is wholly unreasonable and is
the result of the failure of the tribunal to take into account the necessary relevant facts16. Moreover, the
Supreme Court does not interfere with the conclusion arrived at by the tribunal if it has taken all the relevant
factors into consideration and there has been no misapplication of the principles of law17. The Supreme
Court invariably insists that the tribunal ought to give a reasonable opportunity of being heard to the parties
concerned18. Where the state administrative tribunal cancelled the appointment of a person, not impleaded
as a party in the proceeding, the Supreme Court set aside the tribunal order as it amounted to a grave error
of law19. Where the tribunal fails to state its reasons for passing the order, the order may be quashed and
the tribunal may be directed to rehear the matter and dispose it according to law20.
Furthermore, the Supreme Court does not usually interfere with a tribunal's findings of fact by re-appreciating
the evidence and arriving at its own findings of fact21. The court does not entertain the argument that the
finding of fact are erneous or are based an misappreciation of evidence by the concerned tribunal22. Hence,
interference of the Court with the findings of fact by the tribunal is warranted under the belowmentioned
circumstances:
(a) absence of all legal evidence to support the same23; or

(b) the findings are based on irrelevant considerations24; or
(c) the tribunal has spoken in two voices and has given inconsistent and conflicting findings25; or
(d) the conclusion is pure speculation and not one which any reasonable mind could judicially
reach on the data set out26; or
(e) when the findings are perverse and that no reasonable person can come to such findings on
the materials before the tribunal27 or inconsistent with the evidence on record28; or are tainted
with serious infirmity29; or (f) when the relief awarded is wrong30.
The Court would not interfere with the tribunal's findings of fact merely on the ground that these are
erroneous and based on a misappreciation of evidence31.
361 170
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Normally, in exercising its jurisdiction to grant special leave to appeal, the Supreme Court does not interfere
with the findings of fact concurrently arrived at by the tribunal and the high court unless there is a clear error
of law or unless some important piece of evidence has been omitted from consideration32.
When a tribunal arrives at its decision in effect by considering material which is irrelevant to the inquiry, or
bases its decision on material which is partly relevant and partly irrelevant, or bases its decision partly on
evidence and partly on conjectures, surmises and suspicions then it raises an issue of law and the Supreme
Court can go into this matter33.
The Court does not interfere with the exercise of discretion by a tribunal in a matter which falls within its
discretion under the relevant law34, unless when a tribunal does fails to exercise its discretion thinking that it
has none, or exercises discretion on irrelevant consideration, or when the tribunal reached into decision
without applying its mind to the issue before it35.
A new plea is not allowed to be raised for the first time in an appeal before the Supreme Court36. However, if
it is a question of law arising on admitted facts, the Court may allow it to be argued before it even if it was not
raised before the lower court37.
The power of the Supreme Court to grant special leave to appeal is not denuded even when the parent
statute, under which the tribunal functions, declares the decision to be final38.
SC 149] (it is not possible to define with any precision the limitations on the exercise of the discretionary jurisdiction vested in
this court by the constitutional provision made in art 136; the limitations whatever they be, are implicit in the nature and
character of the power itself. It being an exceptional and overriding power, naturally it has to be exercised sparingly and with
caution and only in special and extraordinary situations. Beyond that it is not possible to fetter the exercise of this power by any
set formula or rule).
3 Shaw Wallace & Co v Workmen AIR 1978 SC 977 [LNIND 1978 SC 30] [LNIND 1978 SC 30] [LNIND 1978 SC 30], Shaw
Wallace & Co v Workmen (1977) 2 SCC 45, Shaw Wallace & Co v Workmen (1978) 2 SCJ 185 [LNIND 1978 SC 30] [LNIND
1978 SC 30] [LNIND 1978 SC 30], (jurisdiction under art 136 can be invoked ordinarily only when there is a manifest injustice
fundamental flaw in law or perverse findings of fact). See [005.242] and following.
4 Soorajmull Nagarmull v Comr of Income-Tax AIR 1963 SC 491 [LNIND 1962 SC 78] [LNIND 1962 SC 78] [LNIND 1962 SC
78], Soorajmull Nagarmull v Comr of Income-Tax [1962] Supp 3 SCR 306, Soorajmull Nagarmull v Comr of Income-Tax (1952)
45 ITR 220; Chandi Prasad Chokhani v State of Bihar AIR 1961 SC 1708 [LNIND 1961 SC 197] [LNIND 1961 SC 197] [LNIND
1961 SC 197], Chandi Prasad Chokhani v State of Bihar [1962] 2 SCR 276 [LNIND 1961 SC 197] [LNIND 1961 SC 197]
[LNIND 1961 SC 197], Chandi Prasad Chokhani v State of Bihar (1961) 43 ITR 498; Indian Aluminium Co Ltd v Comr of
Income-Tax, West Bengal AIR 1962 SC 1619, Indian Aluminium Co Ltd v Comr of Income-Tax, West Bengal (1961) 43 ITR
532.
5 J K Iron and Steel Co Ltd, Kanpurv Iron and Steel Mazdoor Union, Kanpur v AIR 1956 SC 231 [LNIND 1955 SC 119] [LNIND
1955 SC 119] [LNIND 1955 SC 119], J K Iron and Steel Co Ltd, Kanpurv Iron and Steel Mazdoor Union, Kanpur v [1955] 2 SCR
1315 [LNIND 1955 SC 119] [LNIND 1955 SC 119] [LNIND 1955 SC 119], J K Iron and Steel Co Ltd, Kanpurv Iron and Steel
Mazdoor Union, Kanpur v (1956) SCJ 270; Clerks and Depot Cashiers of Calcutta Tramways Co Ltd v Calcutta Tramways Co
Ltd AIR 1957 SC 78 [LNIND 1956 SC 79] [LNIND 1956 SC 79] [LNIND 1956 SC 79], Clerks and Depot Cashiers of Calcutta
Tramways Co Ltd v Calcutta Tramways Co Ltd (1956) SCC 518 [LNIND 1956 SC 79] [LNIND 1956 SC 79] [LNIND 1956 SC
79], Clerks and Depot Cashiers of Calcutta Tramways Co Ltd v Calcutta Tramways Co Ltd [1956] SCR 772 [LNIND 1956 SC
79] [LNIND 1956 SC 79] [LNIND 1956 SC 79]; Dharangadhra Chemical Works Ltd v Dharangdhara Municipality AIR 1959 SC
1271 [LNIND 1959 SC 129] [LNIND 1959 SC 129] [LNIND 1959 SC 129]; Chief Administrator-cum-Joint Secretary,
Government of India v Dipak Chandra Das AIR 1999 SC 186 [LNIND 1998 SC 1183] [LNIND 1998 SC 1183] [LNIND 1998 SC
1183], Chief Administrator-cum-Joint Secretary, Government of India v Dipak Chandra Das (1998) 6 JT 376, Chief
Administrator-cum-Joint Secretary, Government of India v Dipak Chandra Das (1998) 5 Scale 292 [LNIND 1998 SC 1183]
[LNIND 1998 SC 1183] [LNIND 1998 SC 1183]. See writ of Certiorari [005.289].
6 Sangram Singh v Election Tribunal, Kotah AIR 1955 SC 425 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2],
Sangram Singh v Election Tribunal, Kotah [1955] 2 SCR 1 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2],
Sangram Singh v Election Tribunal, Kotah (1955) SCJ 431 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2].
7 Bhikaji Keshao v Brij Lal Nandlal AIR 1955 SC 610 [LNIND 1955 SC 46] [LNIND 1955 SC 46] [LNIND 1955 SC 46], Bhikaji
362 171
Page
Keshao v Brij Lal Nandlal [1955] 2 SCR 428 [LNIND 1955 SC 46] [LNIND 1955 SC 46] [LNIND 1955 SC 46], Bhikaji Keshao v
Brij Lal Nandlal (1955) SCJ 658 [LNIND 1955 SC 46] [LNIND 1955 SC 46] [LNIND 1955 SC 46]; Siemens Engineering and
Manufacturing Co of India v Union of India AIR 1976 SC 1785 [LNIND 1976 SC 202] [LNIND 1976 SC 202] [LNIND 1976 SC
202], Siemens Engineering and Manufacturing Co of India v Union of India (1976) 2 SCC 981 [LNIND 1976 SC 202] [LNIND
1976 SC 202] [LNIND 1976 SC 202], Siemens Engineering and Manufacturing Co of India v Union of India [1976] Supp SCR
489.
SC 149]; Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983
SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983
SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 1 Scale 864 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983
SC 35]; J K Iron and Steel Co Ltd, Kanpurv Iron and Steel Mazdoor Union, Kanpur v AIR 1956 SC 231 [LNIND 1955 SC 119]
[LNIND 1955 SC 119] [LNIND 1955 SC 119], J K Iron and Steel Co Ltd, Kanpurv Iron and Steel Mazdoor Union, Kanpur v
[1955] 2 SCR 1315 [LNIND 1955 SC 119] [LNIND 1955 SC 119] [LNIND 1955 SC 119], J K Iron and Steel Co Ltd, Kanpurv Iron
and Steel Mazdoor Union, Kanpur v (1956) SCJ 270; Clerks and Depot Cashiers of Calcutta Tramways Co Ltd v Calcutta
Tramways Co Ltd AIR 1957 SC 78 [LNIND 1956 SC 79] [LNIND 1956 SC 79] [LNIND 1956 SC 79], Clerks and Depot Cashiers
of Calcutta Tramways Co Ltd v Calcutta Tramways Co Ltd (1956) SCC 518 [LNIND 1956 SC 79] [LNIND 1956 SC 79] [LNIND
1956 SC 79], Clerks and Depot Cashiers of Calcutta Tramways Co Ltd v Calcutta Tramways Co Ltd [1956] SCR 772 [LNIND
1956 SC 79] [LNIND 1956 SC 79] [LNIND 1956 SC 79]; Hindustan Hosiery Industries v F H Lala AIR 1974 SC 526 [LNIND
1974 SC 33] [LNIND 1974 SC 33] [LNIND 1974 SC 33], Hindustan Hosiery Industries v F H Lala (1974) 4 SCC 316 [LNIND
1974 SC 33] [LNIND 1974 SC 33] [LNIND 1974 SC 33], Hindustan Hosiery Industries v F H Lala [1974] 3 SCR 302 [LNIND
1974 SC 33] [LNIND 1974 SC 33] [LNIND 1974 SC 33]; City Corner v Personal Assistant to Collector and Additional District
Magistrate, Nellore AIR 1976 SC 143 [LNIND 1975 SC 369] [LNIND 1975 SC 369] [LNIND 1975 SC 369], City Corner v
Personal Assistant to Collector and Additional District Magistrate, Nellore (1976) 1 SCC 124 [LNIND 1975 SC 369] [LNIND
1975 SC 369] [LNIND 1975 SC 369], City Corner v Personal Assistant to Collector and Additional District Magistrate, Nellore
9 Mohan Lal v Management of Bharat Electronics Ltd. AIR 1981 SC 1253 [LNIND 1981 SC 244] [LNIND 1981 SC 244] [LNIND
1981 SC 244], Mohan Lal v Management of Bharat Electronics Ltd. (1981) 3 SCC 225 [LNIND 1981 SC 244] [LNIND 1981 SC
244] [LNIND 1981 SC 244], Mohan Lal v Management of Bharat Electronics Ltd. [1981] 3 SCR 518 [LNIND 1981 SC 244]
[LNIND 1981 SC 244] [LNIND 1981 SC 244].
v Union of India [1976] 3 SCR 1042 [LNIND 1976 SC 158] [LNIND 1976 SC 158] [LNIND 1976 SC 158]; Hindustan Antibiotics
Ltd v Workmen AIR 1967 SC 948 [LNIND 1966 SC 319] [LNIND 1966 SC 319] [LNIND 1966 SC 319], Hindustan Antibiotics Ltd
v Workmen [1967] 1 SCR 652 [LNIND 1966 SC 319] [LNIND 1966 SC 319] [LNIND 1966 SC 319]; Mohan Lal v Management
of Bharat Electronics Ltd. AIR 1981 SC 1253 [LNIND 1981 SC 244] [LNIND 1981 SC 244] [LNIND 1981 SC 244], Mohan Lal v
Management of Bharat Electronics Ltd. (1981) 3 SCC 225 [LNIND 1981 SC 244] [LNIND 1981 SC 244] [LNIND 1981 SC 244],
Mohan Lal v Management of Bharat Electronics Ltd. [1981] 3 SCR 518 [LNIND 1981 SC 244] [LNIND 1981 SC 244] [LNIND
1981 SC 244].
11 L Michael v Johnson Pumps Ltd AIR 1975 SC 661 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55], L
Michael v Johnson Pumps Ltd (1975) 1 SCC 574 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55], L Michael v
Johnson Pumps Ltd [1975] 3 SCR 489 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55].
12 Baldeo Singh v Comr of Income-Tax Delhi and Ajmer AIR 1961 SC 736 [LNIND 1960 SC 191] [LNIND 1960 SC 191]
[LNIND 1960 SC 191], Baldeo Singh v Comr of Income-Tax Delhi and Ajmer [1961] 1 SCR 482 [LNIND 1960 SC 191] [LNIND
1960 SC 191] [LNIND 1960 SC 191], Baldeo Singh v Comr of Income-Tax Delhi and Ajmer (1960) 40 ITR 605 [LNIND 1960 SC
191] [LNIND 1960 SC 191] [LNIND 1960 SC 191]; Comr of Income-Tax v National Finance Ltd AIR 1963 SC 835 [LNIND 1962
SC 35] [LNIND 1962 SC 35] [LNIND 1962 SC 35], Comr of Income-Tax v National Finance Ltd [1962] Supp 2 SCR 865, Comr
of Income-Tax v National Finance Ltd (1962) 44 ITR 788 [LNIND 1962 SC 35] [LNIND 1962 SC 35] [LNIND 1962 SC 35].
13 Manoj Kumar Rai v Union of India AIR 1993 SC 882, Manoj Kumar Rai v Union of India (1993) Supp 2 SCC 355, Manoj
Kumar Rai v Union of India (1992) Supp JT 382.
SC 149]; Mohan Lal v Management of Bharat Electronics Ltd. AIR 1981 SC 1253 [LNIND 1981 SC 244] [LNIND 1981 SC 244]
[LNIND 1981 SC 244], Mohan Lal v Management of Bharat Electronics Ltd. (1981) 3 SCC 225 [LNIND 1981 SC 244] [LNIND
1981 SC 244] [LNIND 1981 SC 244], Mohan Lal v Management of Bharat Electronics Ltd. [1981] 3 SCR 518 [LNIND 1981 SC
244] [LNIND 1981 SC 244] [LNIND 1981 SC 244].
15 Union of India v M P Singh AIR 1990 SC 1098 [LNIND 1990 SC 111] [LNIND 1990 SC 111] [LNIND 1990 SC 111], Union of
India v M P Singh (1990) Supp SCC 701, Union of India v M P Singh [1990] 1 SCR 604 [LNIND 1990 SC 111] [LNIND 1990 SC
111] [LNIND 1990 SC 111] (mere rectification of the mistakes of the government or omissions by courts and tribunals ought not
to prompt parties or it to approach the SC by SLP for taking a chance or protecting some vested interest except for sake of
363 172
Page
justice or for laying down law for the benefit of the Court and its guidance).
16 Standard Vacuum Refining Co of India v Its Workmen AIR 1961 SC 895 [LNIND 1961 SC 25] [LNIND 1961 SC 25] [LNIND
1961 SC 25], Standard Vacuum Refining Co of India v Its Workmen [1961] 3 SCR 536 [LNIND 1961 SC 25] [LNIND 1961 SC
25] [LNIND 1961 SC 25], Standard Vacuum Refining Co of India v Its Workmen (1961) 1 LLJ 227 [LNIND 1961 SC 25] [LNIND
1961 SC 25] [LNIND 1961 SC 25].
17 Comr of Income-Tax, Bombay v H Holck Larsen AIR 1986 SC 1695 [LNIND 1986 SC 182] [LNIND 1986 SC 182] [LNIND
1986 SC 182], Comr of Income-Tax, Bombay v H Holck Larsen (1986) 3 SCC 364 [LNIND 1986 SC 182] [LNIND 1986 SC 182]
[LNIND 1986 SC 182], Comr of Income-Tax, Bombay v H Holck Larsen [1986] 2 SCR 1072; Delhi Cloth and General Mills Ltd v
Union of India AIR 1987 SC 2414 [LNIND 1987 SC 683] [LNIND 1987 SC 683] [LNIND 1987 SC 683], Delhi Cloth and General
Mills Ltd v Union of India (1988) 1 SCC 86 [LNIND 1987 SC 683] [LNIND 1987 SC 683] [LNIND 1987 SC 683], Delhi Cloth and
General Mills Ltd v Union of India [1988] 1 SCR 383 [LNIND 1987 SC 683] [LNIND 1987 SC 683] [LNIND 1987 SC 683].
18 Madhya Pradesh Industries Ltd v Union of India AIR 1966 SC 671 [LNIND 1965 SC 190] [LNIND 1965 SC 190] [LNIND
1965 SC 190], Madhya Pradesh Industries Ltd v Union of India [1966] 1 SCR 466 [LNIND 1965 SC 190] [LNIND 1965 SC 190]
[LNIND 1965 SC 190]; Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35]
[LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC 35]
[LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 1 Scale 864 [LNIND 1983 SC 35] [LNIND 1983 SC 35]
[LNIND 1983 SC 35]. See Municipal Board, Pushkar v State Transport Authority, Rajasthan AIR 1965 SC 458 [LNIND 1962 SC
383] [LNIND 1962 SC 383] [LNIND 1962 SC 383], Municipal Board, Pushkar v State Transport Authority, Rajasthan [1963]
Supp 2 SCR 373.
19 J Jose Dhanapaul v S Thomas 1996 3 SCC 587 [LNIND 1996 SC 402] [LNIND 1996 SC 402] [LNIND 1996 SC 402], J Jose
Dhanapaul v S Thomas (1996) 3 JT 197, J Jose Dhanapaul v S Thomas (1996) 2 LLJ 646 [LNIND 1996 SC 402] [LNIND 1996
SC 402] [LNIND 1996 SC 402].
20 Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala AIR 1961 SC 1669 [LNIND 1961 SC 206] [LNIND 1961 SC 206]
[LNIND 1961 SC 206] [LNIND 1961 SC 206], Harinagar Sugar Mills Ltd v Shyam Sunder Jhunjhunwala (1961) 31 CC 387;
Travancore Rayons Ltd v Union of India AIR 1971 SC 862 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439],
Travancore Rayons Ltd v Union of India (1969) 3 SCC 868 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439],
Travancore Rayons Ltd v Union of India [1970] 3 SCR 40 [LNIND 1969 SC 439] [LNIND 1969 SC 439] [LNIND 1969 SC 439];
Surendra Chauhan v State of Madhya Pradesh [2000] 4 LRI 62, Surendra Chauhan v State of Madhya Pradesh AIR 2000 SC
1436 [LNIND 2000 SC 515] [LNIND 2000 SC 515] [LNIND 2000 SC 515], Surendra Chauhan v State of Madhya Pradesh
(2000) 4 SCC 110 [LNIND 2000 SC 515] [LNIND 2000 SC 515] [LNIND 2000 SC 515] (Supreme Court does not, when hearing
appeals under art 136 of the Constitution, sit as a court of further appeals on facts, and does not interfere with findings given on
a consideration of evidence, unless they are perverse or based on no evidence).
21 Kays Constructions Co (Pvt) Ltd v Its Workmen AIR 1959 SC 208 [LNIND 1958 SC 124] [LNIND 1958 SC 124] [LNIND
1958 SC 124], Kays Constructions Co (Pvt) Ltd v Its Workmen (1958) 2 LLJ 660 [LNIND 1958 SC 124] [LNIND 1958 SC 124]
[LNIND 1958 SC 124]; Hindustan Antibiotics Ltd v Workmen AIR 1967 SC 948 [LNIND 1966 SC 319] [LNIND 1966 SC 319]
[LNIND 1966 SC 319], Hindustan Antibiotics Ltd v Workmen [1967] 1 SCR 652 [LNIND 1966 SC 319] [LNIND 1966 SC 319]
[LNIND 1966 SC 319]; Hansraj Gupta & Co v Union of India AIR 1973 SC 2724, Hansraj Gupta & Co v Union of India (1973) 2
SCC 637, Hansraj Gupta & Co v Union of India (1973) UJ 821 (the SC is not ordinarily called upon to reassess the evidence on
an appeal by special leave); Chief Administrator-cum-Joint Secretary, Government of India v Dipak Chandra Das AIR 1999 SC
186 [LNIND 1998 SC 1183] [LNIND 1998 SC 1183] [LNIND 1998 SC 1183], Chief Administrator-cum-Joint Secretary,
Government of India v Dipak Chandra Das (1998) 6 JT 376, Chief Administrator-cum-Joint Secretary, Government of India v
Dipak Chandra Das (1998) 5 Scale 292 [LNIND 1998 SC 1183] [LNIND 1998 SC 1183] [LNIND 1998 SC 1183].
22 Jamuna Prasad Mukhariya v Lachhi Ram AIR 1954 SC 686 [LNIND 1954 SC 117] [LNIND 1954 SC 117] [LNIND 1954 SC
117], Jamuna Prasad Mukhariya v Lachhi Ram [1955] SCR 608 [LNIND 1954 SC 117] [LNIND 1954 SC 117] [LNIND 1954 SC
117], Jamuna Prasad Mukhariya v Lachhi Ram (1954) SCJ 835 [LNIND 1954 SC 117] [LNIND 1954 SC 117] [LNIND 1954 SC
117]; L Michael v Johnson Pumps Ltd AIR 1975 SC 661 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55]at 667,
L Michael v Johnson Pumps Ltd (1975) 1 SCC 574 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55], L Michael v
Johnson Pumps Ltd [1975] 3 SCR 489 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55]. Court's attitude is to
concern itself with seeing 'whether a tribunal of reasonable and unbiased men could judicially reach such a conclusion'.
23 Workmen of the Motipur Sugar Factory Pvt Ltd v Motipur Sugar Factory Pvt Ltd AIR 1965 SC 1803 [LNIND 1965 SC 109]
[LNIND 1965 SC 109] [LNIND 1965 SC 109], Workmen of the Motipur Sugar Factory Pvt Ltd v Motipur Sugar Factory Pvt Ltd
[1965] 3 SCR 588 [LNIND 1965 SC 109] [LNIND 1965 SC 109] [LNIND 1965 SC 109], Workmen of the Motipur Sugar Factory
Pvt Ltd v Motipur Sugar Factory Pvt Ltd (1965) 2 LLJ 162 [LNIND 1965 SC 109] [LNIND 1965 SC 109] [LNIND 1965 SC 109];
Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35],
Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35],
Bhagat Ram v State of Himachal Pradesh (1983) 1 Scale 864 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35];
Shaw Wallace & Co v Workmen AIR 1978 SC 977 [LNIND 1978 SC 30] [LNIND 1978 SC 30] [LNIND 1978 SC 30], Shaw
Wallace & Co v Workmen (1977) 2 SCC 45, Shaw Wallace & Co v Workmen (1978) 2 SCJ 185 [LNIND 1978 SC 30] [LNIND
1978 SC 30] [LNIND 1978 SC 30]; Radhakrishna Dash v Administrative Tribunal, Bhubaneshwar, Orissa AIR 1988 SC 674,
Radhakrishna Dash v Administrative Tribunal, Bhubaneshwar, Orissa (1988) 2 SCC 229, Radhakrishna Dash v Administrative
Tribunal, Bhubaneshwar, Orissa (1988) 1 JT 157.
364 173
Page
298] [LNIND 1954 SC 298].
25 Pipraich Sugar Mills v Pipraich Sugar Mills Mazdoor Union AIR 1957 SC 95 [LNIND 1956 SC 84] [LNIND 1956 SC 84]
[LNIND 1956 SC 84], Pipraich Sugar Mills v Pipraich Sugar Mills Mazdoor Union [1956] SCR 872 [LNIND 1956 SC 84] [LNIND
1956 SC 84] [LNIND 1956 SC 84], Pipraich Sugar Mills v Pipraich Sugar Mills Mazdoor Union (1957) SCA 28 [LNIND 1956 SC
84] [LNIND 1956 SC 84] [LNIND 1956 SC 84].
26 Jamuna Prasad Mukhariya v Lachhi Ram AIR 1954 SC 686 [LNIND 1954 SC 117] [LNIND 1954 SC 117] [LNIND 1954 SC
117], Jamuna Prasad Mukhariya v Lachhi Ram [1955] SCR 608 [LNIND 1954 SC 117] [LNIND 1954 SC 117] [LNIND 1954 SC
117], Jamuna Prasad Mukhariya v Lachhi Ram (1954) SCJ 835 [LNIND 1954 SC 117] [LNIND 1954 SC 117] [LNIND 1954 SC
117]; L Michael v Johnson Pumps Ltd AIR 1975 SC 661 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55], L
Michael v Johnson Pumps Ltd (1975) 1 SCC 574 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55], L Michael v
Johnson Pumps Ltd [1975] 3 SCR 489 [LNIND 1975 SC 55] [LNIND 1975 SC 55] [LNIND 1975 SC 55].
27 National Engineering Industries Ltd, Jaipur v Hanuman AIR 1968 SC 33 [LNIND 1967 SC 212] [LNIND 1967 SC 212]
[LNIND 1967 SC 212], National Engineering Industries Ltd, Jaipur v Hanuman [1968] 1 SCR 54 [LNIND 1967 SC 212] [LNIND
1967 SC 212] [LNIND 1967 SC 212], National Engineering Industries Ltd, Jaipur v Hanuman (1968) 1 SCJ 651 [LNIND 1967
SC 212] [LNIND 1967 SC 212] [LNIND 1967 SC 212]; Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND
1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND
1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 1 Scale 864 [LNIND
1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35]; Bank of India v Degala Suryanarayana AIR 1999 SC 2407 [LNIND
1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC 580], Bank of India v Degala Suryanarayana (1999) 4 JT 489 [LNIND
1999 SC 580] [LNIND 1999 SC 580] [LNIND 1999 SC 580], Bank of India v Degala Suryanarayana (1999) 4 Scale 75 [LNIND
28 D Macropollo & Co (Pvt) Ltd v D Macropollo & Co (Pvt) Ltd, Employees' Union AIR 1958 SC 1012 [LNIND 1958 SC 87]
[LNIND 1958 SC 87] [LNIND 1958 SC 87], D Macropollo & Co (Pvt) Ltd v D Macropollo & Co (Pvt) Ltd, Employees' Union
(1958) 2 LLJ 492 [LNIND 1958 SC 87] [LNIND 1958 SC 87] [LNIND 1958 SC 87] (where the finding of fact is not supported by
any legal evidence and is wholly inconsistent with the material produced on record, the SC may go into evidence and set aside
the findings under art 136).
29 Oil and Natural Gas Commission v Workmen AIR 1973 SC 968 [LNIND 1972 SC 470] [LNIND 1972 SC 470] [LNIND 1972
SC 470], Oil and Natural Gas Commission v Workmen (1973) 3 SCC 535 [LNIND 1972 SC 470] [LNIND 1972 SC 470] [LNIND
1972 SC 470], Oil and Natural Gas Commission v Workmen [1973] 2 SCR 482 [LNIND 1972 SC 470] [LNIND 1972 SC 470]
[LNIND 1972 SC 470].
30 Union of India v KN Sivadas AIR 1997 SC 3100 [LNIND 1997 SC 1038] [LNIND 1997 SC 1038] [LNIND 1997 SC 1038],
Union of India v KN Sivadas (1997) 7 SCC 30 [LNIND 1997 SC 1038] [LNIND 1997 SC 1038] [LNIND 1997 SC 1038], Union of
India v KN Sivadas (1997) 7 JT 202.
31 Tata Iron and Steel Co Ltd v S N Modak AIR 1966 SC 380 [LNIND 1965 SC 87] [LNIND 1965 SC 87] [LNIND 1965 SC 87],
Tata Iron and Steel Co Ltd v S N Modak [1965] 3 SCR 411 [LNIND 1965 SC 87] [LNIND 1965 SC 87] [LNIND 1965 SC 87];
National Seeds Corp Ltd v Prem Prakash Jain 1998 8 SCC 500; Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher
(decd) through LRS AIR 2000 SC 931 [LNIND 2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406], Mohan Amba
Prasad Agnihotri v Bhaskar Balwant Aher (decd) through LRS (2000) 3 SCC 190 [LNIND 2000 SC 406] [LNIND 2000 SC 406]
[LNIND 2000 SC 406], Mohan Amba Prasad Agnihotri v Bhaskar Balwant Aher (decd) through LRS (2000) 2 JT 558 [LNIND
2000 SC 406] [LNIND 2000 SC 406] [LNIND 2000 SC 406];
32 Mehar Singh v Shiromani Gurudwara Prabandhak Committee AIR 2000 SC 492 [LNIND 1999 SC 1147] [LNIND 1999 SC
1147] [LNIND 1999 SC 1147], Mehar Singh v Shiromani Gurudwara Prabandhak Committee (2000) 2 SCC 97 [LNIND 1999 SC
1147] [LNIND 1999 SC 1147] [LNIND 1999 SC 1147], Mehar Singh v Shiromani Gurudwara Prabandhak Committee (2000) 10
JT 85; Medimpex (India) Pvt Ltd v Drug Controller-cum-Chief Licensing Authority AIR 1990 SC 544, Medimpex (India) Pvt Ltd v
Drug Controller-cum-Chief Licensing Authority (1989) Supp 2 SCC 665, Medimpex (India) Pvt Ltd v Drug Controller-cum-Chief
Licensing Authority (1989) 4 JT 512 (the Drug Controller's finding that the appellant's renewed license was forged and
fabricated was affirmed by the high court; in the appeal before the Supreme Court under art 136, the orders of the Drug
Controller and that of the high court were challenged as erroneous by producing a certificate by the licensing authority that the
renewed certificate bore his signature; this certificate had not been produced before the Drug Controller or the high court. The
Supreme Court refused to take the certificate into consideration. The Court also refused to interfere with the findings of the Drug
Controller being essentially a finding of fact based on material placed before him).
298] [LNIND 1954 SC 298].
34 Registrar of Trade Marks v Ashok Chandra Rakhit Ltd AIR 1955 SC 558 [LNIND 1955 SC 38] [LNIND 1955 SC 38] [LNIND
1955 SC 38], Registrar of Trade Marks v Ashok Chandra Rakhit Ltd [1955] 2 SCR 252 [LNIND 1955 SC 38] [LNIND 1955 SC
38] [LNIND 1955 SC 38], Registrar of Trade Marks v Ashok Chandra Rakhit Ltd (1955) SCJ 562 [LNIND 1955 SC 38] [LNIND
1955 SC 38] [LNIND 1955 SC 38]; Bishambhar Nath Kohli v State of Uttar Pradesh AIR 1966 SC 573 [LNIND 1965 SC 256]
[LNIND 1965 SC 256] [LNIND 1965 SC 256], Bishambhar Nath Kohli v State of Uttar Pradesh [1966] 2 SCR 158 [LNIND 1965
365 174
Page
SC 256] [LNIND 1965 SC 256] [LNIND 1965 SC 256]; Union of India v West Coast Paper Mills Ltd AIR 1971 SC 349 [LNIND
1970 SC 418] [LNIND 1970 SC 418] [LNIND 1970 SC 418], Union of India v West Coast Paper Mills Ltd (1970) 3 SCC 606
[LNIND 1970 SC 418] [LNIND 1970 SC 418] [LNIND 1970 SC 418], Union of India v West Coast Paper Mills Ltd [1971] 2 SCR
35 Sangram Singh v Election Tribunal, Kotah AIR 1955 SC 425 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2],
Sangram Singh v Election Tribunal, Kotah [1955] 2 SCR 1 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2],
Sangram Singh v Election Tribunal, Kotah (1955) SCJ 431 [LNIND 1955 SC 2] [LNIND 1955 SC 2] [LNIND 1955 SC 2];
National Engineering Industries Ltd v Its Workmen AIR 1968 SC 538 [LNIND 1967 SC 294] [LNIND 1967 SC 294] [LNIND 1967
SC 294], National Engineering Industries Ltd v Its Workmen [1968] 1 SCR 779 [LNIND 1967 SC 294] [LNIND 1967 SC 294]
[LNIND 1967 SC 294], National Engineering Industries Ltd v Its Workmen (1968) Lab IC 531 [LNIND 1969 ORI 116] [LNIND
1969 ORI 116] [LNIND 1969 ORI 116]; Hindustan Steels Ltd v A K Roy AIR 1970 SC 1401 [LNIND 1969 SC 497] [LNIND 1969
SC 497] [LNIND 1969 SC 497], Hindustan Steels Ltd v A K Roy [1970] 3 SCR 343 [LNIND 1969 SC 497] [LNIND 1969 SC 497]
[LNIND 1969 SC 497], Hindustan Steels Ltd v A K Roy (1970) 2 SCJ 77 [LNIND 1969 SC 497] [LNIND 1969 SC 497] [LNIND
1969 SC 497].
36 UC Bank v Secy, UP Bank Union AIR 1953 SC 437 [LNIND 1952 SC 47] [LNIND 1952 SC 47] [LNIND 1952 SC 47]; Nain
Singh Bhakuni v Union of India AIR 1998 SC 622 [LNIND 1998 SC 16] [LNIND 1998 SC 16] [LNIND 1998 SC 16], Nain Singh
Bhakuni v Union of India (1998) 3 SCC 348 [LNIND 1998 SC 16] [LNIND 1998 SC 16] [LNIND 1998 SC 16], Nain Singh
Bhakuni v Union of India (1998) 1 JT 43; Bharat Fire and General Insurance Ltd, New Delhi v Comr of Income-Tax AIR 1964
SC 1800 [LNIND 1964 SC 124] [LNIND 1964 SC 124] [LNIND 1964 SC 124], Bharat Fire and General Insurance Ltd, New Delhi
v Comr of Income-Tax [1964] 7 SCR 626 [LNIND 1964 SC 124] [LNIND 1964 SC 124] [LNIND 1964 SC 124], Bharat Fire and
General Insurance Ltd, New Delhi v Comr of Income-Tax (1964) 2 SCJ 434 (questions whether premium received on issue of
share capital are gains within the Income Tax Act 1922 s 2(6A) explanation); Moulin Rouge Pvt Ltd v Commercial Tax Officer
AIR 1998 SC 219 [LNIND 1997 SC 1693] [LNIND 1997 SC 1693] [LNIND 1997 SC 1693], Moulin Rouge Pvt Ltd v Commercial
Tax Officer (1998) 1 SCC 70 [LNIND 1997 SC 1693] [LNIND 1997 SC 1693] [LNIND 1997 SC 1693], Moulin Rouge Pvt Ltd v
Commercial Tax Officer (1997) 9 JT 83; Padmavati Jaikrishna v Additional Comr of Income-Tax AIR 1987 SC 1723 [LNIND
1987 SC 414] [LNIND 1987 SC 414] [LNIND 1987 SC 414], Padmavati Jaikrishna v Additional Comr of Income-Tax (1987) 3
SCC 448 [LNIND 1987 SC 414] [LNIND 1987 SC 414] [LNIND 1987 SC 414], Padmavati Jaikrishna v Additional Comr of
Income-Tax [1987] 2 SCR 1167 [LNIND 1987 SC 414] [LNIND 1987 SC 414] [LNIND 1987 SC 414]; H F Sangati v Registrar
General, High Court of Karnataka [2001] 2 LRI 919, H F Sangati v Registrar General, High Court of Karnataka AIR 2001 SC
1148 [LNIND 2001 SC 531] [LNIND 2001 SC 531] [LNIND 2001 SC 531], H F Sangati v Registrar General, High Court of
Karnataka (2001) 3 SCC 117 [LNIND 2001 SC 531] [LNIND 2001 SC 531] [LNIND 2001 SC 531]; De-okinandan Sharma v
Union of India AIR 2001 SC 1767, De-okinandan Sharma v Union of India (2001) 5 SCC 340, De-okinandan Sharma v Union of
India (2001) 1 LLJ 1589
37 Management of the State Bank of Hyderabad v Vasudev Anand Bhide AIR 1970 SC 196 [LNIND 1969 SC 181] [LNIND
1969 SC 181] [LNIND 1969 SC 181], Management of the State Bank of Hyderabad v Vasudev Anand Bhide [1970] 1 SCR 365
[LNIND 1969 SC 181] [LNIND 1969 SC 181] [LNIND 1969 SC 181], Management of the State Bank of Hyderabad v Vasudev
Anand Bhide (1970) 1 SCA 469 [LNIND 1969 SC 181] [LNIND 1969 SC 181] [LNIND 1969 SC 181]; Assistant Collector of
Central Excise CA,lcutta v National Tobacco Co of India AIR 1972 SC 2563 [LNIND 1972 SC 357] [LNIND 1972 SC 357]
[LNIND 1972 SC 357], Assistant Collector of Central Excise CA,lcutta v National Tobacco Co of India (1972) 2 SCC 560 [LNIND
1972 SC 357] [LNIND 1972 SC 357] [LNIND 1972 SC 357], Assistant Collector of Central Excise CA,lcutta v National Tobacco
Co of India [1973] 1 SCR 822 [LNIND 1972 SC 357] [LNIND 1972 SC 357] [LNIND 1972 SC 357]; (the Court would refuse a
question to be developed before it when it has neither been urged before the high court nor before the appellate tribunal);
Workmen represented by Secretary v Management of Reptakos Brett & Co Ltd AIR 1992 SC 504 [LNIND 1991 SC 571] [LNIND
1991 SC 571] [LNIND 1991 SC 571], Workmen represented by Secretary v Management of Reptakos Brett & Co Ltd (1992) 1
SCC 290 [LNIND 1991 SC 571] [LNIND 1991 SC 571] [LNIND 1991 SC 571], Workmen represented by Secretary v
Management of Reptakos Brett & Co Ltd (1992) 4 JT 243
Durga Shankar Mehta v Raghuraj Singh (1954) SCJ 723.

APPEAL AND DISMISSAL OF APPEAL/[005.248] Effect of dismissal of special leave petition
[005.248] Effect of dismissal of special leave petition When a special leave petition1 is dismissed in
limine by the Supreme Court, without giving any reasons, all that the Court decides in such a situation is that
it was not a fit case where special leave to appeal should have been granted under the power conferred on it
by the Consitution2.
366 175
Page
A non-speaking order or a speaking order refusing special leave to appeal does not attract the doctrine of
merger. An order refusing special leave to appeal does not stand substituted in place of the order under
challenge3. Hence, summary dismissal of the special leave petition does not create res judicata by laying
down any law as envisaged by the Constitution4. Furthermore, the aggrieved party may pursue any statutory
remedy, which may be open to him to challenge the decision in question. For instance, he may move a writ
petition in the high court to challenge the decision5, or may file a petition in the high court to review its own
decision6.
The situation is different when the special leave petition is dismissed through a reasoned or speaking order.
Whatever the Court says in its dismissal order amounts to law and is binding on the parties as well as the
courts and tribunals7.
Furthermore, where a special leave petition filed against a high court order is withdrawn without obtaining
leave from the Supreme Court to file another special leave petition, a fresh special leave petition against the
same decision is not maintainable. The ban on filing a fresh special leave petition is based on public policy8.
1 As to special leave petition see [005.242]: [80]CONSTITUTIONAL LAW.
[LNIND 2000 SC 933] [LNIND 2000 SC 933].
4 Ie the Constitution of India art 141 (art 141 states that the law declared by the Supreme Court shall be binding on all courts
within the territory of India). See Comr of Income Tax, Bangalore v Shree Manjunathesware Packing Products and Camphor
Works AIR 1998 SC 1478 [LNIND 1997 SC 1537] [LNIND 1997 SC 1537] [LNIND 1997 SC 1537], Comr of Income Tax,
Bangalore v Shree Manjunathesware Packing Products and Camphor Works (1998) 1 SCC 598 [LNIND 1997 SC 1537] [LNIND
1997 SC 1537] [LNIND 1997 SC 1537], Comr of Income Tax, Bangalore v Shree Manjunathesware Packing Products and
Camphor Works (1997) 9 JT 583 (summary dismissal of special leave petitions would not mean that the Court approved the
view that was taken by the high court).
5 Ie under the Constitution of India art 226. Workmen of Cochin Port Trust v Board of Trustees of the Cochin Port Trust AIR
1978 SC 1283 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158], Workmen of Cochin Port Trust v Board of
Trustees of the Cochin Port Trust (1978) 3 SCC 119 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158],
Workmen of Cochin Port Trust v Board of Trustees of the Cochin Port Trust (1978) 2 SCJ 518 [LNIND 1978 SC 158] [LNIND
1978 SC 158] [LNIND 1978 SC 158]; Indian Oil Corpn Ltd v State of Bihar AIR 1986 SC 1780 [LNIND 1986 SC 262] [LNIND
1986 SC 262] [LNIND 1986 SC 262], Indian Oil Corpn Ltd v State of Bihar (1986) 4 SCC 146 [LNIND 1986 SC 262] [LNIND
1986 SC 262] [LNIND 1986 SC 262], Indian Oil Corpn Ltd v State of Bihar [1986] 3 SCR 553 [LNIND 1986 SC 262] [LNIND
1986 SC 262] [LNIND 1986 SC 262] (the grant of leave under art 226 cannot be refused merely because a Special Leave
Petition filed by the petitioner in the Supreme Court had been dismissed by a non-speaking order): see [005.064].
6 Indian Oil Corpn Ltd v State of Bihar AIR 1986 SC 1780 [LNIND 1986 SC 262] [LNIND 1986 SC 262] [LNIND 1986 SC 262],
Indian Oil Corpn Ltd v State of Bihar (1986) 4 SCC 146 [LNIND 1986 SC 262] [LNIND 1986 SC 262] [LNIND 1986 SC 262],
Indian Oil Corpn Ltd v State of Bihar [1986] 3 SCR 553 [LNIND 1986 SC 262] [LNIND 1986 SC 262] [LNIND 1986 SC 262];
Rup Diamonds v Union of India AIR 1989 SC 674 [LNIND 1989 SC 643] [LNIND 1989 SC 643] [LNIND 1989 SC 643], Rup
Diamonds v Union of India (1989) 2 SCC 356 [LNIND 1989 SC 643] [LNIND 1989 SC 643] [LNIND 1989 SC 643], Rup
Diamonds v Union of India [1989] 1 SCR 13 [LNIND 1989 SC 643] [LNIND 1989 SC 643] [LNIND 1989 SC 643]; Supreme
Court Employees Welfare Association v India AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351] [LNIND 1989 SC
351], Supreme Court Employees Welfare Association v India (1989) 4 SCC 187 [LNIND 1989 SC 351] [LNIND 1989 SC 351]
[LNIND 1989 SC 351], Supreme Court Employees Welfare Association v India [1989] 3 SCR 488 [LNIND 1989 SC 351] [LNIND
1989 SC 351] [LNIND 1989 SC 351]; Yogendra Narayana Chowdhary v Union of India AIR 1996 SC 571 [LNIND 1995 SC
1079] [LNIND 1995 SC 1079] [LNIND 1995 SC 1079], Yogendra Narayana Chowdhary v Union of India (1996) 7 SCC 1 [LNIND
1995 SC 1214] [LNIND 1995 SC 1214] [LNIND 1995 SC 1214], Yogendra Narayana Chowdhary v Union of India (1995) 9 JT
112; VM Salgaocar & Bros (Pvt Ltd) v Comr of Income-Tax AIR 2000 SC 1623 [LNIND 2000 SC 638] [LNIND 2000 SC 638]
[LNIND 2000 SC 638], VM Salgaocar & Bros (Pvt Ltd) v Comr of Income-Tax (2000) 5 SCC 373 [LNIND 2000 SC 638] [LNIND
2000 SC 638] [LNIND 2000 SC 638], VM Salgaocar & Bros (Pvt Ltd) v Comr of Income-Tax (2000) 4 JT 473; Kunhayammed v
State of Kerala [2000] 3 LRI 523, Kunhayammed v State of Kerala AIR 2000 SC 2587 [LNIND 2000 SC 933] [LNIND 2000 SC
933] [LNIND 2000 SC 933], Kunhayammed v State of Kerala (2000) 6 SCC 359 [LNIND 2000 SC 933] [LNIND 2000 SC 933]
[LNIND 2000 SC 933].
The Court has overruled its earlier view expressed to the contrary in several cases eg, Sree Narayana Dharmasanghom Trust
v Swami Prakasananda 1997 6 SCC 78 [LNIND 1997 SC 667] [LNIND 1997 SC 667] [LNIND 1997 SC 667]; State of
Maharashtra v Prabhakar Bhikaji Ingle AIR 1996 SC 3069 [LNINDORD 1996 SC 195] [LNINDORD 1996 SC 195] [LNINDORD
367 176
Page
1996 SC 195], State of Maharashtra v Prabhakar Bhikaji Ingle (1996) 3 SCC 463 [LNINDORD 1996 SC 195] [LNINDORD 1996
SC 195] [LNINDORD 1996 SC 195]; State of Maharashtra v Prabhakar Bhikaji Ingle (1996) 3 JT 567 [LNINDORD 1996 SC 195]
[LNINDORD 1996 SC 195] [LNINDORD 1996 SC 195]. As to review power of the high court see [005.211] and following.
7 Union of India v All India Services Pensioners Association AIR 1988 SC 501 [LNIND 1988 SC 26] [LNIND 1988 SC 26]
[LNIND 1988 SC 26], Union of India v All India Services Pensioners Association (1988) 2 SCC 580 [LNIND 1988 SC 26] [LNIND
1988 SC 26] [LNIND 1988 SC 26], Union of India v All India Services Pensioners Association [1988] 2 SCR 697 [LNIND 1988
SC 26] [LNIND 1988 SC 26] [LNIND 1988 SC 26] (when the Supreme Court cites reasons while dismissing a special leave
petition, the decision becomes one which attracts art 141 of the Constitution).
8 Upadhyay & Co v State of Uttar Pradesh AIR 1999 SC 509, Upadhyay & Co v State of Uttar Pradesh (1999) 1 SCC 81,
Upadhyay & Co v State of Uttar Pradesh (1998) 8 JT 257; Union of India v Sher Singh AIR 1997 SC 1796 [LNIND 1997 SC
1941] [LNIND 1997 SC 1941] [LNIND 1997 SC 1941], Union of India v Sher Singh (1997) 3 SCC 555 [LNIND 1997 SC 1941]
[LNIND 1997 SC 1941] [LNIND 1997 SC 1941], Union of India v Sher Singh (1997) 2 JT 659 [LNIND 1997 SC 1941] [LNIND
1997 SC 1941] [LNIND 1997 SC 1941]; Yogendra Narayana Chowdhary v Union of India AIR 1996 SC 571 [LNIND 1995 SC
1079] [LNIND 1995 SC 1079] [LNIND 1995 SC 1079], Yogendra Narayana Chowdhary v Union of India (1996) 7 SCC 1 [LNIND
1995 SC 1214] [LNIND 1995 SC 1214] [LNIND 1995 SC 1214], Yogendra Narayana Chowdhary v Union of India (1995) 9 JT
112.

APPEAL AND DISMISSAL OF APPEAL/[005.249] Dismissal of appeal
[005.249] Dismissal of appeal Subsequent to the Supreme court granting leave to appeal1, the appeal is
heard and decided by the Court2.
The Court may dismiss the appeal with or without giving reasons for the same, or may pass an order of
reversal, modification or merely affirmation of the decision of the lower court or tribunal3. Dismissal of appeal
is final and the original decision appealed against can neither be challenged through a writ petition, nor can
the lower court or tribunal review its decision against which the Supreme Court has disposed of the appeal4.
1 Ie under the Consttitution of Indiaart 136: see [005.242].
2 As to stages of hearing the petition for special leave see [005.243] note 2.
3 As to effect of dismissal of special leave petition see [005.248].
[LNIND 2000 SC 933] [LNIND 2000 SC 933].

ADMINISTRATIVE LAW/19. APPEAL TO SUPREME COURT BY SPECIAL LEAVE/(3)
APPLICABILITY/[005.250] Exhaustion of remedies
[005.250] Exhaustion of remedies The Court has imposed on itself a restriction that before invoking the
jurisdiction of the Court to grant special leave to appeal1 the aggrieved party must exhaust any remedy which
may be available under the law before the lower appellate authority or the high court2. Where an appellant
having reached the high court by way of reference from the income tax tribunal, and getting an adverse
verdict there, seeks to appeal to the Supreme Court from the tribunal's decision, and not from the high court's
decision on the ground of raising new questions not referred to the high court previously, the Supreme Court
usually refuses to hear such appeals since it does not permit by-passing of the high court3.
However, the rule of exhaustion of remedies is not inflexible and special circumstances may warrant the
368 177
Page
Court to relax the rule4. For instance, the Supreme Court does not hear an appeal from the decision of a
single judge of the high court, as such an appeal ought to go to the division bench of the high court.
However, the restriction is self-imposed and where the high court judge commits a patent error, the Supreme
Court may relax the rule and hear an appeal from the single judge5.
2 See Indian Aluminium Co Ltd v Comr of Income-Tax, West Bengal AIR 1962 SC 1619, Indian Aluminium Co Ltd v Comr of
Income-Tax, West Bengal (1961) 43 ITR 532; Ballabhdas Agrawal v State of Bihar AIR 1966 SC 814 [LNIND 1965 SC 107]
[LNIND 1965 SC 107] [LNIND 1965 SC 107], Ballabhdas Agrawal v State of Bihar [1962] Supp 2 SCR 967, Ballabhdas Agrawal
v State of Bihar (1962) 13 STC 278 [LNIND 1962 SC 49] [LNIND 1962 SC 49] [LNIND 1962 SC 49] (the Court discourages the
practice resorted to by appellants, of taking recourse to the Supreme Court straightaway from the income tax tribunal without
first resorting to the statutorily provided technique of having a reference made by the tribunal to the concerned high court).
3 Ballabhdas Agrawal v State of Bihar AIR 1966 SC 814 [LNIND 1965 SC 107] [LNIND 1965 SC 107] [LNIND 1965 SC 107],
Ballabhdas Agrawal v State of Bihar [1962] Supp 2 SCR 967, Ballabhdas Agrawal v State of Bihar (1962) 13 STC 278 [LNIND
1962 SC 49] [LNIND 1962 SC 49] [LNIND 1962 SC 49] (permitting by-passing of the high would result in a conflict of decisions
between the Supreme Court and the high court).
4 Mahadayal Prem Chandra v Commercial Tax Officer CA,lcutta AIR 1958 SC 667 [LNIND 1958 SC 53] [LNIND 1958 SC 53]
[LNIND 1958 SC 53], Mahadayal Prem Chandra v Commercial Tax Officer CA,lcutta [1959] SCR 551, Mahadayal Prem
Chandra v Commercial Tax Officer CA,lcutta (1958) SCJ 728 (the Supreme Court heard appeal from the CTO's order, without
the appellant having exhausted all his remedies, because the parties did not raise this point in the court, and, more importantly,
the assessing officer (CT).) had not exercised his own judgment in the matter of assessment but had followed, even against his
own judgment, the instructions given to him by his superior officer, without the assessee having been given an opportunity to
meet the point made against him by the superior officer. In effect, the assessment had been made behind the back of the
assessee and there was thus breach of natural justice). Dhakeswari Cotton Mills Ltd v Comr of Income-Tax, West Bengal AIR
1955 SC 65 [LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149], Dhakeswari Cotton Mills Ltd v Comr of
Income-Tax, West Bengal [1955] 1 SCR 951, Dhakeswari Cotton Mills Ltd v Comr of Income-Tax, West Bengal (1955) SCJ 122
[LNIND 1954 SC 149] [LNIND 1954 SC 149] [LNIND 1954 SC 149]. (the income tax tribunal refused to state a case to the high
court; the high court, when approached by the assessee, also refused to ask the tribunal to state a case to it and also to grant
leave to appeal to the Supreme Court. The Supreme Court heard the appeal from the tribunal's order as there was a breach of
natural justice). Baldeo Singh v Comr of Income-Tax Delhi and Ajmer AIR 1961 SC 736 [LNIND 1960 SC 191] [LNIND 1960 SC
191] [LNIND 1960 SC 191], Baldeo Singh v Comr of Income-Tax Delhi and Ajmer [1961] 1 SCR 482 [LNIND 1960 SC 191]
[LNIND 1960 SC 191] [LNIND 1960 SC 191], Baldeo Singh v Comr of Income-Tax Delhi and Ajmer (1960) 40 ITR 605 [LNIND
1960 SC 191] [LNIND 1960 SC 191] [LNIND 1960 SC 191] (the Supreme Court heard an appeal from the Income Tax Tribunal
as the assessee had lost his remedy of reference to the high court from the tribunal due to delay of one day without any fault on
his part. The Supreme Court granted special leave to appeal from the order of the Asst. Sales Tax Commissioner, without
exhaustion of remedies under the law, as it would have been futile for the assessee to go to the high court because on the point
in issue it had already given a ruling in another case which was adverse to the assessee. The Supreme Court felt that it was
one of those extraordinary cases where the ends of justice would be better served by granting appeal and thus avoiding a
circuity of action).
5 State of Uttar Pradesh v Harish Chandra AIR 1996 SC 2173 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624] [LNIND 1996 SC
2624], State of Uttar Pradesh v Harish Chandra (1996) 9 SCC 309 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624] [LNIND 1996
SC 2624], State of Uttar Pradesh v Harish Chandra (1996) 4 JT 414.

APPLICABILITY/[005.251] Condonation of delay
[005.251] Condonation of delay A petition for special leave to appeal must be filed without undue delay
although the provision prescribes no period of limitation for the purpose1. However, the Court is empowered
to condone delay in approaching it, to enable it to do substantial justice to the parties concerned if the
petitioner makes out sufficient cause for the delay which persuades the court to condone the delay in filing
petition2. Petitions seeking leave of the Court to appeal are usually dismissed if the delay is unexplained3.
Condonation of delay is a matter of discretion of the Court and depends on the acceptability of the
explanation and not the length of delay4.
369 178
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The Court is liberal in condoning delay when the government is the appellant since, bureaucratic delay is
inevitable, and where the state is denied an opportunity to appeal because of delay, it may be the loss of the
society as a whole5.
1 Ie the Constitution of India art 136. As to special leave petition see [005.242] and following.
2 Union of India v Cynamide India Ltd AIR 1987 SC 1802 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990],
Union of India v Cynamide India Ltd [1987] 2 SCR 841 [LNIND 1987 SC 990] [LNIND 1987 SC 990] [LNIND 1987 SC 990];
Harsharan Verma v Union of India AIR 1987 SC 1969, Harsharan Verma v Union of India (1987) SUPP SCC 310, Harsharan
Verma v Union of India (1987) 3 JT 62; State of Uttar Pradesh v Rafiquddin AIR 1988 SC 162 [LNIND 1987 SC 739] [LNIND
1987 SC 739] [LNIND 1987 SC 739], State of Uttar Pradesh v Rafiquddin (1987) Supp SCC 401, State of Uttar Pradesh v
Rafiquddin [1988] 1 SCR 794 [LNIND 1987 SC 739] [LNIND 1987 SC 739] [LNIND 1987 SC 739]; Madurai Kamaraj University
v K Rajayyan AIR 1988 SC 385, Madurai Kamaraj University v K Rajayyan (1988) Supp SCC 97, Madurai Kamaraj University v
K Rajayyan (1987) 4 JT 531; State of Bihar v Kameshwar Prasad Singh AIR 2000 SC 2306 [LNIND 2000 SC 758] [LNIND
2000 SC 758] [LNIND 2000 SC 758], State of Bihar v Kameshwar Prasad Singh AIR 2000 SCW 2389, State of Bihar v
Kameshwar Prasad Singh (2000) 5 JT 389 [LNIND 2000 SC 758] [LNIND 2000 SC 758] [LNIND 2000 SC 758].
3 State of Uttar Pradesh v Manisha Dwivedi AIR 2001 SC 3750 [LNIND 2001 SC 1901] [LNIND 2001 SC 1901] [LNIND 2001
SC 1901], State of Uttar Pradesh v Manisha Dwivedi (2001) 6 SCC 763 [LNIND 2001 SC 1901] [LNIND 2001 SC 1901] [LNIND
2001 SC 1901], State of Uttar Pradesh v Manisha Dwivedi (2001) 7 JT 456.
4 N Balakrishnan v M Krishnamurthy AIR 1998 SC 3222 [LNIND 1998 SC 851] [LNIND 1998 SC 851] [LNIND 1998 SC 851], N
Balakrishnan v M Krishnamurthy (1998) 7 SCC 123 [LNIND 1998 SC 851] [LNIND 1998 SC 851] [LNIND 1998 SC 851], N
Balakrishnan v M Krishnamurthy (1998) 6 JT 242.
5 Chief General Manager, Telecom v G Mohan Prasad 1999 6 SCC 67; State of Bihar v Kameshwar Prasad Singh AIR 2000
SC 2306 [LNIND 2000 SC 758] [LNIND 2000 SC 758] [LNIND 2000 SC 758], State of Bihar v Kameshwar Prasad Singh AIR
2000 SCW 2389, State of Bihar v Kameshwar Prasad Singh (2000) 5 JT 389 [LNIND 2000 SC 758] [LNIND 2000 SC 758]
[LNIND 2000 SC 758].

APPLICABILITY/[005.252] Relief
[005.252] Relief The Court, under its jurisdiction to grant special leave to appeal1 is empowered to mould
relief according to the circumstances of the specific case2. Instances of moulding relief cited are:
(1) The State appealed to the Supreme Court to grant special leave against the promotion of a
police officer, to the post of Deputy Superintendent of Police, under directions issued by the
high court to that effect. The Supreme Court ruled that the decision of the high court was not
sustainable. However, the Court did not permit the benefit conferred on the concerned officer
under the high court direction to be withdrawn3.
(2) The appellants petition seeking relief against his non-promotion was rejected by the
government as well as the high court. However, the Supreme Court, while deciding the special
leave petition to appeal and the appeal, held that refusal to promote him was not justified and
furthermore, issued a mandamus4 to the state government to promote the appellant with
retrospective effect5.
2 Collector of Customs and Central Excise v Oriental Timber Industries AIR 1985 SC 746 [LNIND 1985 SC 101] [LNIND 1985
SC 101] [LNIND 1985 SC 101], Collector of Customs and Central Excise v Oriental Timber Industries (1985) 3 SCC 85 [LNIND
1985 SC 101] [LNIND 1985 SC 101] [LNIND 1985 SC 101], Collector of Customs and Central Excise v Oriental Timber
Industries [1985] 3 SCR 475 [LNIND 1985 SC 101] [LNIND 1985 SC 101] [LNIND 1985 SC 101]; Dipak Kumar Biswas v
370 179
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Director of Public Instruction AIR 1987 SC 1422 [LNIND 1987 SC 267] [LNIND 1987 SC 267] [LNIND 1987 SC 267], Dipak
Kumar Biswas v Director of Public Instruction (1987) 2 SCC 252 [LNIND 1987 SC 267] [LNIND 1987 SC 267] [LNIND 1987 SC
267], Dipak Kumar Biswas v Director of Public Instruction [1987] 2 SCR 572 [LNIND 1987 SC 267] [LNIND 1987 SC 267]
[LNIND 1987 SC 267]; Municipal Board, Pratabgarh v Mahendra Singh Chawla AIR 1982 SC 1493, Municipal Board,
Pratabgarh v Mahendra Singh Chawla (1982) 3 SCC 331.
3 State of Bihar v Kameshwar Prasad Singh AIR 2000 SC 2306 [LNIND 2000 SC 758] [LNIND 2000 SC 758] [LNIND 2000 SC
758], State of Bihar v Kameshwar Prasad Singh AIR 2000 SCW 2389, State of Bihar v Kameshwar Prasad Singh (2000) 5 JT
4 As to mandamus see [80]CONSTITUTIONAL LAW: see [005.283] and following.
5 Badrinath v Government of Tamil Nadu AIR 2000 SC 3243 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000 SC
1324], Badrinath v Government of Tamil Nadu (2000) 8 SCC 395 [LNIND 2000 SC 1324] [LNIND 2000 SC 1324] [LNIND 2000
SC 1324], Badrinath v Government of Tamil Nadu (2000) 1 JT Supp 346.

APPLICABILITY/[005.253] Constitutional and civil cases
[005.253] Constitutional and civil cases The Supreme Court, under its power to grant special leave1, can
hear an appeal involving interpretation of substantial question of constitutional law, even if the high court
refuses to grant the necessary certificate of appeal2 as prescribed by the Consitution3. Similarly, the
Supreme Court may entertain appeal in a civil case where substantial question of law is involved but is
refused the necessary fitness certificate4.
The Supreme Court will intervene where the discretion is exercised arbitrarily or unreasonably, or is based
on a misunderstanding of the principles that govern its exercise, or if the order has been passed without
jurisdiction, or if there is a patently erroneous interpretation of law, by the high court, resulting in failure of
justice5. Furthermore, the Supreme Court does not appreciate evidence, or analyse the findings of fact
arrived at by the subordinate courts6. However, the Court may examine the evidence on the following
grounds7:
(1) where the lower court ignored or misread and misconstrued certain important pieces of
evidence, and the Supreme Court comes to the conclusion that, on the evidence taken as a
whole, no court could properly, as a mater of legitimate inference, arrive at the conclusion that
the lower court has arrived3; or
(2) where two lower courts of appeal are under a clear misapprehension as to the findings of fact
by the trial court; or
(3) where the findings arrived at by the lower courts are not based on proper consideration of the
law on the subject; or
(4) where appreciation of evidence by the subordinate courts on the face of it appears to be
erroneous causing miscarriage of justice7.
The Supreme Court will not entertain an entirely new plea, not raised earlier before the lower courts, but
being raised for the first time in appeal before it, especially when the new plea is founded on facts. For
instance, the Supreme Court did not permit the plea of mala fides being raised before it for the first time as it
being essentially a question of fact needed to be supported by relevant material8. However, the position is
different if it is a mixed question of law and fact9. For instance, the Supreme Court permitted the question of
constitutional validity of the relevant statute to be raised for the first time before it. Accordingly, the Court set
aside the high court's judgment and sent the matter back to it so that it may decide the question of
constitutional validity of the Act10. Hence, the Supreme Court may permit the plea to be raised11:
(i) where a point of fact plainly arises on the record, or a point of law is relevant and material and
can be decided on the basis of material on record without any further evidence being taken12;
or
371 180
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(ii) where the plea was urged before the trial court and was rejected, but was not repeated before
the high court; or
(iii) where it is a question of considerable importance likely to arise in similar suits; or
(iv) where the issue is the jurisdiction of the lower court13.
If it is a pure question of law going to the root of the case the plea may be allowed to be raised with the
permission of the Supreme Court14.
In cases of preventive detention15, the Supreme Court permits a new plea to be raised, if the plea was
important and fatal to detention, which could be determined on the material available to the Court16.
2 Ie the certificate for appeal to the Supreme Court issued by the high court under the Constitution of India art 134A.
3 Constitution of India art 132: see[80]CONSTUTUTIONAL LAW.
4 Ie under Constitution of India art 133.
5 Santosh Kumar v Bhai Mool Singh AIR 1958 SC 321 [LNIND 1958 SC 2] [LNIND 1958 SC 2] [LNIND 1958 SC 2], Santosh
Kumar v Bhai Mool Singh [1958] SCR 1211 [LNIND 1958 SC 2] [LNIND 1958 SC 2] [LNIND 1958 SC 2], Santosh Kumar v Bhai
Mool Singh (1958) SCJ 434 [LNIND 1958 SC 2] [LNIND 1958 SC 2] [LNIND 1958 SC 2]: Baldota Bros v Libra Mining Works
AIR 1961 SC 100; Syed Yakoob v KS Radhakrishnan AIR 1964 SC 477, Syed Yakoob v KS Radhakrishnan [1964] 5 SCR 64
[LNIND 1963 SC 228] [LNIND 1963 SC 228] [LNIND 1963 SC 228]; Ajit Singh v State of Punjab AIR 1967 SC 856 [LNIND
1966 SC 299] [LNIND 1966 SC 299] [LNIND 1966 SC 299], Ajit Singh v State of Punjab [1967] 2 SCR 143 [LNIND 1966 SC
299] [LNIND 1966 SC 299] [LNIND 1966 SC 299]. As to fitness certificate see note 2 above.
6 EG Barsay v State of Bombay AIR 1961 SC 1762 [LNIND 1961 SC 196] [LNIND 1961 SC 196] [LNIND 1961 SC 196], EG
Barsay v State of Bombay [1962] 2 SCR 195 [LNIND 1961 SC 196] [LNIND 1961 SC 196] [LNIND 1961 SC 196], EG Barsay v
State of Bombay (1962) 1 SCJ 231; Gondumogula Tatayya v Penumatcha Anande Vijaya Timma Jagapathiraju AIR 1967 SC
647 [LNIND 1962 SC 452] [LNIND 1962 SC 452] [LNIND 1962 SC 452], Gondumogula Tatayya v Penumatcha Anande Vijaya
Timma Jagapathiraju [1962] Supp 3 SCR 324; Kt N Rm Thenappa Chettiar v NS Kr Chettiar AIR 1968 SC 915 [LNIND 1968
SC 21] [LNIND 1968 SC 21] [LNIND 1968 SC 21], Kt N Rm Thenappa Chettiar v NS Kr Chettiar (1968) 2 SCJ 645 [LNIND 1968
SC 21] [LNIND 1968 SC 21] [LNIND 1968 SC 21], Kt N Rm Thenappa Chettiar v NS Kr Chettiar (1968) 2 SCA 55 [LNIND 1968
SC 21] [LNIND 1968 SC 21] [LNIND 1968 SC 21]. See also Digvijay Singh v Pratap Kumari AIR 1970 SC 137 [LNIND 1969 SC
207] [LNIND 1969 SC 207] [LNIND 1969 SC 207], Digvijay Singh v Pratap Kumari [1970] 1 SCR 559 [LNIND 1969 SC 207]
[LNIND 1969 SC 207] [LNIND 1969 SC 207], Digvijay Singh v Pratap Kumari (1970) 1 SCJ 261 [LNIND 1969 SC 207] [LNIND
1969 SC 207] [LNIND 1969 SC 207]; Parle Products Pvt Ltd v J P & Co Mysore AIR 1972 SC 1359 [LNIND 1972 SC 65]
[LNIND 1972 SC 65] [LNIND 1972 SC 65], Parle Products Pvt Ltd v J P & Co Mysore (1972) 1 SCC 618 [LNIND 1972 SC 65]
[LNIND 1972 SC 65] [LNIND 1972 SC 65], Parle Products Pvt Ltd v J P & Co Mysore [1972] 3 SCR 289 [LNIND 1972 SC 65]
[LNIND 1972 SC 65] [LNIND 1972 SC 65]; Banwari Lal v Trilok Chand AIR 1980 SC 419 [LNIND 1979 SC 420] [LNIND 1979
SC 420] [LNIND 1979 SC 420], Banwari Lal v Trilok Chand (1980) 1 SCC 349 [LNIND 1979 SC 420] [LNIND 1979 SC 420]
[LNIND 1979 SC 420], Banwari Lal v Trilok Chand [1980] 1 SCR 998 [LNIND 1979 SC 420] [LNIND 1979 SC 420] [LNIND 1979
SC 420]; Vasudha Srivastava v Kamla Chauhan AIR 1992 SC 1454, Vasudha Srivastava v Kamla Chauhan (1992) 1 SCC 645,
Vasudha Srivastava v Kamla Chauhan [1992] 1 SCR 356; Union of India v Rajeswari & Co AIR 1986 SC 1748 [LNIND 1986
SC 209] [LNIND 1986 SC 209] [LNIND 1986 SC 209], Union of India v Rajeswari & Co (1986) 3 SCC 426 [LNIND 1986 SC 209]
[LNIND 1986 SC 209] [LNIND 1986 SC 209], Union of India v Rajeswari & Co [1986] 3 SCR 174.
7 Earnest John White v Kathleen Olive White AIR 1958 SC 441 [LNIND 1958 SC 18] [LNIND 1958 SC 18] [LNIND 1958 SC
18], Earnest John White v Kathleen Olive White [1958] SCR 1410 [LNIND 1958 SC 18] [LNIND 1958 SC 18] [LNIND 1958 SC
18], Earnest John White v Kathleen Olive White (1958) SCJ 839 [LNIND 1958 SC 18] [LNIND 1958 SC 18] [LNIND 1958 SC 18]
(the Supreme Court will not ordinarily interfere with findings of fact given by the trial judge and the appeal court but if in giving
the findings the courts ignore certain important pieces of evidence and other pieces of evidence which are equally important are
shown as having been misread and misconstrued and the Court comes to the conclusion that on the evidence taken as a whole
no tribunal could properly as a legitimate inference arrive at the conclusion that it has, interference by the Court will be called
for); AP State Financial Corpn v Vajra Chemicals AIR 1997 SC 3059, AP State Financial Corpn v Vajra Chemicals (1997) 7
SCC 76, AP State Financial Corpn v Vajra Chemicals (1997) 6 JT 381; Heramba Brahma v State of Assam AIR 1982 SC 1595
[LNIND 1982 SC 157] [LNIND 1982 SC 157] [LNIND 1982 SC 157], Heramba Brahma v State of Assam (1982) 3 SCC 351
[LNIND 1982 SC 157] [LNIND 1982 SC 157] [LNIND 1982 SC 157], Heramba Brahma v State of Assam (1982) 2 Scale 992
[LNIND 1982 SC 157] [LNIND 1982 SC 157] [LNIND 1982 SC 157]; DV Shanmugham v State of Andhra Pradesh AIR 1997 SC
2583 [LNIND 1997 SC 720] [LNIND 1997 SC 720] [LNIND 1997 SC 720], DV Shanmugham v State of Andhra Pradesh (1997) 5
SCC 349 [LNIND 1997 SC 720] [LNIND 1997 SC 720] [LNIND 1997 SC 720], DV Shanmugham v State of Andhra Pradesh
(1997) 5 JT 4; Suresh Kumar Jain v Shanti Swarup Jain AIR 1997 SC 2291 [LNIND 1996 SC 1940] [LNIND 1996 SC 1940]
[LNIND 1996 SC 1940]at 2298, Suresh Kumar Jain v Shanti Swarup Jain (1997) 9 SCC 298 [LNIND 1996 SC 1940] [LNIND
1996 SC 1940] [LNIND 1996 SC 1940].
372 181
Page
8 Jindal Industries Ltd v State of Haryana AIR 1991 SC 1832, Jindal Industries Ltd v State of Haryana (1991) Supp 2 SCC 587.
See also Bhandara District Central Co-operative Bank Ltd v State of Maharashtra AIR 1993 SC 59, Bhandara District Central
Co-operative Bank Ltd v State of Maharashtra (1992) 2 Scale 617, Bhandara District Central Co-operative Bank Ltd v State of
Maharashtra (1993) 1 UJ 14; Municipal Comr, Chinchwad New Township Municipal Council v Century Enka Ltd AIR 1996 SC
187 [LNIND 1995 SC 1713] [LNIND 1995 SC 1713] [LNIND 1995 SC 1713], Municipal Comr, Chinchwad New Township
Municipal Council v Century Enka Ltd (1995) 6 SCC 152 [LNIND 1995 SC 1713] [LNIND 1995 SC 1713] [LNIND 1995 SC
1713]. As to fresh plea in appeals in criminal cases see [005.254].
9 R J Singh Ahluwalia v State of Delhi AIR 1971 SC 1552, R J Singh Ahluwalia v State of Delhi (1970) 3 SCC 451, R J Singh
Ahluwalia v State of Delhi (1971) SCC (Cri) 57; Chinta Lingam v Government of India AIR 1971 SC 474 [LNIND 1970 SC 464]
[LNIND 1970 SC 464] [LNIND 1970 SC 464], Chinta Lingam v Government of India (1970) 3 SCC 768 [LNIND 1970 SC 464]
[LNIND 1970 SC 464] [LNIND 1970 SC 464], Chinta Lingam v Government of India [1971] 2 SCR 871 [LNIND 1970 SC 464]
[LNIND 1970 SC 464] [LNIND 1970 SC 464]. Deputy Custodian General, Evacuee Property v Daulat Ram AIR 1973 SC 1381,
Deputy Custodian General, Evacuee Property v Daulat Ram (1973) 3 SCC 621; Sant Narain Mathur v Rama Krishna Mission
AIR 1974 SC 2241 [LNIND 1974 SC 484] [LNIND 1974 SC 484] [LNIND 1974 SC 484], Sant Narain Mathur v Rama Krishna
Mission (1974) 2 SCC 730 [LNIND 1974 SC 484] [LNIND 1974 SC 484] [LNIND 1974 SC 484], Sant Narain Mathur v Rama
Krishna Mission [1975] 2 SCR 188 [LNIND 1974 SC 484] [LNIND 1974 SC 484] [LNIND 1974 SC 484]; Surender Kumar
Aggarwal v Satya Varshneya AIR 1981 SC 1234, Surender Kumar Aggarwal v Satya Varshneya (1987) 3 SCC 132 [LNIND
1987 SC 377] [LNIND 1987 SC 377] [LNIND 1987 SC 377], Surender Kumar Aggarwal v Satya Varshneya [1987] 2 SCR 883
[LNIND 1987 SC 377] [LNIND 1987 SC 377] [LNIND 1987 SC 377]; K L Malhotra v Prakash Mehra AIR 1991 SC 99, K L
Malhotra v Prakash Mehra (1991) 4 SCC 512, K L Malhotra v Prakash Mehra (1991) 1 Scale 465; State of Madhya Pradesh v
Nandlal Jaiswal AIR 1987 SC 251 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400], State of Madhya
Pradesh v Nandlal Jaiswal (1986) 4 SCC 566 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400], State of
Madhya Pradesh v Nandlal Jaiswal [1987] 1 SCR 1 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400].
10 Noorulla Ghazanfarulla v Municipal Board of Aligarh AIR 1981 SC 2176, Noorulla Ghazanfarulla v Municipal Board of
Aligarh (1982) 1 SCC 484 (appellant amended his writ petition before the high court so as to include challenge to constitutional
validity of a provision-controversy between parties as to canvassing of constitutional validity before high court; held even though
new plea is not allowed to be raised in a special leave petition, as another writ could be filed by appellant to challenge
constitutional validity, special leave under art 136 was granted and the matter remitted back to the high court).
11 See note 12-13 below.
12 State of Rajasthan v Karamchand Thappar & Bros AIR 1965 SC 913, State of Rajasthan v Karamchand Thappar & Bros
(1965) 16 STC 412; State of Uttar Pradesh v Anupam Gupta AIR 1992 SC 932 [LNIND 1992 SC 159] [LNIND 1992 SC 159]
[LNIND 1992 SC 159], State of Uttar Pradesh v Anupam Gupta (1992) 2 SCC 206 [LNIND 1992 SC 164] [LNIND 1992 SC 164]
[LNIND 1992 SC 164], State of Uttar Pradesh v Anupam Gupta (1992) 4 JT 348; Bhanwar Lal v TK A Abdul Karim AIR 1992
SC 2166, Bhanwar Lal v TK A Abdul Karim (1993) Supp 1 SCC 626; National Insurance Co Ltd v Swaranlata Das AIR 1993
SC 1259.
13 Bharat Kala Bhandar (Pvt) Ltd v Municipal Committee, Dhamangaon AIR 1966 SC 249 [LNIND 1965 SC 105] [LNIND 1965
SC 105] [LNIND 1965 SC 105], Bharat Kala Bhandar (Pvt) Ltd v Municipal Committee, Dhamangaon [1965] 3 SCR 499 [LNIND
1965 SC 105] [LNIND 1965 SC 105] [LNIND 1965 SC 105], Bharat Kala Bhandar (Pvt) Ltd v Municipal Committee,
Dhamangaon (1965) 2 SCJ 741 [LNIND 1965 SC 105] [LNIND 1965 SC 105] [LNIND 1965 SC 105]; Chandrika Misir v
Bhaiyalal AIR 1973 SC 2391 [LNIND 1973 SC 216] [LNIND 1973 SC 216] [LNIND 1973 SC 216], Chandrika Misir v Bhaiyalal
(1973) 2 SCC 473, Chandrika Misir v Bhaiyalal [1974] 1 SCR 290 [LNIND 1973 SC 216] [LNIND 1973 SC 216] [LNIND 1973 SC
216]; PMA Metropolitan v Moran Mar Marthoma AIR 1995 SC 2001 [LNIND 1995 SC 680] [LNIND 1995 SC 680] [LNIND 1995
SC 680]; Vasantkumar Radhakisan Vora v Board of Trustees of the Port of Bombay AIR 1991 SC 14 [LNIND 1990 SC 440]
[LNIND 1990 SC 440] [LNIND 1990 SC 440], Vasantkumar Radhakisan Vora v Board of Trustees of the Port of Bombay (1991)
1 SCC 761 [LNIND 1990 SC 440] [LNIND 1990 SC 440] [LNIND 1990 SC 440], Vasantkumar Radhakisan Vora v Board of
Trustees of the Port of Bombay [1990] 3 SCR 825 [LNIND 1990 SC 440] [LNIND 1990 SC 440] [LNIND 1990 SC 440]; Union of
India v Baleshwar Singh 1994 Supp 2 SCC 587.
14 Vimal Chandra Grover v Bank of India AIR 2000 SC 2181, Vimal Chandra Grover v Bank of India (2000) 5 SCC 122, Vimal
Chandra Grover v Bank of India (2000) 5 JT 287.
15 As to preventive detention see generally [105] criminal law and procedure.
16 Harish Pahwa v State of Uttar Pradesh AIR 1981 SC 1126 [LNIND 1981 SC 173] [LNIND 1981 SC 173] [LNIND 1981 SC
173], Harish Pahwa v State of Uttar Pradesh (1981) 2 SCC 710 [LNIND 1981 SC 173] [LNIND 1981 SC 173] [LNIND 1981 SC
173], Harish Pahwa v State of Uttar Pradesh [1981] 3 SCR 276 [LNIND 1981 SC 173] [LNIND 1981 SC 173] [LNIND 1981 SC
173]; KPM Basheer v India AIR 1992 SC 1353 [LNIND 1992 SC 200] [LNIND 1992 SC 200] [LNIND 1992 SC 200], KPM
Basheer v India (1992) 2 SCC 295 [LNIND 1992 SC 200] [LNIND 1992 SC 200] [LNIND 1992 SC 200], KPM Basheer v India
(1992) 3 JT 610 [LNIND 1992 SC 200] [LNIND 1992 SC 200] [LNIND 1992 SC 200].

373 182
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APPLICABILITY/[005.254] Criminal cases
[005.254] Criminal cases The scope of the provision relating to appeals to the Supreme Court in criminal
matters is limited1. However, criminal appeals may be brought to the Supreme Court under its jurisdiction to
grant special leave2:
(1) when they are not covered by the provision relating to the appellate jurisdiction of the Supreme
Court in regard to criminal matter or when the matter is beyond the jurisdiction of the Act of
Parliament extending criminal appellate jurisdiction of the Supreme Court3; or
(2) when the high court refuses to grant a fitness certificate, or the certificate has not been granted
properly4.
The Supreme Court will grant leave to appeal in criminal matters only under exceptional and special
circumstances, where substantial and grave injustice has been done, and the case in question presents
features of sufficient gravity to warrant a review of the decision appealed against, or there has been a
departure from legal procedure such as vitiates the whole trial, or if the findings of fact were shocking to the
judicial conscience of the Court5.
Moreover, the Supreme Court does not act as an ordinary court of criminal appeal to which every high court
judgment in a criminal case can be brought up for scrutiny of its correctness. The Court does not allow facts
to be reopened, or act as a court to review evidence, but may relax whenever there has been a failure of
justice6.
The Court does not interfere with concurrent findings unless the findings are vitiated by errors of law, or the
conclusions reached by the courts below are so patently opposed to well-established principles as to amount
to miscarriage of justice, or where the interest of justice so requires7. For instance, the Supreme Court
interfered with concurrent findings of fact of a lower court on the ground that the findings suffer from the vice
of perversity8.
The Supreme Court does not permit a fresh plea to be raised before it in a special appeal. The Supreme
Court would deviate from the abovementioned technical rule with an underlying intendment to accommodate
beneficial provisions of a statute9. However, it may permit a jurisdictional point, or a point of pure law which
delves to the root of the case, to be raised before it10.
The Supreme Court does not interfere with the sentence passed by the lower courts unless there is an
illegality in it, or it is harsh or unjust in the facts and circumstances of the case, or it is unduly lenient, or it
involves any question of principle, or where the high court does not exercise its discretion judicially on the
question of sentence11.
The Supreme Court does not interfere with the high court's finding of acquittal unless that finding is clearly
unreasonable, or unsatisfactory, or perverse, or manifestly illegal, or grossly unjust, or is vitiated by some
glaring infirmity in the appraisal of evidence12, or the high court completely misdirects itself in reversing the
order of conviction by the trial court, or it results in gross miscarriage of justice13. The fact that another view
could also have been taken of the evidence on record would not justify interference with the judgment of
acquittal14.
Appellate power vested in the Supreme Court by the Constitution15 is a plenary power exercisable outside
the purview of ordinary law16 to meet the pressing demands of justice and is not to be confused with ordinary
appellate power exercised by appellate courts and appellate tribunals under specific statutes. The power is
vested in the Supreme Court but the right to invoke the Court's jurisdiction is not vested in any person. The
exercise of the power of the Supreme Court is not circumscribed by any limitation as to who may invoke it17.
Hence, when exercising appellate jurisdiction, the Supreme Court is empowered to pass any order that it
deems fit and necessary18.
374 183
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1 Ie under the Constitution of India art 134: see[80]CONSTITUTIONAL LAW.
3 .See note 1 above.
4 Ie under the Constitution of India art 134A:[80]CONSTITUTIONAL LAW.
5 Pritam Singh v State AIR 1950 SC 169 [LNIND 1950 SC 18] [LNIND 1950 SC 18] [LNIND 1950 SC 18], Pritam Singh v State
[1950 SCR 453; Sadhu Singh Harnam Singh v State of Pepsu AIR 1954 SC 271, Sadhu Singh Harnam Singh v State of Pepsu
(1954) Cr LJ 727; Haripada Dey v State of West Bengal AIR 1956 SC 757 [LNIND 1956 SC 56] [LNIND 1956 SC 56] [LNIND
1956 SC 56]; Ram Jag v State of Uttar Pradesh AIR 1974 SC 606 [LNIND 1973 SC 416] [LNIND 1973 SC 416] [LNIND 1973
SC 416], Ram Jag v State of Uttar Pradesh (1974) 4 SCC 201 [LNIND 1973 SC 416] [LNIND 1973 SC 416] [LNIND 1973 SC
416], Ram Jag v State of Uttar Pradesh [1974] 3 SCR 9 [LNIND 1973 SC 416] [LNIND 1973 SC 416] [LNIND 1973 SC 416];
State of Uttar Pradesh v Ballabh Das AIR 1985 SC 1384 [LNIND 1985 SC 240] [LNIND 1985 SC 240] [LNIND 1985 SC 240],
State of Uttar Pradesh v Ballabh Das (1985) 3 SCC 703 [LNIND 1985 SC 240] [LNIND 1985 SC 240] [LNIND 1985 SC 240],
State of Uttar Pradesh v Ballabh Das (1985) SCC (Cri) 452; State of Uttar Pradesh v Ram Swarup AIR 1988 SC 1028, State of
Uttar Pradesh v Ram Swarup (1988) Supp SCC 262, State of Uttar Pradesh v Ram Swarup (1988) 1 JT 436; State of Uttar
Pradesh v Pheru Singh AIR 1989 SC 1205, State of Uttar Pradesh v Pheru Singh (1989) Supp 1 SCC 288, State of Uttar
Pradesh v Pheru Singh (1989) 3 JT 87; State of Uttar Pradesh v Anil Singh AIR 1988 SC 1998 [LNIND 1988 SC 415] [LNIND
1988 SC 415] [LNIND 1988 SC 415], State of Uttar Pradesh v Anil Singh (1988) Supp SCC 686, State of Uttar Pradesh v Anil
Singh [1988] Supp 2 SCR 611.
6 Mohinder Singh v State of Punjab AIR 1965 SC 79, Mohinder Singh v State of Punjab (1965) 1 Cr LJ 112; Nihal Singh v
State of Punjab AIR 1965 SC 26 [LNIND 1963 SC 162] [LNIND 1963 SC 162] [LNIND 1963 SC 162], Nihal Singh v State of
Punjab [1964] 4 SCR 5 [LNIND 1963 SC 162] [LNIND 1963 SC 162] [LNIND 1963 SC 162], Nihal Singh v State of Punjab
(1965) 1 Cr LJ 105; Meena Balwant Hemke v State of Maharashtra [2000] 2 LRI 396, Meena Balwant Hemke v State of
Maharashtra AIR 2000 SC 3377 [LNIND 2000 SC 672] [LNIND 2000 SC 672] [LNIND 2000 SC 672], Meena Balwant Hemke v
State of Maharashtra (2000) 7 SCC 21; Suresh Chandra Bahri v State of Bihar AIR 1994 SC 2420, Suresh Chandra Bahri v
State of Bihar (1995) Supp 1 SCC 80, Suresh Chandra Bahri v State of Bihar (1994) 4 JT 309; State of Uttar Pradesh v Babul
Nath 1994 6 SCC 29; Arjun v State of Rajasthan AIR 1994 SC 2507 [LNIND 1994 SC 604] [LNIND 1994 SC 604] [LNIND 1994
SC 604], Arjun v State of Rajasthan (1994) Supp 3 SCC 189, Arjun v State of Rajasthan (1994) 5 JT 410 [LNIND 1994 SC 604]
[LNIND 1994 SC 604] [LNIND 1994 SC 604]; Dukhmochan Pandey v State of Bihar 1997 8 SCC 405 [LNIND 1997 SC 1255]
[LNIND 1997 SC 1255] [LNIND 1997 SC 1255]; Balak Ram v State of Uttar Pradesh AIR 1974 SC 2165 [LNIND 1974 SC 236]
[LNIND 1974 SC 236] [LNIND 1974 SC 236], Balak Ram v State of Uttar Pradesh (1975) 3 SCC 3 219, Balak Ram v State of
Uttar Pradesh [1975] 1 SCR 753 [LNIND 1974 SC 236] [LNIND 1974 SC 236] [LNIND 1974 SC 236]; Rahim Beg v State of
Uttar Pradesh AIR 1973 SC 343, Rahim Beg v State of Uttar Pradesh (1972) 3 SCC 759, Rahim Beg v State of Uttar Pradesh
(1972) SCC (Cri) 827; Gokul v State of Rajasthan AIR 1972 SC 209 [LNIND 1971 SC 576] [LNIND 1971 SC 576] [LNIND 1971
SC 576], Gokul v State of Rajasthan (1972) 4 SCC 812 [LNIND 1971 SC 576] [LNIND 1971 SC 576] [LNIND 1971 SC 576],
Gokul v State of Rajasthan (1972) UJ 226; Krishan Lal v State of Haryana AIR 1980 SC 1252 [LNIND 1980 SC 156] [LNIND
1980 SC 156] [LNIND 1980 SC 156], Krishan Lal v State of Haryana (1980) 3 SCC 159 [LNIND 1980 SC 156] [LNIND 1980 SC
156] [LNIND 1980 SC 156], Krishan Lal v State of Haryana [1980] 3 SCR 305 [LNIND 1980 SC 156] [LNIND 1980 SC 156]
[LNIND 1980 SC 156]; Sheo Nandan Paswan v State of Bihar AIR 1987 SC 877, Sheo Nandan Paswan v State of Bihar (1987)
1 SCC 288, Sheo Nandan Paswan v State of Bihar [1987] 1 SCR 702 (where an appeal by special leave against an order giving
consent to withdrawal of prosecution comes to the Supreme Court under article 136, the Supreme Court will not assess
evidence to find out whether there is a case for acquittal or conviction nor order a retrial).
7 Budhsen v State of Uttar Pradesh AIR 1970 SC 1321 [LNIND 1970 SC 263] [LNIND 1970 SC 263] [LNIND 1970 SC 263],
Budhsen v State of Uttar Pradesh (1970) Cr LJ 1149; State of Uttar Pradesh v Sheo Ram AIR 1974 SC 2267, State of Uttar
Pradesh v Sheo Ram (1975) 3 SCC 136, State of Uttar Pradesh v Sheo Ram (1974) SCC (Cri) 760; Duli Chand v Delhi
Administration AIR 1975 SC 1960, Duli Chand v Delhi Administration (1975) 4 SCC 649, Duli Chand v Delhi Administration
(1975) UJ 648; Rafiq v State of Uttar Pradesh AIR 1981 SC 559 [LNIND 2011 ALL 17926] [LNIND 2011 ALL 17926] [LNIND
2011 ALL 17926], Rafiq v State of Uttar Pradesh (1980) 4 SCC 262 [LNIND 1980 SC 331] [LNIND 1980 SC 331] [LNIND 1980
SC 331], Rafiq v State of Uttar Pradesh [1981] 1 SCR 502; Indira Kaur v Sheo Lal Kapoor AIR 1988 SC 1074, Indira Kaur v
Sheo Lal Kapoor (1988) 2 SCC 488, Indira Kaur v Sheo Lal Kapoor (1988) 1 JT 652(2); Balak Ram v State of Uttar Pradesh
AIR 1974 SC 2165 [LNIND 1974 SC 236] [LNIND 1974 SC 236] [LNIND 1974 SC 236], Balak Ram v State of Uttar Pradesh
(1975) 3 SCC 3 219, Balak Ram v State of Uttar Pradesh [1975] 1 SCR 753 [LNIND 1974 SC 236] [LNIND 1974 SC 236]
[LNIND 1974 SC 236]; Lala Ram v State of Uttar Pradesh AIR 1990 SC 1185 [LNIND 1990 SC 64] [LNIND 1990 SC 64]
[LNIND 1990 SC 64], Lala Ram v State of Uttar Pradesh (1990) 2 SCC 813, Lala Ram v State of Uttar Pradesh (1990) 1 JT
169; Nain Singh v Uttar Pradesh 1991 2 SCC 432 [LNIND 1991 SC 119] [LNIND 1991 SC 119] [LNIND 1991 SC 119]; Ranbir
Yadav v State of Bihar AIR 1995 SC 1219 [LNIND 1995 SC 389] [LNIND 1995 SC 389] [LNIND 1995 SC 389], Ranbir Yadav v
State of Bihar (1995) 4 SCC 392 [LNIND 1995 SC 389] [LNIND 1995 SC 389] [LNIND 1995 SC 389], Ranbir Yadav v State of
Bihar (1995) 3 JT 228; Lal Mandi v State of West Bengal AIR 1995 SC 2265 [LNIND 1995 SC 484] [LNIND 1995 SC 484]
[LNIND 1995 SC 484], Lal Mandi v State of West Bengal (1995) 3 SCC 603 [LNIND 1995 SC 484] [LNIND 1995 SC 484]
[LNIND 1995 SC 484], Lal Mandi v State of West Bengal (1995) SCC (Cri) 560; Ram Sanjiwan Singh v State of Bihar 1996 8
SCC 552 [LNIND 1996 SC 874] [LNIND 1996 SC 874] [LNIND 1996 SC 874]; S Gopal Reddy v State of Andhra Pradesh AIR
1996 SC 2184 [LNIND 1996 SC 1040] [LNIND 1996 SC 1040] [LNIND 1996 SC 1040], S Gopal Reddy v State of Andhra
Pradesh (1996) 4 SCC 596 [LNIND 1996 SC 1040] [LNIND 1996 SC 1040] [LNIND 1996 SC 1040], S Gopal Reddy v State of
Andhra Pradesh (1996) 6 JT 268; Nayudu Srihari v State of Andhra Pradesh 1996 10 SCC 393 [LNIND 1996 SC 1325] [LNIND
1996 SC 1325] [LNIND 1996 SC 1325], Nayudu Srihari v State of Andhra Pradesh (1996) Cr LJ 4441.
375 184
Page
8 Mathura Prashad v State of Madhya Pradesh AIR 1992 SC 49 [LNIND 1991 SC 514] [LNIND 1991 SC 514] [LNIND 1991 SC
514], Mathura Prashad v State of Madhya Pradesh (1992) Supp 1 SCC 406, Mathura Prashad v State of Madhya Pradesh
[1991] Supp 1 SCR. See also State of Uttar Pradesh v Dan Singh AIR 1997 SC 1654 [LNIND 1997 SC 162] [LNIND 1997 SC
162] [LNIND 1997 SC 162], State of Uttar Pradesh v Dan Singh (1997) 3 SCC 747 [LNIND 1997 SC 162] [LNIND 1997 SC 162]
[LNIND 1997 SC 162], State of Uttar Pradesh v Dan Singh (1997) 2 JT 149; Ramanbhai Naranbhai Patel v State of Gujarat
2000 1 SCC 358.
9 Gopinath Ghosh v State of West Bengal AIR 1984 SC 237 [LNIND 1983 SC 331] [LNIND 1983 SC 331] [LNIND 1983 SC
331], Gopinath Ghosh v State of West Bengal (1984) Supp 228, Gopinath Ghosh v State of West Bengal [1984] 1 SCR 803
[LNIND 1983 SC 331] [LNIND 1983 SC 331] [LNIND 1983 SC 331] (plea of being a minor raised for the first time before the
Supreme Court; the Court entertained the plea for the purpose of extending benevolent provisions of the Act to the minor).
10 Sahib Singh Mehra v State of Uttar Pradesh AIR 1965 SC 1451 [LNIND 1965 SC 15] [LNIND 1965 SC 15] [LNIND 1965 SC
15], Sahib Singh Mehra v State of Uttar Pradesh (1965) 1 SCWR 571 [LNIND 1965 SC 15] [LNIND 1965 SC 15] [LNIND 1965
SC 15], Sahib Singh Mehra v State of Uttar Pradesh (1965) 2 Cr LJ 434; Assistant Collector of Central Excise, Calcutta v
National Tobacco Co of India AIR 1972 SC 2563 [LNIND 1972 SC 357] [LNIND 1972 SC 357] [LNIND 1972 SC 357], Assistant
Collector of Central Excise, Calcutta v National Tobacco Co of India (1972) 2 SCC 560 [LNIND 1972 SC 357] [LNIND 1972 SC
357] [LNIND 1972 SC 357], Assistant Collector of Central Excise, Calcutta v National Tobacco Co of India [1973] 1 SCR 822
[LNIND 1972 SC 357] [LNIND 1972 SC 357] [LNIND 1972 SC 357]; BC Goswami v Delhi Administration AIR 1973 SC 1457
[LNIND 1973 SC 194] [LNIND 1973 SC 194] [LNIND 1973 SC 194]; R J Singh Ahluwalia v State of Delhi AIR 1971 SC 1552, R
J Singh Ahluwalia v State of Delhi (1970) 3 SCC 451, R J Singh Ahluwalia v State of Delhi (1971) SCC (Cri) 57 (the ground of
challenge was permitted since it went to the root of the case, being a jurisdictional point it is just and proper to allow it to be
raised).
11 State of Maharashtra v Mayer Hans George AIR 1965 SC 722 [LNIND 1964 SC 415] [LNIND 1964 SC 415] [LNIND 1964
1964 SC 415], State of Maharashtra v Mayer Hans George (1965) 1 Cr LJ 641; Nathusingh v State of Madhya Pradesh AIR
1973 SC 2783 [LNIND 1973 SC 310] [LNIND 1973 SC 310] [LNIND 1973 SC 310], Nathusingh v State of Madhya Pradesh
(1974) 3 SCC 584 [LNIND 1973 SC 310] [LNIND 1973 SC 310] [LNIND 1973 SC 310], Nathusingh v State of Madhya Pradesh
(1974) SCC (Cri) 62; Kodavandi Moideen v State of Kerala AIR 1973 SC 467 [LNIND 1972 SC 586] [LNIND 1972 SC 586]
[LNIND 1972 SC 586], Kodavandi Moideen v State of Kerala (1973) 3 SCC 469 [LNIND 1972 SC 586] [LNIND 1972 SC 586]
[LNIND 1972 SC 586], Kodavandi Moideen v State of Kerala (1973) SCC (Cri) 369.
12 Deputy Chief Controller of Imports and Exports, New Delhi v K T Kosalram AIR 1971 SC 1283 [LNIND 1970 SC 399]
[LNIND 1970 SC 399] [LNIND 1970 SC 399], Deputy Chief Controller of Imports and Exports, New Delhi v K T Kosalram (1970)
3 SCC 82 [LNIND 1970 SC 399] [LNIND 1970 SC 399] [LNIND 1970 SC 399], Deputy Chief Controller of Imports and Exports,
New Delhi v K T Kosalram [1971] 2 SCR 507 [LNIND 1970 SC 399] [LNIND 1970 SC 399] [LNIND 1970 SC 399]; State of Uttar
Pradesh v Sahai AIR 1981 SC 1442, State of Uttar Pradesh v Sahai (1982) 1 SCC 352, State of Uttar Pradesh v Sahai (1981) 1
Scale 939; State of Uttar Pradesh v Hari Ram AIR 1983 SC 1081 [LNIND 1983 SC 240] [LNIND 1983 SC 240] [LNIND 1983
SC 240], State of Uttar Pradesh v Hari Ram (1983) 4 SCC 453 [LNIND 1983 SC 240] [LNIND 1983 SC 240] [LNIND 1983 SC
240], State of Uttar Pradesh v Hari Ram [1983] 3 SCR 885 [LNIND 1983 SC 240] [LNIND 1983 SC 240] [LNIND 1983 SC 240];
Rajesh Kumar v Dharamvir AIR 1997 SC 3769 [LNIND 1997 SC 445] [LNIND 1997 SC 445] [LNIND 1997 SC 445], Rajesh
Kumar v Dharamvir (1997) 4 SCC 496 [LNIND 1997 SC 445] [LNIND 1997 SC 445] [LNIND 1997 SC 445], Rajesh Kumar v
Dharamvir (1997) 3 JT 525; Satbir v Surat Singh AIR 1997 SC 1160, Satbir v Surat Singh (1997) 4 SCC 192, Satbir v Surat
Singh (1997) 2 JT 650; State of Uttar Pradesh v Abdul AIR 1997 SC 2512 [LNIND 1997 SC 790] [LNIND 1997 SC 790] [LNIND
1997 SC 790], State of Uttar Pradesh v Abdul (1997) 10 SCC 135 [LNIND 1997 SC 790] [LNIND 1997 SC 790] [LNIND 1997
SC 790], State of Uttar Pradesh v Abdul (1997) 5 JT 265; Gauri Shanker Sharma v State of Uttar Pradesh AIR 1990 SC 709
[LNIND 1990 SC 8] [LNIND 1990 SC 8] [LNIND 1990 SC 8], Gauri Shanker Sharma v State of Uttar Pradesh (1990) Supp SCC
656 [LNIND 1990 SC 8], Gauri Shanker Sharma v State of Uttar Pradesh [1990] 1 SCR 29 [LNIND 1990 SC 8] [LNIND 1990 SC
8] [LNIND 1990 SC 8]; see Arunachalam v PSR Setharathnam AIR 1979 SC 1284 [LNIND 1979 SC 180] [LNIND 1979 SC
180] [LNIND 1979 SC 180]at 1287, Arunachalam v PSR Setharathnam (1979) 2 SCC 297 [LNIND 1979 SC 180] [LNIND 1979
SC 180] [LNIND 1979 SC 180], Arunachalam v PSR Setharathnam [1979] 3 SCR 482 [LNIND 1979 SC 180] [LNIND 1979 SC
180] [LNIND 1979 SC 180].
13 State of Uttar Pradesh v Ashok Kumar Srivastava AIR 1992 SC 840 [LNIND 1992 SC 22] [LNIND 1992 SC 22] [LNIND 1992
SC 22], State of Uttar Pradesh v Ashok Kumar Srivastava (1992) 2 SCC 86 [LNIND 1992 SC 22] [LNIND 1992 SC 22] [LNIND
1992 SC 22], State of Uttar Pradesh v Ashok Kumar Srivastava (1992) 1 JT 340 [LNIND 1992 SC 22] [LNIND 1992 SC 22]
[LNIND 1992 SC 22]; State of Rajasthan v Shri Narayan AIR 1992 SC 2004 [LNIND 1992 SC 462] [LNIND 1992 SC 462]
[LNIND 1992 SC 462], State of Rajasthan v Shri Narayan (1992) 3 SCC 615 [LNIND 1992 SC 462] [LNIND 1992 SC 462]
[LNIND 1992 SC 462], State of Rajasthan v Shri Narayan (1992) 4 JT 282; State of Uttar Pradesh v Anil Singh AIR 1988 SC
1998 [LNIND 1988 SC 415] [LNIND 1988 SC 415] [LNIND 1988 SC 415], State of Uttar Pradesh v Anil Singh (1988) Supp SCC
686, State of Uttar Pradesh v Anil Singh [1988] Supp 2 SCR 611; Appabhai v State of Gujarat AIR 1988 SC 696, Appabhai v
State of Gujarat (1988) Supp SCC 241, Appabhai v State of Gujarat (1988) 1 JT 249.
14 State of Uttar Pradesh v Harihar Bux Singh AIR 1974 SC 1890, State of Uttar Pradesh v Harihar Bux Singh (1975) 3 SCC
167, State of Uttar Pradesh v Harihar Bux Singh (1974) SCC (Cri) 799; State of Uttar Pradesh v Jashoda Nandan Gupta AIR
1974 SC 753, State of Uttar Pradesh v Jashoda Nandan Gupta (1974) 4 SCC 471, State of Uttar Pradesh v Jashoda Nandan
Gupta (1974) SCC (Cri) 507; Mohanlal Hargovind Dass v Ram Narain AIR 1980 SC 1743, Mohanlal Hargovind Dass v Ram
Narain (1979) 3 SCC 279, Mohanlal Hargovind Dass v Ram Narain (1979) UJ 796; State of Andhra Pradesh v P Anjaneyulu
AIR 1982 SC 1598 [LNIND 1982 SC 156] [LNIND 1982 SC 156] [LNIND 1982 SC 156], State of Andhra Pradesh v P
376 185
Page
Anjaneyulu (1984) 2 SCC 445; Mool Chand v Jagdish Singh Bedi 1993 Supp 2 SCC 714, Mool Chand v Jagdish Singh Bedi
[1992] 2 SCR 425 [LNIND 1992 SC 288] [LNIND 1992 SC 288] [LNIND 1992 SC 288]; State of Uttar Pradesh v Dan Singh AIR
1997 SC 1654 [LNIND 1997 SC 162] [LNIND 1997 SC 162] [LNIND 1997 SC 162], State of Uttar Pradesh v Dan Singh (1997) 3
SCC 747 [LNIND 1997 SC 162] [LNIND 1997 SC 162] [LNIND 1997 SC 162], State of Uttar Pradesh v Dan Singh (1997) 2 JT
149; State of Maharashtra v Ashok Chotelal Shukla AIR 1997 SC 3111 [LNIND 1997 SC 1037] [LNIND 1997 SC 1037] [LNIND
1997 SC 1037], State of Maharashtra v Ashok Chotelal Shukla (1997) 7 JT 141, State of Maharashtra v Ashok Chotelal Shukla
(1997) SCC (Cri) 1186.
15 Ie under the Constiution of Indiaart 136.
16 See Comr of Police, Delhi v Registrar, Delhi High Court, New Delhi AIR 1997 SC 95 [LNIND 1996 SC 1687] [LNIND 1996
SC 1687] [LNIND 1996 SC 1687], Comr of Police, Delhi v Registrar, Delhi High Court, New Delhi (1996) 6 SCC 323 [LNIND
1996 SC 1687] [LNIND 1996 SC 1687] [LNIND 1996 SC 1687], Comr of Police, Delhi v Registrar, Delhi High Court, New Delhi
(1996) 9 JT 138.
17 Arunachalam v PSR Setharathnam AIR 1979 SC 1284 [LNIND 1979 SC 180] [LNIND 1979 SC 180] [LNIND 1979 SC 180],
Arunachalam v PSR Setharathnam (1979) 2 SCC 297 [LNIND 1979 SC 180] [LNIND 1979 SC 180] [LNIND 1979 SC 180],
Arunachalam v PSR Setharathnam [1979] 3 SCR 482 [LNIND 1979 SC 180] [LNIND 1979 SC 180] [LNIND 1979 SC 180]; PSR
Sadhanantham v Arunachalam AIR 1980 SC 856 [LNIND 1980 SC 44] [LNIND 1980 SC 44] [LNIND 1980 SC 44], PSR
Sadhanantham v Arunachalam (1980) 3 SCC 141 [LNIND 1980 SC 44] [LNIND 1980 SC 44] [LNIND 1980 SC 44], PSR
Sadhanantham v Arunachalam [1980] 2 SCR 873 [LNIND 1980 SC 44] [LNIND 1980 SC 44] [LNIND 1980 SC 44].
18 Delhi Judicial Service Association, Tis Hazari Court, Delhi v State of Gujarat AIR 1991 SC 2176 [LNIND 1991 SC 446]
Hazari Court, Delhi v State of Gujarat [1991] 3 SCR 936 [LNIND 1991 SC 446] [LNIND 1991 SC 446] [LNIND 1991 SC 446];
Chandrakant Patil v State through CBI AIR 1998 SC 1165 [LNIND 1998 SC 1159] [LNIND 1998 SC 1159] [LNIND 1998 SC
1159], Chandrakant Patil v State through CBI (1998) 3 SCC 38 [LNIND 1998 SC 1159] [LNIND 1998 SC 1159] [LNIND 1998 SC
1159], Chandrakant Patil v State through CBI (1998) 1 JT 352.

ADMINISTRATIVE LAW/20. WRIT JURISDICTION OF SUPREME COURT/(1) GENERALLY/[005.255]
Introduction
[005.255] Introduction The Supreme Court protects fundamental rights through its writ jurisdiction1. The
purpose for which right to constitutional remedies may be invoked is to enforce fundamental rights. Violation
of a fundamental right is the sine qua non for its exercise2. Through its numerous decisions concerning
fundamental rights, the Supreme Court has given new dimensions, meaning and purpose to many
fundamental rights3.
Fundamental rights are enforceable and any law inconsistent with a fundamental right is void4. The Supreme
Court is constitutionally obliged to declare a law as void if it is inconsistent with a fundamental right. It has
figuratively characterised this role of the judiciary as that of a sentinel on the qui vive5. The high courts also
have a parallel power6 to enforce the fundamental rights7.
The right to move the Supreme Court by appropriate proceedings for the enforcement of the fundamental
rights, is guaranteed8. For this purpose, the Supreme Court has the power to issue directions or orders or
writs, including writs in the nature of habeas corpus9, mandamus10, prohibition11, quo warranto12 and
certiorari13, whichever may be appropriate, for the enforcement of any of the fundamental rights1 .
The powers of the Supreme Court to enforce fundamental rights through its writ jurisdiction are plenary and
are not fettered by any legal constraints. If in the exercise of these powers, the Court commits a mistake, it
has plenary power to correct the same15.
In order to enforce fundamental rights, the Supreme Court is not bound to follow the ordinary adversary
procedure and may adopt such procedure, as may be effective16. The only limitation for invoking the writ
jurisdiction of the apex court is that the proceedings must be appropriate for the enforcement of a
fundamental right. The Constitution makers deliberately did not lay down any particular form of proceedings
for enforcement of fundamental rights, nor did they stipulate that such proceedings must conform to any rigid
377 186
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pattern or straight jacket formula17.
Accordingly, the Court has accepted even a letter addressed to itself as an appropriate proceeding and has
taken cognisance of the matter raised therein. The letter need not be in any particular form18.
1 Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India Halsbury's Laws of India AIR 1981 SC 344, Fertilizer
Corporation, Kamgar Union, (Regd) Sindri v Union of India Halsbury's Laws of India (1981) 1 SCC 568 [LNIND 1980 SC 455]
[LNIND 1980 SC 455] [LNIND 1980 SC 455], Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India Halsbury's
Laws of India [1981] 2 SCR 52.
2 Federation of Bar Association in Karnataka v Union of India [2000] 3 LRI 419, Federation of Bar Association in Karnataka v
Union of India AIR 2000 SC 2544 [LNIND 2000 SC 984] [LNIND 2000 SC 984] [LNIND 2000 SC 984]. See generally
3 Prem Chand Garg v Excise Comr, Uttar Pradesh AIR 1963 SC 996 [LNIND 1962 SC 356] [LNIND 1962 SC 356] [LNIND
1962 SC 356], Prem Chand Garg v Excise Comr, Uttar Pradesh [1963] Supp 1 SCR 885, Prem Chand Garg v Excise Comr,
Uttar Pradesh (1963) 2 SCA 125.
5 State of Madras v VG Row AIR 1952 SC 196 [LNIND 1952 SC 23] [LNIND 1952 SC 23] [LNIND 1952 SC 23], State of
Madras v VG Row [1952] SCR 597 [LNIND 1952 SC 23] [LNIND 1952 SC 23] [LNIND 1952 SC 23], State of Madras v VG Row
7 As to powers of high court see [005.235].
15 Common Cause, a Registered Society v Union of Indian AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND 1999 SC 637]
[LNIND 1999 SC 637], Common Cause, a Registered Society v Union of Indian (1999) 6 SCC 667 [LNIND 1999 SC 637]
[LNIND 1999 SC 637] [LNIND 1999 SC 637], Common Cause, a Registered Society v Union of Indian (1999) 5 JT 237; S
Nagaraj v State of Karnataka 1993 Supp (4) SCC 595 [LNIND 1993 SC 1065] [LNIND 1993 SC 1065] [LNIND 1993 SC 1065], S
Nagaraj v State of Karnataka (1994) 1 LLJ 851 [LNIND 1993 SC 1065] [LNIND 1993 SC 1065] [LNIND 1993 SC 1065]; Khatri v
State of Bihar AIR 1981 SC 1068 [LNIND 1981 SC 146] [LNIND 1981 SC 146] [LNIND 1981 SC 146], Khatri v State of Bihar
(1981) 2 SCC 493 [LNIND 1981 SC 146] [LNIND 1981 SC 146] [LNIND 1981 SC 146], Khatri v State of Bihar (1981) 2 SCJ
12(several petitioners filed writ petitions under the Constitution of India art 32 for enforcement of their fundamental right under
art 21, on the allegation that they were blinded by the police while they were in its custody; the question arose whether the
Court could order production of certain reports submitted by the Criminal Investigation Department (CID) to the state
government and some correspondence between the government and certain officials; the government claimed that this material
was protected by the Criminal Procedure Code 1973 ss 162 and 172; rejecting the contention, the Court said that the
proceedings under art 32 are neither an inquiry nor a trial for an offence; that the Supreme Court is not a criminal court and also
the petitioners are not accused persons; hence, the Criminal Procedure Code 1973 is not applicable toart 32).
16 Bandhua Mukti Morcha v Union of India AIR 1984 SC 802 [LNIND 1983 SC 564] [LNIND 1983 SC 564] [LNIND 1983 SC
564], Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161 [LNIND 1983 SC 564] [LNIND 1983 SC 564] [LNIND 1983 SC
564], Bandhua Mukti Morcha v Union of India [1984] 2 SCR 67 [LNIND 1983 SC 564] [LNIND 1983 SC 564] [LNIND 1983 SC
564](when a writ petition was moved on behalf of some workmen that they were being held in bondage, the Court appointed
two persons as commissioners to make report on the petitioner's condition; it was argued that their report had no evidentiary
value since what was stated therein was based only on ex parte evidence which had not been tested by cross examination; the
Court held the argument not well founded and rejected it, as it was based upon a total misconception of the true nature of a
proceeding under the Constitution of India art 32).
564]at 814, Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161 [LNIND 1983 SC 564] [LNIND 1983 SC 564] [LNIND
1983 SC 564], Bandhua Mukti Morcha v Union of India [1984] 2 SCR 67 [LNIND 1983 SC 564] [LNIND 1983 SC 564] [LNIND
1983 SC 564] (the poor cannot produce relevant material before the Court in support of their case. Even when a case is brought
378 187
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on their behalf by a citizen acting pro bono publico, it would be almost impossible for him to gather the relevant material and
place it before the Court; if the Court adopts a passive attitude and declines to intervene in the absence of relevant materials,
the fundamental rights would remain merely a teasing illusion so far as the poor and disadvantaged sections of the community
are concerned).
564]; Pratul Kumar Sinha v State of Orissa AIR 1989 SC 1783, Pratul Kumar Sinha v State of Orissa (1989) Supp 2 SCC 426,
Pratul Kumar Sinha v State of Orissa (1989) 1 Scale 1277; MC Mehta v Union of India AIR 1987 SC 1086 [LNIND 1986 SC
539] [LNIND 1986 SC 539] [LNIND 1986 SC 539],1090, MC Mehta v Union of India (1987) 1 SCC 395 [LNIND 1986 SC 539]
[LNIND 1986 SC 539] [LNIND 1986 SC 539], MC Mehta v Union of India (1987) JT 1.

ADMINISTRATIVE LAW/20. WRIT JURISDICTION OF SUPREME COURT/(1) GENERALLY/[005.256]
Scope of writ jurisdiction
[005.256] Scope of writ jurisdiction The right to access the apex court for the enforcement of fundamental
rights is itself a fundamental right1. Underlining the significance of the right, the Supreme Court has
characterised it as an important and integral part of the basic structure of the Constitution2. The Supreme
Court has thus been constituted into the protector and guarantor of the fundamental rights3. The Court
cannot refuse to entertain applications seeking protection against infringement of such rights on a consistent
basis4.
While entertaining writ petitions, the Supreme Court enjoys a broad discretion and it would not throw out an
application simply on the ground that the proper writ or direction has not been prayed for5. The Court's power
is not confined to issuing writs only and it can make any order, even a declaratory order or give any direction,
as it may deem necessary to give proper relief to the petitioner6. However, the writ jurisdiction of the apex
court cannot be invoked, unless there has been an infringement of a fundamental right7.
While the writ jurisdiction of high courts8 is expansive, the writ jurisdiction of the Supreme Court is restricted
as it can be invoked only for the enforcement of fundamental rights and not for any other purpose9. Thus, if
an administrative action does not affect a fundamental right, it can be challenged only in the high court10 and
not in the Supreme Court11, even if an administrative action is illegal, unless the petitioner's fundamental
right is also thereby infringed12.
However, in cases where questions of great constitutional significance are raised, there being no forum
except the Supreme Court where such questions could be authoritatively decided, the Supreme Court may
consider them. For instance, in cases of misuse of the ordinance making power by a state13, appointment of
judges of high courts and the Supreme Court14 and in issues related to the procedure to remove a Supreme
Court judge, the Court may take cognisance of the matter even if no fundamental right is involved15.
In matters of enforcement of fundamental rights, high courts and the Supreme Court have concurrent
jurisdiction and thus, a petitioner may come straight to the Supreme Court without going first to the high
court16. This is because the right to constitutional remedies is itself a guaranteed remedy for the enforcement
of the fundamental rights and makes the Supreme Court as the guarantor and protector of fundamental
rights17.
1 Bodhisattwa Gautam v Subhra Chakraborty AIR 1996 SC 922 [LNIND 1995 SC 1314] [LNIND 1995 SC 1314] [LNIND 1995
SC 1314],926, Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCJ 338, Bodhisattwa Gautam v Subhra Chakraborty
(1996) 2 BLJR 1533 [LNIND 1995 SC 1314] [LNIND 1995 SC 1314] [LNIND 1995 SC 1314]; Common Cause, a Registered
Society v Union of Indian AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC 637], Common
Cause, a Registered Society v Union of Indian (1999) 6 SCC 667 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC
637], Common Cause, a Registered Society v Union of Indian (1999) 5 JT 237.
379 188
Page
2 Kihoto Hollohon v Zachilhu AIR 1993 SC 412 [LNIND 1992 SC 175] [LNIND 1992 SC 175] [LNIND 1992 SC 175], Kihoto
Hollohon v Zachilhu (1992) 2 SCC 651, Kihoto Hollohon v Zachilhu (1992) 1 SPJ 565.
[LNIND 1961 SC 133] [LNIND 1961 SC 133] (the fundamental rights are intended not only to protect individual's rights but they
are based on high public policy; liberty of the individual and the protection of the fundamental rights are the very essence of the
democratic way of life adopted by the Constitution and it is the privilege and the duty of this Court to uphold those rights; this
Court would naturally refuse to circumscribe them or to curtail them except as provided by the Constitution itself).
4 Romesh Thappar v State of Madras AIR 1950 SC 124 [LNIND 1950 SC 27] [LNIND 1950 SC 27] [LNIND 1950 SC 27],
Romesh Thappar v State of Madras (1950) SCJ 418, Romesh Thappar v State of Madras (1950) Mad WN 435.
5 Chiranjit Lal Chowdhury v Union of India AIR 1951 SC 41 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55],
Chiranjit Lal Chowdhury v Union of India [1950] SCR 869 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55],
Chiranjit Lal Chowdhury v Union of India (1951) SCJ 29 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55].
6 Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras AIR 1959 SC 725 [LNIND 1959 SC 27] [LNIND 1959
SC 27] [LNIND 1959 SC 27], Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959) SCJ 858,
Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959) 2 SCA 248.
7 Andhra Industrial Works v Chief Controller of Imports AIR 1974 SC 1539 [LNIND 1974 SC 169] [LNIND 1974 SC 169]
[LNIND 1974 SC 169], Andhra Industrial Works v Chief Controller of Imports (1974) 2 SCC 348 [LNIND 1974 SC 169] [LNIND
1974 SC 169] [LNIND 1974 SC 169]; Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India AIR 1981 SC 344,
Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India (1981) 1 SCC 568 [LNIND 1980 SC 455] [LNIND 1980 SC
455] [LNIND 1980 SC 455], Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India [1981] 2 SCR 52
8 As to writ jurisdiction of the high courts see [005.222].
10 Ie under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
11 Ie not under the Constitution of India art 32 (see generally[80]CONSTITUTIONAL LAW).
12 As to invalidity of administrative action see [005.269].
13 DC Wadhwa v State of Bihar AIR 1987 SC 579 [LNIND 1986 SC 546] [LNIND 1986 SC 546] [LNIND 1986 SC 546], DC
Wadhwa v State of Bihar (1987) 1 SCC 378 [LNIND 1986 SC 546] [LNIND 1986 SC 546] [LNIND 1986 SC 546], DC Wadhwa v
State of Bihar (1987) JT 70.
14 Supreme Court Advocates-on-Record Association v Union of India AIR 1994 SC 268, Supreme Court Advocates-on-Record
Association v Union of India (1993) 4 SCC 441, Supreme Court Advocates-on-Record Association v Union of India (1994) 1
SCJ 348.
15 Sarojini Ramaswami v State of India AIR 1992 SC 2219, Sarojini Ramaswami v State of India (1992) 4 SCC 506, Sarojini
Ramaswami v State of India (1992) 7 SLR 481.
16 Romesh Thappar v State of Madras AIR 1950 SC 124 [LNIND 1950 SC 27] [LNIND 1950 SC 27] [LNIND 1950 SC 27],
Romesh Thappar v State of Madras (1950) SCJ 418, Romesh Thappar v State of Madras (1950) Mad WN 435. See contra
Kanubhai Brahmbhatt v State of Gujarat AIR 1987 SC 1159 [LNIND 1987 SC 190] [LNIND 1987 SC 190] [LNIND 1987 SC 190],
Kanubhai Brahmbhatt v State of Gujarat (1987) 1 SCJ 530, Kanubhai Brahmbhatt v State of Gujarat (1987) JT 475 (a petitioner,
complaining of infraction of his fundamental right must approach the high court first rather than the Supreme Court as there is a
huge backlog of cases pending before the Supreme Court).
17 State of Madras v VG Row AIR 1952 SC 196 [LNIND 1952 SC 23] [LNIND 1952 SC 23] [LNIND 1952 SC 23], State of
Madras v VG Row [1952] SCR 597 [LNIND 1952 SC 23] [LNIND 1952 SC 23] [LNIND 1952 SC 23], State of Madras v VG Row
(1952) SCJ 253 [LNIND 1952 SC 23] [LNIND 1952 SC 23] [LNIND 1952 SC 23]; Kharak Singh v State of Uttar Pradesh AIR
1963 SC 1295 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436], Kharak Singh v State of Uttar Pradesh
[1964] 1 SCR 332 [LNIND 1962 SC 436] [LNIND 1962 SC 436] [LNIND 1962 SC 436], Kharak Singh v State of Uttar Pradesh
(1964) 2 SCJ 107; Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras AIR 1959 SC 725 [LNIND 1959 SC
27] [LNIND 1959 SC 27] [LNIND 1959 SC 27], Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959)
SCJ 858, Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959) 2 SCA 248; Chiranjit Lal Chowdhury v
Union of India AIR 1951 SC 41 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55], Chiranjit Lal Chowdhury v
Union of India [1950] SCR 869 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55], Chiranjit Lal Chowdhury v

380 189
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ADMINISTRATIVE LAW/20. WRIT JURISDICTION OF SUPREME COURT/(2) PARTIES INVOLVED/A.

WHO MAY APPLY/(i) Introduction/[005.257] Locus standi
[005.257] Locus standi The general principle is that a person whose fundamental right has been infringed
has locus standi to move the Supreme Court1 for the enforcement of his right2.
The legal right to be enforced through the writ jurisdiction of the apex court must ordinarily be the right of the
petitioner himself. As rights are different and inhere in different legal entities, it is not competent for a person
to seek to enforce the rights of another, except when the law permits him to do so3. This principle is based
on the theory that remedies and rights are correlative and therefore, only a person whose own right is in
jeopardy is entitled to seek a remedy. Since a corporation has a distinct legal personality, with rights and
duties separate from those of its individual members, a shareholder cannot complain against a law which
affects the fundamental right of the corporation, except to the extent to which it infringes his own fundamental
right as well4. However, a petition for a writ of habeas corpus5 may be made not only by the person who is
imprisoned or detained but by any person, provided he is not a complete stranger, for liberating a person
from an illegal imprisonment6. The rule of standing is also relaxed in case of a petition for quo warranto7.
The movement towards broader standing to invoke judicial review is justified by the argument that the great
expansion in the power of the bureaucracy has correspondingly increased the need for judicial supervision
that involves lowering of barriers in the way of invoking judicial review8.
If public property is dissipated, it would require a strong argument to convince the Court that a section of the
public, which is directly interested and affected, would have no right to complain of the infraction of public
duties and obligations9.
If the executive has no authority to pass the impugned order, it would be improper to allow such an order to
remain alive and operative on the sole ground that the person who filed the writ petition has strictly no locus
standi10.
Hence, it is not necessary that a victim of violation of fundamental rights must personally approach the
Supreme Court for redress as the Court can itself, suo motu, take cognisance of the matter or it may do so
on a petition filed by any public spirited individual11.
1 Ie move the Supreme Court though appropriate proceedings under the Constitution of India art 32 (see generally[80]
constitutional law).
2 Also see Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
3 Governing Body, GC College, Silchar, Assam v Gauhati University AIR 1973 SC 761 [LNIND 1972 SC 505] [LNIND 1972 SC
505] [LNIND 1972 SC 505], Governing Body, GC College, Silchar, Assam v Gauhati University (1973) SCC (Cr) 279;
Satyanarayana Sinjha v S Lal and Co Pvt Ltd AIR 1973 SC 2720 [LNIND 1973 SC 268] [LNIND 1973 SC 268] [LNIND 1973 SC
268], Satyanarayana Sinjha v S Lal and Co Pvt Ltd (1973) 2 SCC 696 [LNIND 1973 SC 268] [LNIND 1973 SC 268] [LNIND
1973 SC 268], Satyanarayana Sinjha v S Lal and Co Pvt Ltd (1973) 2 SCWR 457.
4 Chiranjit Lal Chowdhury v Union of India AIR 1951 SC 41 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55],
Chiranjit Lal Chowdhury v Union of India [1950] SCR 869 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55],
Chiranjit Lal Chowdhury v Union of India (1951) SCJ 29 [LNIND 1950 SC 55] [LNIND 1950 SC 55] [LNIND 1950 SC 55].
6 Sunil Batra v Delhi Administration AIR 1980 SC 1579, Sunil Batra v Delhi Administration (1980) 3 SCC 488 [LNIND 1978 SC
215] [LNIND 1978 SC 215] [LNIND 1978 SC 215], Sunil Batra v Delhi Administration [1980] 2 SCR 557 [LNIND 1978 SC 215]
[LNIND 1978 SC 215] [LNIND 1978 SC 215].
8 Akhil Bharatiya Soshit Karmachari Sangh (Railway) v Union of India AIR 1981 SC 212 [LNIND 1980 SC 454] [LNIND 1980
SC 454] [LNIND 1980 SC 454], Akhil Bharatiya Soshit Karmachari Sangh (Railway) v Union of India (1981) 1 SCC 246, Akhil
Bharatiya Soshit Karmachari Sangh (Railway) v Union of India [1981] 2 SCR 185 [LNIND 1980 SC 460] [LNIND 1980 SC 460]
[LNIND 1980 SC 460](the Supreme Court overruled the objection that an unrecognised association cannot file a petition under
381 190
Page
the Constitution of India art 32; whether the petitioners belong to a recognised union or not, the fact remains that a large body of
persons with a common grievance exists and they have approached the Supreme Court under art 32).
9 Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India AIR 1981 SC 344, Fertilizer Corporation, Kamgar Union,
(Regd) Sindri v Union of India (1981) 1 SCC 568 [LNIND 1980 SC 455] [LNIND 1980 SC 455] [LNIND 1980 SC 455], Fertilizer
Corporation, Kamgar Union, (Regd) Sindri v Union of India [1981] 2 SCR 52(The Fertiliser Corporation, a government company,
proposed to sell some old machinery; the labour union filed a petition under the Constitution of India art 32 in the Supreme
Court challenging the sale; the Court conceded legal standing to the union to file the petition and stated that a worker clearly
has interest in the industry and so he will have standing to challenge any wrong doing by the management).
10 M S Jayaraj v Comr Of Excise, Kerala 2000 7 SCC 552 [LNIND 2000 SC 2302] [LNIND 2000 SC 2302] [LNIND 2000 SC
2302]; Shree Digvijay Cement Co Ltd v State of Rajasthan AIR 2000 SC 680 [LNIND 1999 SC 1184] [LNIND 1999 SC 1184]
[LNIND 1999 SC 1184], Shree Digvijay Cement Co Ltd v State of Rajasthan AIR 2000 SCW 207, Shree Digvijay Cement Co Ltd
v State of Rajasthan (2000) 1 SCC 688 [LNIND 1999 SC 1184] [LNIND 1999 SC 1184] [LNIND 1999 SC 1184].
11 As to public interest litigation see [005.330]. See generally [245]PUBLIC INTEREST LITIGATION.

WHO MAY APPLY/(i) Introduction/[005.258] Companies and corporations
[005.258] Companies and corporations A number of fundamental rights are available only to the citizens of
India, for instance freedom of speech, freedom to carry on trade and commerce and the like1.
A company is not regarded as a citizen2. A company thus, cannot by itself complain of violation of a
fundamental right. In such cases, writ petitions are filed by a shareholder along with the company, even
though a company has a distinct personality separate from its shareholders. This is permitted on the premise
that a court cannot deny relief when by state action the rights of the individual shareholder are impaired, if
that action impairs the rights of the company as well3.
2 State Trading Corporation of India v Commercial Tax Officer AIR 1963 SC 1811 [LNIND 1963 SC 334] [LNIND 1963 SC 334]
[LNIND 1963 SC 334], State Trading Corporation of India v Commercial Tax Officer [1964] 4 SCR 99 [LNIND 1963 SC 334]
[LNIND 1963 SC 334] [LNIND 1963 SC 334], State Trading Corporation of India v Commercial Tax Officer (1963) 33 Comp Cas
1057; Tata Engineering & Locomotive Co Ltd v State of Bihar AIR 1965 SC 40, Tata Engineering & Locomotive Co Ltd v State
of Bihar (1964) 1 SCJ 666, Tata Engineering & Locomotive Co Ltd v State of Bihar (1965) 1 SCA 365.
3 Bennett Coleman & Co Ltd v Union of India AIR 1973 SC 106 [LNIND 1972 SC 514] [LNIND 1972 SC 514] [LNIND 1972 SC
514], Bennett Coleman & Co Ltd v Union of India (1972) 2 SCC 788 [LNIND 1972 SC 514] [LNIND 1972 SC 514] [LNIND 1972
SC 514], Bennett Coleman & Co Ltd v Union of India (1973) 1 SCJ 177(validity of a law affecting the freedom of newspapers
could be challenged by the shareholders of a newspaper publishing company, readers of the newspaper, editor and printer
thereof as their own freedom of speech guaranteed under the Constitution of India art 19(1)(a) along with the rights of the
company were affected by the impugned law; the Supreme Court ruled that the fundamental rights of the shareholders as
citizens are not lost when they associate to form a company; the reason is that the shareholders' rights are equally and
necessarily affected if the rights of the company are affected); Delhi Cloth and General Mills Co Ltd v Union of India AIR 1983
SC 937 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175], Delhi Cloth and General Mills Co Ltd v Union of
India (1983) 4 SCC 166 [LNIND 1983 SC 175] [LNIND 1983 SC 175] [LNIND 1983 SC 175], Delhi Cloth and General Mills Co
Ltd v Union of India (1983) UJ 699; Press trust of India v Union of India AIR 1974 SC 1044 [LNIND 1974 SC 163] [LNIND 1974
SC 163] [LNIND 1974 SC 163], Press trust of India v Union of India (1974) 4 SCC 638 [LNIND 1974 SC 163] [LNIND 1974 SC
163] [LNIND 1974 SC 163], Press trust of India v Union of India [1975] 3 SCR 499 [LNIND 1974 SC 163] [LNIND 1974 SC 163]
[LNIND 1974 SC 163]; Rustom Cavasjee Cooper v Union of India AIR 1970 SC 564, Rustom Cavasjee Cooper v Union of India
(1970) 1 SCC 248, Rustom Cavasjee Cooper v Union of India (1970) 1 SCJ 564.

WHO MAY APPLY/(ii) Code of Civil Procedure 1908/[005.259] Applicability
382 191
Page
[005.259] Applicability The principle applicable to civil suits, that all parties interested in the subject matter
of the suit must be made parties, is not applicable to writ petitions before the Supreme Court1. If a petitioner
has a right to maintain the petition, his petition would not be thrown out and relief refused to him merely
because he has not made another person, having equal right with him to maintain the petition, a party
thereto2.
2 Mahendralal Jaini v State of Uttar Pradesh AIR 1963 SC 1019 [LNIND 1962 SC 358] [LNIND 1962 SC 358] [LNIND 1962 SC
358].

ADMINISTRATIVE LAW/20. WRIT JURISDICTION OF SUPREME COURT/(2) PARTIES INVOLVED/B.
AGAINST WHOM WRIT MAY BE ISSUED/(i) Introduction/[005.260] Generally
[005.260] Generally Generally, fundamental rights are enforceable against the state and so the writ
jurisdiction of the Supreme Court lies against the state1.
However, a few fundamental rights are available against private persons as well2 and thus, in case of
violation of any such right, the Supreme Court may make appropriate orders against private persons3.
1 As to the meaning of 'state' see [005.261].
2 See the Constitution of India arts 17, 21 23 and 24 (see generally[80]CONSTITUTIONAL LAW.)
3 People's Union for Democratic Rights v Union of India AIR 1982 SC 1473 [LNIND 1982 SC 135] [LNIND 1982 SC 135]
[LNIND 1982 SC 135], People's Union for Democratic Rights v Union of India (1982) 2 SCC 494 [LNIND 1982 SC 135] [LNIND
1982 SC 135] [LNIND 1982 SC 135], People's Union for Democratic Rights v Union of India (1982) 2 Lab LJ 454; Vishaka v
State of Rajasthan AIR 1997 SC 3011 [LNIND 1997 SC 1081] [LNIND 1997 SC 1081] [LNIND 1997 SC 1081], Vishaka v State
of Rajasthan (1997) 6 SCC 241 [LNIND 1997 SC 1081] [LNIND 1997 SC 1081] [LNIND 1997 SC 1081], Vishaka v State of
Rajasthan (1997) 7 JT 384.

AGAINST WHOM WRIT MAY BE ISSUED/(i) Introduction/[005.261] State
[005.261] State The writ jurisdiction of the Supreme Court can be invoked for the purpose of enforcement of
fundamental rights. Fundamental rights are claimed mostly against the state and its instrumentalities and not
against private bodies1. Thus, the actions of any of the bodies comprised within the term state can be
challenged before the Supreme Court2 on the ground of violation of fundamental rights, by invoking the writ
jurisdiction of the Supreme Court. The term 'state' includes:
(1) the Government and Parliament of India;

(2) the government and the Legislature of a state;
(3) all local authorities; or
(4) other authorities within the territory of India or under the control of the Central Government3.
1 PD Shamdasani v Central Bank of India Ltd AIR 1952 SC 59 [LNIND 1951 SC 78] [LNIND 1951 SC 78] [LNIND 1951 SC 78],
383 192
Page
PD Shamdasani v Central Bank of India Ltd [1952] SCR 391 [LNIND 1951 SC 78] [LNIND 1951 SC 78] [LNIND 1951 SC 78],
PD Shamdasani v Central Bank of India Ltd (1952) SCJ 29; Vidya Verma, through next friend R v S Mani AIR 1956 SC 108
[LNIND 1955 SC 102] [LNIND 1955 SC 102] [LNIND 1955 SC 102]: The Constitution of India art 17 and 23 can be enforced
against private parties. Art 17 abolishes untouchability and art 23 prohibits traffic in human beings and forced labour (see
2 Ie challenged under the Constitution of India art 32 (see generally[80]CONSTITUTIONAL LAW).

AGAINST WHOM WRIT MAY BE ISSUED/(ii) Other Authorities/[005.262] Meaning
[005.262] Meaning The expression other authorities is wide enough to include within its fold every authority
created by a statute and must be taken in a comprehensive sense as including all constitutional or statutory
authorities on whom powers are conferred by law1. The government, acting departmentally or through
officials falls within the definition of state2. Regarding bodies falling outside the scope of these departments,
following categories may be made:
(1) statutory bodies, which are directly created and incorporated by a statute for instance the Life
Insurance Corporation (LIC) created by the Life Insurance Corporation Act 1956 or the AIR
Corporations (Air India or Indian Airlines Corporation) created by the AIR Corporation Act
19533.
(2) bodies created by the government under a statutory power, for example, power was given to
the government to create a warehousing corporation under the Warehousing Corporations Act
1962 and again, power was given to the government to create a road transport corporation
under the Road Transport Corporations Act 1950.
(3) bodies, such as, private limited companies or public limited companies which come into life
when they are registered under the Companies Act 1956, a statute of a general nature.
(4) bodies registered under a general law, such as, the Societies Registration Act 1860 with its
constitution, working and powers being regulated by another law such as a University Act.
Thus, it is for the sake of convenience that the government does not always act departmentally but also
through various types of bodies, such as, a company, co-operative society, corporation and the like. This
contrivance of carrying on such activities through different bodies cannot exonerate the government from
implicit obedience to the fundamental rights. The courts must be anxious to enlarge the scope and width of
the fundamental rights by bringing within their sweep every authority that is an instrumentality or agency of
the government or the corporate personality through which the government is acting. By doing so, the
Supreme Court would be protecting the fundamental rights from being annihilated by the Government
resorting to the expedient of setting up various bodies, outside government departments, to discharge its
manifold functions4.
A fundamental right can be enforced against an authority when it is within the Indian territory or it is under the
control of the Government of India though outside the Indian territory. In the latter case, a writ would be
issued to the Government of India which can have it executed by the concerned authority by exercising its
power of control over it. A quasi-judicial authority is not subject to the control of the government in the
functional sense and therefore, no order can be passed against the government for the enforcement of a
fundamental right by a quasi-judicial body functioning outside India5.
Rajasthan State Electricity Board, Jaipur v Mohanlal AIR 1967 SC 1857 [LNIND 1967 SC 109] [LNIND 1967 SC 109] [LNIND
1967 SC 109], Rajasthan State Electricity Board, Jaipur v Mohanlal [1967] 3 SCR 377 [LNIND 1967 SC 109] [LNIND 1967 SC
384 193
Page
109] [LNIND 1967 SC 109], Rajasthan State Electricity Board, Jaipur v Mohanlal (1968) 1 LLJ 257 [LNIND 1967 SC 110]
[LNIND 1967 SC 110] [LNIND 1967 SC 110]: Causing a breach in the restrictive view of the meaning of 'state', the Court
considered the question whether a State Electricity Board, constituted by a statute, could be regarded as an authority; it was
argued that the board was a body corporate having a separate existence, exercised commercial functions, was an autonomous
body, was not functioning as an agent of the executive and so could not be regarded as an authority if that expression be read
ejusdem generis with the preceding terms therein; the court, however, ruled that the board was an authority because:
(1) the principle of ejusdem generis could not be applied to the interpretation of the term other authorities under
the Constitution of India art 12, the reason being that this rule could be invoked only when there was a distinct
genus or category running through the bodies already named. There was no common genus running through
the bodies mentioned in art 12 before the words other authorities, nor could these bodies be placed in one
single category on any rational basis.
(2) the expression other authorities is wide enough to include within it every authority created by a statute. The
court thus ruled that the expression other authorities must be taken in a comprehensive sense as including all
constitutional or statutory authorities on whom powers are conferred by law. This is irrespective of the fact that
some of the powers conferred may be for the purpose of carrying on commercial activities.
Thus, on this basis, the State Electricity Board constituted under an Act even though carrying on some commercial activities could not
be excluded from the scope of the word authorities.
2 Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79]
[LNIND 1975 SC 79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 [LNIND 1975 SC 79] [LNIND
1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi [1975] 2 SCR 619(a company
incorporated under the Companies Act 1956 is not created by the Companies Act but comes into existence in accordance with
the provisions of the Act; it is not a statutory body because it is not created by the statute; it is a body created in accordance
with the provisions of the statute).
3 Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain AIR 1976 SC 888 [LNIND 1975 SC 514] [LNIND
1975 SC 514] [LNIND 1975 SC 514], Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain (1976) 2 SCC
58 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514], Executive Committee of Vaish Degree College, Shamli v
Lakshmi Narain [1976] 2 SCR 1006 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514] (a mere regulation of a
non-statutory body by a statute will not convert it into a statutory body).
Ajay Hasia v Khalid Mujib Sehravardi [1981] 2 SCR 79 [LNIND 1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456].
5 K S Rama Murthy v Chief Commissioner, Pondicherry AIR 1963 SC 1464 [LNIND 1963 SC 10] [LNIND 1963 SC 10] [LNIND
1963 SC 10].

AGAINST WHOM WRIT MAY BE ISSUED/(ii) Other Authorities/[005.263] Instrumentality of State
[005.263] Instrumentality of State In order to gauge whether a writ lies against a body1, the Supreme Court
has developed the concept of an instrumentality of the state. Any body which can be regarded as an
instrumentality of the state, irrespective of whether it is statutory on non statutory2 falls under the definition of
state3 and thus, is subject to the writ jurisdiction of the apex court. Oone of the rationale behind such
approach is that the governing power, wherever located, must be subject to the fundamental constitutional
limitations4. Whether there exists a deep and pervasive government control and substantial financial
contribution by the government to the concerned body decides the question of it being a state.
Characterising a body as an instrumentality or agency of the government does not suggest that the
concerned body must be an agent of the government in the sense of whatever the body does is binding on
the government. A corporation, some of the functions of which are of commercial nature, may be an
instrumentality5.
Even if a corporation has an independent personality in the eyes of the law, it may be subject to the control
of the government or be an instrumentality of the government as the notion of the State acting through a
corporation and making it an agency or instrumentality of the State is a popular one6. However, a
government company incorporated under the Companies Act 1956 may not be an authority and thus may not
385 194
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come within the ambit of 'state'7.
Where a corporation is an instrumentality or agency of the government, it would be subject to the same
constitutional or public law limitation as the government itself8.
A non-statutory body must be regarded as an authority, if it is an instrumentality or agency of government.

Thus, not only a department of the government but even an instrumentality of the government, whether
statutory or non-statutory, falls under the definition of state9.
The courts have been led to take an expansive view of the ambit of state because of the feeling that if
instrumentalities of the government are not subject to the same legal discipline as the government itself on
the plea of them being distinct and autonomous legal entities, then the government would be tempted to
adopt the stratagem of setting up such administrative structures on a big scale in order to evade the
discipline and constraints of the fundamental rights thus eroding and negating their efficacy to a very large
extent. In this process, judicial control over these bodies would be weakened10.
1 See [005.260].
2 As to statutory and non statutory bodies see [005.265].
3 See the Constitution of India art 12 (see generally[80] constitutional law).
1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi [1975] 2 SCR 619.
5 Rajasthan State Electricity Board, Jaipur v Mohanlal AIR 1967 SC 1857 [LNIND 1967 SC 109] [LNIND 1967 SC 109] [LNIND
1967 SC 109], Rajasthan State Electricity Board, Jaipur v Mohanlal [1967] 3 SCR 377 [LNIND 1967 SC 109] [LNIND 1967 SC
109] [LNIND 1967 SC 109], Rajasthan State Electricity Board, Jaipur v Mohanlal (1968) 1 LLJ 257 [LNIND 1967 SC 110]
[LNIND 1967 SC 110] [LNIND 1967 SC 110](the Supreme Court ruled that a State electricity board, set up by a statute, having
some commercial functions to discharge, would be an authority under the Constitution of India art 12; the Court emphasised
that it is not material that some of the powers conferred on the concerned authority are of commercial nature; this is because
under art 298, the government is empowered to carry on any trade or commerce; thus, the Court observed that the
circumstance that the Board under the Electricity (Supply) Act 1948 is required to carry on some activities of the nature of trade
or commerce does not give any indication that the Board must be excluded from the scope of the word state as used in art 12).
1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi [1975] 2 SCR 619(three statutory
bodies--the Life Insurance Corporation, Oil and Natural Gas Commission and the Finance Corporation, were held to be
authorities and thus, were taken to fall within the term state as under the Constitution of India art 12, even though these bodies
performed mainly commercial functions); Ramana Dayaram Shetty v International Authority of India AIR 1979 SC 1628 [LNIND
1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275], Ramana Dayaram Shetty v International Authority of India (1979) 3
SCC 489 [LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275], Ramana Dayaram Shetty v International Authority
of India [1979] 3 SCR 1014 [LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275]; A L Kalra v Project &
Equipment Corporation of India Ltd AIR 1984 SC 1361 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136], A L
Kalra v Project & Equipment Corporation of India Ltd (1984) 3 SCC 316 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND
1984 SC 136], A L Kalra v Project & Equipment Corporation of India Ltd [1984] 3 SCR 646 [LNIND 1984 SC 136] [LNIND 1984
SC 136] [LNIND 1984 SC 136] (a government company was held to be an authority even though the company is registered
under the Indian Companies Act 1956 and has no statutory basis). See contra Sabhajit Tewary v Union of India AIR 1975 SC
1329 [LNIND 1975 SC 575] [LNIND 1975 SC 575] [LNIND 1975 SC 575], Sabhajit Tewary v Union of India (1975) 1 SCC 485
[LNIND 1975 SC 575] [LNIND 1975 SC 575] [LNIND 1975 SC 575], Sabhajit Tewary v Union of India [1975] 3 SCR 616 [LNIND
1975 SC 575] [LNIND 1975 SC 575] [LNIND 1975 SC 575] (the Indian Council of Scientific Research, a body registered under
the Societies Registration Act, thus a non statutory body, but under a good deal of governmental control and funding, with the
Prime Minister being the ex officio President thereof, was held not to be a 'state'; a non statutory body cannot be regarded as an
authority howsoever pervasive be the government control over it).
7 R D Singe v Secretary, BSSI Corp AIR 1974 Pat 212; ML Nohria v General Insurance Corpn, Bombay AIR 1979 P & H 183,
ML Nohria v General Insurance Corpn, Bombay (1979) 81 Punj LR 431, ML Nohria v General Insurance Corpn, Bombay (1979)
1 Lab LJ 414; Abdul Ahad Loan v Manager, Government Woolen Mill AIR 1979 J & K 57.
8 Ramana Dayaram Shetty v International Authority of India AIR 1979 SC 1628 [LNIND 1979 SC 275] [LNIND 1979 SC 275]
[LNIND 1979 SC 275], Ramana Dayaram Shetty v International Authority of India (1979) 3 SCC 489 [LNIND 1979 SC 275]
[LNIND 1979 SC 275] [LNIND 1979 SC 275], Ramana Dayaram Shetty v International Authority of India [1979] 3 SCR 1014
[LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275] (the International airport Authority, a statutory body, was
386 195
Page
held to be an authority; the Supreme Court also developed the general proposition that an instrumentality or agency of the
government would be regarded as an authority or 'state' within art 12)
9 Som Prakash Rekhi v Union of India AIR 1981 SC 212 [LNIND 1980 SC 454] [LNIND 1980 SC 454] [LNIND 1980 SC 454],
Som Prakash Rekhi v Union of India (1981) 1 SCC 449 [LNIND 1980 SC 454] [LNIND 1980 SC 454] [LNIND 1980 SC 454],
Som Prakash Rekhi v Union of India [1981] 2 SCR 111 [LNIND 1980 SC 454] [LNIND 1980 SC 454] [LNIND 1980 SC 454](the
company was held to fall under the Constitution of India art 12; the key factor was the brooding presence of the state behind the
operations of the body, statutory or other; the body was semi statutory and semi non statutory; it was non statutory in origin as it
was registered; it also was recognised by the Act in question and thus, had some statutory flavour in its operations and
functions; there was a formal transfer of the undertaking from the Government to a government company; the company was
thus regarded as the alter ego of the Central Government; the control by the Government over the corporation was writ large in
the Act and in the factum of being a government company); Ajay Hasia v Khalid Mujib Sehravardi AIR 1981 SC 487 [LNIND
1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456], Ajay Hasia v Khalid Mujib Sehravardi (1981) 1 SCC 722 [LNIND
1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456], Ajay Hasia v Khalid Mujib Sehravardi [1981] 2 SCR 79 [LNIND
1980 SC 456] [LNIND 1980 SC 456] [LNIND 1980 SC 456](where a society registered under the Societies Registration Act
1860 without having any statutory flavour was held to be an authority as it was regarded as an instrumentality of the
government; the society in question ran the regional engineering college, sponsored, supervised and financially supported by
the Government; money to run the college was provided by the State as well as the Central Governments; the state government
could review the functioning of the college and issue suitable instructions if considered necessary; nominees of the state and
Central Governments were members of the society including its Chairman; the Supreme Court ruled that where a corporation is
an instrumentality or agency of the government, it must be held to be an authority under the Constitution of India art 12; that the
concept of instrumentality or agency of the government is not limited to a corporation created by a statute but is equally
applicable to a company or society; the question is not how the juristic person is born but why it has been brought into
existence; whatever may be the genetical origin of the body, if its an instrumentality of the government, it is an authority under
art 12).
10 Steel Authority of India Ltd v National Union Water Front Workers AIR 2001 SC 3527 [LNIND 2001 SC 1870] [LNIND 2001
SC 1870] [LNIND 2001 SC 1870], Steel Authority of India Ltd v National Union Water Front Workers (2001) 7 SCC 1 [LNIND
2001 SC 1870] [LNIND 2001 SC 1870] [LNIND 2001 SC 1870], Steel Authority of India Ltd v National Union Water Front
Workers (2001) 2 Lab LJ 1087.

AGAINST WHOM WRIT MAY BE ISSUED/(ii) Other Authorities/[005.264] Test of instrumentality
[005.264] Test of instrumentality The main tests which the courts apply to determine whether a body is an
instrumentality of the government or not, based on funding and control, are as follows:
(1) whether the entire share capital or a major part of it held by the government;
(2) whether the body in question effectively controlled by the government not only in the making of
its policy but also in carrying out its functions;
(3) whether the government foots a substantial part of the bill for running the operations of the
concerned body;
(4) whether the administration of the body in the hands of the government appointed directors and
whether they subject to government control in the discharge of their functions;
(5) whether the state exercise deep and pervasive control over the body in question;
(6) whether the operation of the corporation is an important public function closely related to
government functions; and
(7) whether the body enjoys monopoly status conferred or protected by the state.
The above tests are not exhaustive but only indicative or illustrative. It is for the courts to decide in each case
whether the body in question falls within the purview of state1.
1 Biman Krishna Bose v United India Insurance Co Ltd 2001 6 SCC 477 [LNIND 2001 SC 1575] [LNIND 2001 SC 1575]
[LNIND 2001 SC 1575].
387 196
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AGAINST WHOM WRIT MAY BE ISSUED/(ii) Other Authorities/[005.265] Statutory and non statutory bodies
[005.265] Statutory and non statutory bodies A large number of bodies, statutory and non statutory1, have
been held to be authorities and thus 'state', for example, the Supreme Court has held the Statistical Institute
as an authority. It is a registered society but is governed by the Indian Statistical Institute Act 1959. The
representatives appointed by the Central Government dominate the composition of the body. The money
required for running the Institute is provided entirely by the Central Government and has to comply with all
the directions issued by the Central Government. The control of the Central Government is deep and
pervasive and therefore, to all intents and purposes, it is an instrumentality of the Central Government and
as such is an authority2.
If there is an instrumentality or agency of the state that has assumed the garb of a government company3, it
does not follow that it thereby ceases to be an instrumentality or agency of the state. one must necessarily
see through the corporate veil to ascertain whether there exists a face of an instrumentality or agency of the
statute behind that veil4.
Not only a body sponsored or created by the government may be treated as an authority, even a private
body, sponsored and formed by private persons, may be so treated if is supported by extraordinary
assistance given by the state. However, if the state funding is not very large, state financial support coupled
with an unusual degree of control over its management and policies may lead to the same result4.
The expanding connotation being given to the term authority is an instance of judicial creativity. The courts
have adopted this stance to bring as many bodies as possible within the discipline of fundamental rights as
wider the concept of other authority, wider will be the coverage of fundamental rights and, consequently of
the Supreme Courts writ jurisdiction5.
1 The following statutory bodies have been held to fall under the Constitution of India art 12:
(1) Life Corporation of India: Harshad J Shah v LIC of India AIR 1997 SC 2459 [LNIND 1997 SC 622] [LNIND
1997 SC 622] [LNIND 1997 SC 622], Harshad J Shah v LIC of India (1997) 5 SCC 64 [LNIND 1997 SC 622]
[LNIND 1997 SC 622] [LNIND 1997 SC 622], Harshad J Shah v LIC of India (1997) 2 SCJ 25; Life Insurance
Corporation of India v Consumer Education & Research Centre AIR 1995 SC 1811 [LNIND 1995 SC 665]
[LNIND 1995 SC 665] [LNIND 1995 SC 665], Life Insurance Corporation of India v Consumer Education &
Research Centre (1995) 5 SCC 482 [LNIND 1995 SC 653] [LNIND 1995 SC 653] [LNIND 1995 SC 653], Life
Insurance Corporation of India v Consumer Education & Research Centre (1995) AIR SCW 2834;
(2) Nationalised Banks: Hyderabad Commercials v Indian Bank AIR 1991 SC 2471, Hyderabad Commercials v
Indian Bank (1991) Supp 2 SCC 340, Hyderabad Commercials v Indian Bank (1991) Bank 390;
(3) Oil and Natural Gas Commission: Oil and Natural Gas Commission v Association of Natural Gas Consuming
Industries of Gujarat AIR 1990 SC 1851 [LNIND 1990 SC 311] [LNIND 1990 SC 311] [LNIND 1990 SC 311],
Oil and Natural Gas Commission v Association of Natural Gas Consuming Industries of Gujarat (1990) Supp
SCC 397, Oil and Natural Gas Commission v Association of Natural Gas Consuming Industries of Gujarat
[1990] 3 SCR 157 [LNIND 1990 SC 311] [LNIND 1990 SC 311] [LNIND 1990 SC 311];
(4) Gujarat State Financial Corporation: Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd AIR 1983 SC
848, Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd (1983) 3 SCC 379, Gujarat State Financial
Corporation v Lotus Hotels Pvt Ltd (1983) 2 SCWR 144;
(5) Uttar Pradesh Warehousing Corporation: The Managing Director, Uttar Pradesh Warehousing Corpn v Vijay
Narain Vajpayee AIR 1980 SC 840 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13], The
Managing Director, Uttar Pradesh Warehousing Corpn v Vijay Narain Vajpayee (1980) 3 SCC 459 [LNIND
1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980 SC 13], The Managing Director, Uttar Pradesh Warehousing
Corpn v Vijay Narain Vajpayee (1980) 1 SCWR 381 [LNIND 1980 SC 13] [LNIND 1980 SC 13] [LNIND 1980
SC 13];
(6) A transport Corporation: State Bank of India v Kalpaka Transport Co Pvt Ltd AIR 1979 Bom 250 [LNIND 1978
BOM 236] [LNIND 1978 BOM 236] [LNIND 1978 BOM 236];
(7) Road Transport Authority: Gen Manager, Mysore State Road Transport Copn v Devraj Urs AIR 1976 SC
1027 [LNIND 1975 SC 425] [LNIND 1975 SC 425] [LNIND 1975 SC 425], Gen Manager, Mysore State Road
Transport Copn v Devraj Urs (1976) 2 SCC 863, Gen Manager, Mysore State Road Transport Copn v Devraj
Urs (1976) SCWR 407;
(8) A university established by a statute: Akshaibar Lal v Vice chancellor, Banares Hindu University AIR 1961 SC
388 197
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619, Akshaibar Lal v Vice chancellor, Banares Hindu University [1961] 3 SCR 386;
(9) Electricity Board: DCM Ltd v Assistant Engineer, (HMT Subdivision, Rajasthan State Electricity Board, Kota
AIR 1988 Raj 64; Omega Adversiting Agency v State Electicity Board AIR 1982 Gau 37;
(10) Food Corporation:
(11) Damodar Valley Corporation: Amerendra Nath Mondal v Damodar Valley Corpn 1974 Lab IC 821;
(12) Reserve Bank of India: JC Sachdev v Reserve Bank of India, ILR (1973) 2 Del 392; Khadi and Village
Industries Board;
(13) Vincent v Khadi ILR (1974) 2 Ker 26;
(14) Coffee Board: AJ George v Coffee Board 1972 Lab IC 921;
The following non-statutory bodies have been held to fall under the Constitution of India art 12:
(1) Andhra Pradesh State Road Transport Corporation: Distt Manager, Andhra Pradesh State Road Transport
Corporation, Vijaywada v K Sivaji AIR 2001 SC 383, Distt Manager, Andhra Pradesh State Road Transport
Corporation, Vijaywada v K Sivaji (2001) 3 JT Supp 302, Distt Manager, Andhra Pradesh State Road
Transport Corporation, Vijaywada v K Sivaji (2001) 7 Scale 709;
(2) Companies: Balbir Kaur v Steel Authority of India AIR 2000 SC 1596, Balbir Kaur v Steel Authority of India
(2000) 6 SCC 493, Balbir Kaur v Steel Authority of India (2000) Lab IC 1900: (even if the entire share capital of
a company is subscribed by the government, it cannot yet be treated as a government department; the
company has its own corporate personality distinct from the government; such a government company can still
be treated as an authority under the Constitution of India art 12); Steel Authority of India Ltd v Shri Ambica
Mills Ltd AIR 1998 SC 418, Steel Authority of India Ltd v Shri Ambica Mills Ltd (1998) 1 SCC 465 [LNIND 1997
SC 2096] [LNIND 1997 SC 2096] [LNIND 1997 SC 2096], Steel Authority of India Ltd v Shri Ambica Mills Ltd
(1997) 3 SCJ 420; Hindustan Steel Works Construction Ltd v State of Kerala AIR 1997 SC 2275 [LNIND 1997
SC 705] [LNIND 1997 SC 705] [LNIND 1997 SC 705], Hindustan Steel Works Construction Ltd v State of
Kerala (1997) 5 SCC 171 [LNIND 1997 SC 705] [LNIND 1997 SC 705] [LNIND 1997 SC 705], Hindustan Steel
Works Construction Ltd v State of Kerala (1997) 2 SCJ 311; Western Coalfields Ltd v Special Area
Development Authority, Korba AIR 1982 SC 697 [LNIND 1981 SC 446] [LNIND 1981 SC 446] [LNIND 1981 SC
446], Western Coalfields Ltd v Special Area Development Authority, Korba (1982) 1 SCC 125 [LNIND 1981 SC
446] [LNIND 1981 SC 446] [LNIND 1981 SC 446], Western Coalfields Ltd v Special Area Development
Authority, Korba (1982) 2 SCJ 1; S L Agarwal v The General Manager, Hindustan Steel Ltd AIR 1970 SC
1150 [LNIND 1969 SC 498] [LNIND 1969 SC 498] [LNIND 1969 SC 498], S L Agarwal v The General
Manager, Hindustan Steel Ltd (1970) 2 SCJ 605 [LNIND 1969 SC 498] [LNIND 1969 SC 498] [LNIND 1969 SC
498], S L Agarwal v The General Manager, Hindustan Steel Ltd (1970) 2 Lab LJ 499 [LNIND 1969 SC 498]
[LNIND 1969 SC 498] [LNIND 1969 SC 498]; M Kumar v Bharath Earth Movers Ltd AIR 1999 Kant 343
[LNIND 1999 KANT 28] [LNIND 1999 KANT 28] [LNIND 1999 KANT 28], M Kumar v Bharath Earth Movers Ltd
(1999) ILR Kant 1715, M Kumar v Bharath Earth Movers Ltd (1999) 5 Kant LJ 193 (government companies,
such as, Bharat Earth Movers Ltd, Indian Telephone Industries Ltd, in which the Government holds 51 percent
of the share capital and which are subject to pervasive government control, have been held to be other
authorities under art 12);
(3) A society is registered under the Uttar Pradesh Co operative Societies Act 1965: Uttar Pradesh State Coop
Land Development Bank Ltd v Chandra Bhan Dubey AIR 1999 SC 753 [LNIND 1998 SC 1116] [LNIND 1998
SC 1116] [LNIND 1998 SC 1116], Uttar Pradesh State Coop Land Development Bank Ltd v Chandra Bhan
Dubey (1999) 1 SCC 741 [LNIND 1998 SC 1116] [LNIND 1998 SC 1116] [LNIND 1998 SC 1116], Uttar
Pradesh State Coop Land Development Bank Ltd v Chandra Bhan Dubey (1999) All LJ 463;
(4) The Council for the Indian School Certificate Examinations a society registered under the Societies
Registration Act and imparting education and holding examinations: Vibhu Kapoor v Council of Indian School
Certificate Examination AIR 1985 Del 142;
(5) Andhra Pradesh State Irrigation Development Corporation (a body registered under the Indian Companies Act
1956): B Satyanarayana v State of Andhra Pradesh AIR 1981 AP 125 [LNIND 1981 AP 15] [LNIND 1981 AP
15] [LNIND 1981 AP 15], B Satyanarayana v State of Andhra Pradesh (1981) 1 APLJ 444, B Satyanarayana v
State of Andhra Pradesh (1981) 2 Andh WR 193;
(5) A regional rural banks set up in pursuance of the power given by a statute: Chairman, Prathama Bank,
Moradabad v Vijay Kumar Goel AIR 1989 SC 1977 [LNIND 1989 SC 407] [LNIND 1989 SC 407] [LNIND 1989
SC 407], Chairman, Prathama Bank, Moradabad v Vijay Kumar Goel (1989) 4 SCC 441 [LNIND 1989 SC 407]
[LNIND 1989 SC 407] [LNIND 1989 SC 407], Chairman, Prathama Bank, Moradabad v Vijay Kumar Goel
(1989) SCC (L & S) 664;
(6) A Sainik School Society registered under the Societies Registration Act 1860: All India Sainik Schools
Employees Association v Defence Minister Cum Chairman, Board of Governors, Sainik School Society, New
Delhi AIR 1989 SC 88 [LNIND 1988 SC 500] [LNIND 1988 SC 500] [LNIND 1988 SC 500], All India Sainik
Schools Employees Association v Defence Minister Cum Chairman, Board of Governors, Sainik School
Society, New Delhi (1989) Supp 1 SCC 205, All India Sainik Schools Employees Association v Defence
Minister Cum Chairman, Board of Governors, Sainik School Society, New Delhi [1988] Supp 3 SCR 398;
(7) A Children's Aid Society, a registered body under the Societies Registration Act 1860: Sheela Barse v
Secretary, Children Aid Society AIR 1989 SC 656, Sheela Barse v Secretary, Children Aid Society (1987) 3
SCC 50, Sheela Barse v Secretary, Children Aid Society (1987) 1 SCJ 584;
(8) An aided school receiving 95 percent of its expenses by way of government grant and subject to regulations
made by the department of education though managed by a registered body: Manmohan Singh Jaitla v Comr,
Union Territory, Chandigarh AIR 1985 SC 364 [LNIND 1984 SC 347] [LNIND 1984 SC 347] [LNIND 1984 SC
347], Manmohan Singh Jaitla v Comr, Union Territory, Chandigarh (1985) SCC (Lab) 269, Manmohan Singh
389 198
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Jaitla v Comr, Union Territory, Chandigarh (1984) Supp SCC 540 [LNIND 1984 SC 347];
(9) Projects and Equipment Corp. of India, a subsidiary owned by the State Trading Corporation which is also a
non statutory body: AL Kalra v Project & Equipment Corporation of India Ltd AIR 1984 SC 1361 [LNIND 1984
SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136], AL Kalra v Project & Equipment Corporation of India Ltd
(1984) 3 SCC 316 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136], AL Kalra v Project &
Equipment Corporation of India Ltd [1984] 3 SCR 646 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND
1984 SC 136];
(10) The Indian Council of Agricultural Research, a society registered under the Societies Registration Act 1860:
Sabhajit Tewary v Union of India AIR 1975 SC 1329 [LNIND 1975 SC 575] [LNIND 1975 SC 575] [LNIND 1975
SC 575], Sabhajit Tewary v Union of India (1975) 1 SCC 485 [LNIND 1975 SC 575] [LNIND 1975 SC 575]
[LNIND 1975 SC 575], Sabhajit Tewary v Union of India [1975] 3 SCR 616 [LNIND 1975 SC 575] [LNIND 1975
SC 575] [LNIND 1975 SC 575](the Indian Council of Agricultural Research came into existence as a
department of the government, continued to be an attached office of the government even though it was
registered as a society; it was wholly financed by the government; it was accordingly been held to be an
authority under the Constitution of India art 12, as it is a society set up by the State); P K Ramachandra Iyer v
Union of India AIR 1984 SC 541 [LNIND 1983 SC 376] [LNIND 1983 SC 376] [LNIND 1983 SC 376], P K
Ramachandra Iyer v Union of India (1984) 2 SCC 141 [LNIND 1983 SC 376] [LNIND 1983 SC 376] [LNIND
1983 SC 376], P K Ramachandra Iyer v Union of India (1984) Lab IC 301; BS Minhas v Indian Statistical
Institute AIR 1984 SC 363 [LNIND 1983 SC 421] [LNIND 1983 SC 421] [LNIND 1983 SC 421], BS Minhas v
Indian Statistical Institute (1983) 4 SCC 582 [LNIND 1983 SC 421] [LNIND 1983 SC 421] [LNIND 1983 SC
421], BS Minhas v Indian Statistical Institute (1984) UJ 77(the Indian Statistical Institute, registered under the
Societies Registration Act 1860 but governed by the Indian Statistical Institute Act 1959, has been held to be
an authority under the Constitution of India art 12).
(11) National Agricultural Co-operative Federation of India (NAFED): Ajoomal Lilaram v Union of India AIR 1983
SC 278 [LNIND 1982 SC 195] [LNIND 1982 SC 195] [LNIND 1982 SC 195], Ajoomal Lilaram v Union of India
(1983) 1 SCC 119, Ajoomal Lilaram v Union of India (1982) UJ 904.
2 BS Minhas v Indian Statistical Institute AIR 1984 SC 363 [LNIND 1983 SC 421] [LNIND 1983 SC 421] [LNIND 1983 SC 421],
BS Minhas v Indian Statistical Institute (1983) 4 SCC 582 [LNIND 1983 SC 421] [LNIND 1983 SC 421] [LNIND 1983 SC 421],
BS Minhas v Indian Statistical Institute (1984) UJ 77.
3 Ie a government company as defined under the Companies Acts 617. Mysore Paper Mills Ltd v Mysore Paper Mills Officers
Association AIR 2002 SC 609 [LNIND 2002 SC 10] [LNIND 2002 SC 10] [LNIND 2002 SC 10], Mysore Paper Mills Ltd v Mysore
Paper Mills Officers Association (2002) 2 SCC 167 [LNIND 2002 SC 10] [LNIND 2002 SC 10] [LNIND 2002 SC 10], Mysore
Paper Mills Ltd v Mysore Paper Mills Officers Association (2002) 1 SCJ 16 (Mysore Paper Mills, a government company, was
held to be an instrumentality of the state government as more than 97 percent of the share capital of the company had been
contributed by the state government and the financial institutions of the Central Government and out of 12 directors, 5 were
government nominees and the rest approved by the Government; the company had been entrusted with important public duties
and the Government exercised various other forms of supervision over the Company; the company was held to be an
instrumentality of the Government and the physical form of a company was taken as a mere cloak or cover for the
Government); Central Inland Water Transport Corporation v Brojo Nath Ganguly AIR 1986 SC 1571 [LNIND 1986 SC 560]
[LNIND 1986 SC 560] [LNIND 1986 SC 560], Central Inland Water Transport Corporation v Brojo Nath Ganguly (1986) 3 SCC
156 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560], Central Inland Water Transport Corporation v Brojo
Nath Ganguly [1986] 2 SCR 278 [LNIND 1986 SC 560] [LNIND 1986 SC 560] [LNIND 1986 SC 560]. See contra Unni
Krishnan, JP v State of Andhra Pradesh AIR 1993 SC 2178 [LNIND 1993 SC 1110] [LNIND 1993 SC 1110] [LNIND 1993 SC
1110], Unni Krishnan, JP v State of Andhra Pradesh (1993) 1 SCC 645 [LNIND 1993 SC 1110] [LNIND 1993 SC 1110] [LNIND
1993 SC 1110], Unni Krishnan, JP v State of Andhra Pradesh [1993] 1 SCR 594 [LNIND 1993 SC 1110] [LNIND 1993 SC 1110]
[LNIND 1993 SC 1110](a private educational institution, even if it is recognised by or affiliated to, a university, cannot be
regarded as an instrumentality of the government for purposes of the Constitution of India art 12; recognition is only for the
purposes of conforming to the standards laid down by the State; affiliation to the university is with regard to the syllabi and the
courses of study); Tekraj Vasandi alias KL Basandhi v Union of India AIR 1988 SC 469 [LNIND 1987 SC 838] [LNIND 1987 SC
838] [LNIND 1987 SC 838], Tekraj Vasandi alias KL Basandhi v Union of India (1988) 1 SCC 236 [LNIND 1987 SC 838] [LNIND
1987 SC 838] [LNIND 1987 SC 838], Tekraj Vasandi alias KL Basandhi v Union of India {1988] 2 SCR 260 [LNIND 1987 SC
838] [LNIND 1987 SC 838] [LNIND 1987 SC 838](the Supreme Court held the Institute of Constitutional and Parliamentary
Studies as not being an authority under the Constitution of India art 12; the Institute is a registered society receiving grants from
the Central Government and having the President of India, Vice President and the Prime Minister among its honorary members;
the Central Government exercises control over the Institute; in spite of Government funding and control, the Court refused to
hold it as an authority).
4 ML Shaw In Re AIR 1984 Cal 22 [LNIND 1983 CAL 87] [LNIND 1983 CAL 87] [LNIND 1983 CAL 87], ML Shaw In Re (1983)
2 Lab LJ 305, ML Shaw In Re (1984) 1 Comp LJ 146(the Bengal Chamber of Commerce registered under the Companies Act
1956 is not an authority); Pritam Singh Gill v State of Punjab AIR 1982 P & H 228, Pritam Singh Gill v State of Punjab (1982) 2
Lab LJ 305, Pritam Singh Gill v State of Punjab (1984) 1 Comp LJ 146; RM Thomas v Cochin Refineries Ltd AIR 1982 Ker 248
[LNIND 1982 KER 120] [LNIND 1982 KER 120] [LNIND 1982 KER 120], (the Cochin Refineries Ltd, incorporated under the
Companies Act 1956 has been held to be not an authority because only 53 percent of its share capital has been subscribed by
the Central Government; 26 per cent share is held by a private foreign company which also nominates two directors on the
board of directors; government control over the company is not large; government's financial assistance is not unusual).
5 Predeep Kumar Biswas v Indian Institute of Chemical Biology 2002 JT 4 146.

390 199
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AGAINST WHOM WRIT MAY BE ISSUED/(ii) Other Authorities/[005.266] Local authority
[005.266] Local authority A local authority comes within the term 'state'1.
The expression 'local authority' refers to a unit of local self-government like a municipal committee or a
village panchayat established under a statute, a district board or zila parishad2 or a port trust3. The Delhi
Development Authority, a statutory body is a local authority because it is constituted for the specific purpose
of development of Delhi according to a plan and planned development of towns is a government function that
is traditionally entrusted to municipal bodies4.
In order to be characterised as a local authority, the authority concerned must:
(1) have a separate legal existence as a corporate body;

(2) have an independent entity;
(3) have a defined area to function and must ordinarily, wholly or partly, directly or indirectly; be
elected by the inhabitants of the area;
(4) enjoy a certain degree of autonomy either complete or partial;
(5) be entrusted by statute with such government functions and duties as are usually entrusted to
municipal bodies such as those connected with providing amenities to the inhabitants of the
locality like health and education, water and sewerage, town planning and development roads,
markets, transportation, social welfare services; and finally
(6) must have the power to raise funds for furtherance of its activities and fulfilment of its
objectives by levying taxes, rates, charges or fees5.
1 See the Constitution of India art 12 (see generally[80]CONSTITUTIONAL LAW). See also [005.261]; General Clauses Act
1897 s 3(31): a 'local authority' means a municipal committee, district board, body of port commissioners or other authority,
legally entitled to or entrusted by Government with the control or management of a municipal or local fund.
2 Ajit Singh v State of Punjab AIR 1967 SC 856 [LNIND 1966 SC 299] [LNIND 1966 SC 299] [LNIND 1966 SC 299], Ajit Singh
v State of Punjab [1969] 2 SCR 143, Ajit Singh v State of Punjab 69 Punj LR 271; Sirsi Municipality, by its President, Sirsi v
Cecelia Kom Francis Tellis AIR 1973 SC 855 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16], Sirsi Municipality,
by its President, Sirsi v Cecelia Kom Francis Tellis (1973) 1 SCC 409 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973
SC 16], Sirsi Municipality, by its President, Sirsi v Cecelia Kom Francis Tellis (1973) SCC (Lab) 207; J Hiralal v Corporation of
the City of Bangalore AIR 1982 Kant 137, J Hiralal v Corporation of the City of Bangalore (1981) 2 Kant LJ 437. See also State
of Gujarat v Shanitlal Mangaldas AIR 1969 SC 634 [LNIND 1969 SC 9] [LNIND 1969 SC 9] [LNIND 1969 SC 9], State of
Gujarat v Shanitlal Mangaldas (1969) 1 SCC 509 [LNIND 1969 SC 9] [LNIND 1969 SC 9] [LNIND 1969 SC 9], State of Gujarat v
Shanitlal Mangaldas (1969) 2 SCJ 322.
3 R Sarangapani v Port Trust of Madras AIR 1961 Mad 234 [LNIND 1960 MAD 48] [LNIND 1960 MAD 48] [LNIND 1960 MAD
48], R Sarangapani v Port Trust of Madras (1961) 1 Mad LJ 57, R Sarangapani v Port Trust of Madras 74 Mad LW 33.
4 Union of India v RC Jain AIR 1981 SC 951 [LNIND 1981 SC 84] [LNIND 1981 SC 84] [LNIND 1981 SC 84], Union of India v
RC Jain (1981) 2 SCC 308 [LNIND 1981 SC 84] [LNIND 1981 SC 84] [LNIND 1981 SC 84], Union of India v RC Jain [1981] 2
SCR 854 [LNIND 1981 SC 84] [LNIND 1981 SC 84] [LNIND 1981 SC 84]. Also see Premji Bhai Parmar v Delhi Development
Authority AIR 1980 SC 738 [LNIND 1979 SC 502] [LNIND 1979 SC 502] [LNIND 1979 SC 502], Premji Bhai Parmar v Delhi
Development Authority (1980) 2 SCC 129 [LNIND 1979 SC 502] [LNIND 1979 SC 502] [LNIND 1979 SC 502].
5 See Calcutta State Transport Corpn v Comr of Income Tax, West Bengal AIR 1996 SC 1316 [LNIND 1996 SC 738] [LNIND
1996 SC 738] [LNIND 1996 SC 738], Calcutta State Transport Corpn v Comr of Income Tax, West Bengal (1996) 8 SCC 758
[LNIND 1996 SC 738] [LNIND 1996 SC 738] [LNIND 1996 SC 738], Calcutta State Transport Corpn v Comr of Income Tax,
West Bengal (1996) 5 JT 510 [LNIND 1996 SC 738] [LNIND 1996 SC 738] [LNIND 1996 SC 738] (the Supreme Court refused
to characterise the Transport Corporation as a local authority; the corporation is meant only for the purpose of providing road
transport services and has no element of popular representation in its constitution; its powers and functions bear no relation to
391 200
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the powers and functions of a municipal committee and is more in the nature of a trading corporation).

AGAINST WHOM WRIT MAY BE ISSUED/(ii) Other Authorities/[005.267] Government
[005.267] Government The Government and Parliament of India, as well as the government and the
Legislature of a state, comes within the definition of 'state'1. Thus, writs2 or orders can be sought or granted
against the government for the enforcement of the fundamental rights3.
3 S Ramanathan v Union of India 2001 2 SCC 118 [LNIND 2000 SC 1801] [LNIND 2000 SC 1801] [LNIND 2000 SC 1801];
Centre for inquiry into Health and Allied Themes (CEHAT) v Union of India AIR 2001 SC 2007 [LNIND 2001 SC 1186] [LNIND
2001 SC 1186] [LNIND 2001 SC 1186], Centre for inquiry into Health and Allied Themes (CEHAT) v Union of India (2001) 5
SCC 577 [LNIND 2001 SC 1186] [LNIND 2001 SC 1186] [LNIND 2001 SC 1186], Centre for inquiry into Health and Allied
Themes (CEHAT) v Union of India (2001) 1 JT Supp 347; B R Kapur v State of Tamil Nadu 2001 7 SCC 231 [LNIND 2001 SC
2120] [LNIND 2001 SC 2120] [LNIND 2001 SC 2120]; SS Ahluwalia v Union of India AIR 2001 SC 1309 [LNIND 2001 SC 700]
[LNIND 2001 SC 700] [LNIND 2001 SC 700], SS Ahluwalia v Union of India (2001) 4 SCC 452 [LNIND 2001 SC 700] [LNIND
2001 SC 700] [LNIND 2001 SC 700], SS Ahluwalia v Union of India (2001) 2 SCJ 410.

ADMINISTRATIVE LAW/20. WRIT JURISDICTION OF SUPREME COURT/(3) PARTICULAR ASPECTS OF
WRIT JURISDICTION/[005.268] Invalidity of legislation
[005.268] Invalidity of legislation The writ jurisdiction of the Supreme Court1 can be invoked only when
there is an infringement of a fundamental right2. The jurisdiction conferred on the Supreme Court is an
important and integral part of the Indian Constitution but violation of a fundamental right is the sine qua non
for seeking enforcement of those rights by the Supreme Court. In order to establish violation of a
fundamental right, the Court must consider the direct and inevitable consequences of the action that is
sought to be remedied or the guarantee of which is sought to be enforced. In order to enforce a fundamental
right, judicial review of administrative, legislative and governmental action or non-action is permissible.
However, the writ jurisdiction of the apex court cannot be invoked simply to adjudge the validity of any
legislation or an administrative action, unless it adversely affects the fundamental rights of the petitioner3.
Where an enactment, affects the fundamental rights of a person, as soon as it comes into force and without
any further overt act being done, the person prejudicially affected is entitled immediately to invoke the writ
jurisdiction of the Supreme Court and get a declaration as regards the invalidity of the impugned Act4.
1 Ie the writ jurisdiction conferred by the Constitution of India art 32 (see generally[80]CONSTITUTIONAL LAW).
2 Hindi Hitrashak Samiti v Union of India AIR 1990 SC 851 [LNIND 1990 SC 107] [LNIND 1990 SC 107] [LNIND 1990 SC 107],
Hindi Hitrashak Samiti v Union of India (1990) 2 SCC 352 [LNIND 1990 SC 107] [LNIND 1990 SC 107] [LNIND 1990 SC 107],
Hindi Hitrashak Samiti v Union of India [1990] 1 SCR 588 [LNIND 1990 SC 107] [LNIND 1990 SC 107] [LNIND 1990 SC 107].
3 Shantabai v State of Bombay AIR 1958 SC 532 [LNIND 1958 SC 30] [LNIND 1958 SC 30] [LNIND 1958 SC 30], Shantabai v
State of Bombay (1958) SCJ 1073, Shantabai v State of Bombay (1958) SCA 727.
392 201
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Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959) 2 SCA 248. As to the meaning of declaration see
[005.345]-[005.348]. As to when declarations may or may not be granted see injunctions [170.029] and following.

WRIT JURISDICTION/[005.269] Invalidity of administrative action
[005.269] Invalidity of administrative action Under its writ jurisdiction, the Supreme Court confines itself to
the question of infringement of the fundamental rights and does not go into any other question1. Thus, a
petition against an illegal collection of tax is not maintainable as protection against imposition and collection
of taxes, except by authority of law2.
However, if a tax levied without legal authority infringes a fundamental right as well, writ jurisdiction of the
Supreme Court may be invoked as the remedy3.
1 Khyerbari Tea Co Ltd, Bombay v State of Assam AIR 1964 SC 925 [LNIND 1963 SC 295] [LNIND 1963 SC 295] [LNIND
1963 SC 295], Khyerbari Tea Co Ltd, Bombay v State of Assam [1964] 5 SCR 975 [LNIND 1963 SC 295] [LNIND 1963 SC 295]
[LNIND 1963 SC 295], Khyerbari Tea Co Ltd, Bombay v State of Assam (1964) 2 SCA 319.
2 The protection against imposition and collection of taxes, except by authority of law comes from the Constitution of India art
265 (see generally[80]CONSTITUTIONAL LAW). Laxmanappa Hanumantappa Jamkhandi v Union of India India AIR 1955 SC
3 [LNIND 1954 SC 140] [LNIND 1954 SC 140] [LNIND 1954 SC 140]; Ramji Lal v Income Tax Officer, Mohindergarh AIR 1951
SC 97 [LNIND 1951 SC 1] [LNIND 1951 SC 1] [LNIND 1951 SC 1], Ramji Lal v Income Tax Officer, Mohindergarh [1951] SCR
127 [LNIND 1951 SC 1] [LNIND 1951 SC 1] [LNIND 1951 SC 1], Ramji Lal v Income Tax Officer, Mohindergarh (1951) SCJ 203
3 Tata Iron and Steel Co Ltd v SR Sarkar AIR 1961 SC 65 [LNIND 1960 SC 184] [LNIND 1960 SC 184] [LNIND 1960 SC 184],
Tata Iron and Steel Co Ltd v SR Sarkar [1961] 1 SCR 379 [LNIND 1960 SC 184] [LNIND 1960 SC 184] [LNIND 1960 SC 184],
Tata Iron and Steel Co Ltd v SR Sarkar (1961) 1 SCA 364 [LNIND 1960 SC 184] [LNIND 1960 SC 184] [LNIND 1960 SC
184](the company had paid tax under the Central Sales Tax Act 1856 to the State of Bihar, however, the State of West Bengal
also sought to levy a tax under the same Act on the same turnover; the Supreme Court entertained a petition under the
Constitution of India art 32; under the Act, there was a single liability to pay tax on inter State sales; the company having paid
the tax to Bihar, threat by Bengal to recover the tax in respect of the same sales infringed the fundamental right under the
Constitution of India art 19(1)(g)); Kailash Nath v State of Uttar Pradesh AIR 1957 SC 790 [LNIND 1957 SC 263] [LNIND 1957
SC 263] [LNIND 1957 SC 263], Kailash Nath v State of Uttar Pradesh (1957) 8 STC 358 (Authority); Bidi Supply Co v Union of
India AIR 1956 SC 479 [LNIND 1956 SC 29] [LNIND 1956 SC 29] [LNIND 1956 SC 29]; Bengal Immunity Co Ltd v State of
Bihar AIR 1955 SC 661 [LNIND 1955 SC 122] [LNIND 1955 SC 122] [LNIND 1955 SC 122], Bengal Immunity Co Ltd v State of
Bihar [1955] 2 SCR 603 [LNIND 1955 SC 122] [LNIND 1955 SC 122] [LNIND 1955 SC 122].

WRIT JURISDICTION/[005.270] No restriction through legislation
[005.270] No restriction through legislation The right to move the Supreme Court for the enforcement of
fundamental rights is a fundamental right in itself and cannot be diluted or whittled down by any legislation1.
For instance, if the Preventive Detention Act 19502 prevents the detenu, on pain of prosecution, from
disclosing to any court the grounds of his detention communicated to him by the detaining authority, the
provision is bound to be declared unconstitutional as, unless the Supreme Court examines the grounds on
which the detention order is based, it cannot decide whether the detenu's fundamental right has been
infringed or not3.
The requirement of furnishing a security before moving the Supreme Courts writ jurisdiction discriminates
against the poor sections of the society. Besides this, the apex courts writ jurisdiction cannot be encumbered
393 202
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by rules, that favours the rich with an easy access to justice4. However, a rule aiding and facilitating the
orderly presentation of petitions5 cannot be regarded as unconstitutional. Thus, a rule requiring security for
filing a petition for review of an order made earlier by the Court dismissing a writ petition is valid as it does
not restrict the writ jurisdiction of the Supreme Court in any way6.
As any law cannot curtail the writ jurisdiction of the Supreme Court, it can direct any body to make any
inquiry and all authorities in the country are bound by the directions of the Court and have to act in its aid7.
2 See the Preventive Detention Act 1950 s 14.
3 AK Gopalan v State of Madras AIR 1950 SC 27 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22], AK Gopalan
v State of Madras (1950) SCJ 174 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22], AK Gopalan v State of
Madras [1950] SCR 88 [LNIND 1950 SC 22] [LNIND 1950 SC 22] [LNIND 1950 SC 22]; Lachhman Das v State of Punjab AIR
1963 SC 222 [LNIND 1962 SC 186] [LNIND 1962 SC 186] [LNIND 1962 SC 186], Lachhman Das v State of Punjab [1963] 2
SCR 353 [LNIND 1962 SC 186] [LNIND 1962 SC 186] [LNIND 1962 SC 186]; Prem Chand Garg v Excise Comr, Uttar Pradesh
AIR 1963 SC 996 [LNIND 1962 SC 356] [LNIND 1962 SC 356] [LNIND 1962 SC 356], Prem Chand Garg v Excise Comr, Uttar
Pradesh (1963) 2 SCA 125, Prem Chand Garg v Excise Comr, Uttar Pradesh [1963] Supp 1 SCR 885 (the Supreme Court
struck down one of its own rules under O 35 r 12 which required furnishing of security to move the Court under the Constitution
of India art 32, as it retarded the assertion or vindication of the fundamental right under art 32; the rule imposed a financial
obligation on the petitioner and if he did not comply with it, his petition would fail). See also Express Newspapers v India(the
Working Journalists Act 1955 constituted a wage board for fixing the rates of wages of working journalists; the Act was
challenged on the ground that it made no provision requiring the wage board to give reasons for its decision; it was argued that
this rendered the petitioner's right to approach the Supreme Court for enforcement of his fundamental rights nugatory because,
in the absence of reasons, the Court would not be able to investigate the validity of the order; the Court rejected the argument
saying that the Act would have been invalid had it prohibited the wage board from giving reasons for its decision, as that would
have rendered the Constitution of India art 32 nugatory; however, as there was no such provision and it was left to the board's
discretion to give reasons for its decision, art 32 was not infringed in any manner whatsoever); Hindustan Times Ltd v Union of
India AIR 1958 SC 578 [LNIND 1958 SC 25] [LNIND 1958 SC 25] [LNIND 1958 SC 25], Hindustan Times Ltd v Union of India
(1958) SCJ 1113, Hindustan Times Ltd v Union of India (1958) SCA 952.
4 Prem Chand Garg v Excise Comr, Uttar Pradesh AIR 1963 SC 996 [LNIND 1962 SC 356] [LNIND 1962 SC 356] [LNIND
1962 SC 356], Prem Chand Garg v Excise Comr, Uttar Pradesh (1963) 2 SCA 125, Prem Chand Garg v Excise Comr, Uttar
Pradesh [1963] Supp 1 SCR 885.
5 Ie presentation of petitions under the Constitution of India art 32 (see generally[80]CONSTITUTIONAL LAW).
6 Lala Ram v Supreme Court of India AIR 1967 SC 847 [LNIND 1966 SC 281] [LNIND 1966 SC 281] [LNIND 1966 SC 281],
Lala Ram v Supreme Court of India [1967] 2 SCR 14 [LNIND 1966 SC 281] [LNIND 1966 SC 281] [LNIND 1966 SC 281], Lala
Ram v Supreme Court of India (1967) 2 SCJ 225 [LNIND 1966 SC 281] [LNIND 1966 SC 281] [LNIND 1966 SC 281]. As to the
meaning of review see CIVIL PROCEDURE[65.773].
7 Paramjit Kaur v State of Punjab AIR 1999 SC 340, Paramjit Kaur v State of Punjab (1999) 2 SCC 131 [LNIND 1995 SC 1354]
[LNIND 1995 SC 1354] [LNIND 1995 SC 1354], Paramjit Kaur v State of Punjab (1998) 2 UJ 570(the Supreme Court directed
the National Human Rights Commission to make an inquiry into a specific matter; under the Act establishing the Commission, it
cannot inquire into any matter which is more than one year old; however, the Supreme Court ruled that the Commission could
inquire into the referred matter even though it was older than one year because the Commission would be functioning sui
generis under the direction issued by the Court under the Constitution of India art 32 and not under its own constituent statute).

WRIT JURISDICTION/[005.271] Res judicata
[005.271] Res judicata The Supreme Court has imposed a significant restriction on the invocation of its writ
jurisdiction1 by applying the doctrine of res judicata2. The rule of res judicata is based on considerations of
public policy as it is in the larger interest of the society that a finality must be attached to the binding
decisions of courts of competent jurisdiction and that individuals must not be made to face the same kind of
litigation twice3. Thus, an order assessing the tax, having been challenged once though a writ petition,
394 203
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cannot be challenged again through another writ petition even if the petitioner seeks to urge new grounds
against the order4. When once the Supreme Court has decided a question between two parties5, the same
question cannot be reopened between the same parties6.
However, res judicata would not apply if orders sought to be challenged through successive writ petitions are
different, as for instance, when a petition challenging the validity of the tax assessment for one year is
dismissed by the Supreme Court, a similar order passed for the subsequent year can be challenged through
a new writ petition on some new grounds not raised earlier in the first writ petition7.
The doctrine of constructive res judicata applies only to civil actions and civil proceedings. This principle of
public policy is entirely inapplicable to illegal detention and does not bar a subsequent petition for a writ of
habeas corpus8 on fresh grounds not taken in the earlier petition for the same relief. Thus, when a writ
petition challenging an order of detention is dismissed by the Court, a second petition can be filed on fresh,
additional grounds to challenge the legality of the continued detention of the detenu9.
The jurisdiction of a high court in dealing with a writ petition is substantially the same as that of the Supreme
Court. The scope of the writs10 being concurrent, res judicata applies. Thus, when a writ petition11 has been
dismissed by a high court, another writ petition12 cannot be moved in the Supreme Court to seek redress in
the same matter. The principle of res judicata envisages that if a judgment has been pronounced by a court
of competent jurisdiction, it is binding between the parties, unless it is reversed or modified in appeal,
revision or other procedure prescribed by law13.
A high court's decision can be attacked in an appeal to the Supreme Court but not through a writ petition14.
However, the principle of res judicata would apply only when the high court has disposed of the writ petition
on merits. If the petition has been dismissed by the high court not on merits, but on a technical ground as
petitioner's laches15 or that he had an efficacious alternative remedy available to him16 or the petition has
been dismissed in limine, without passing a speaking order17; then res judicata would not apply and the
Supreme Court can entertain a writ petition as the it ordinarily issues a writ if there is a breach of any
fundamental right18. The principle of res judicata also applies when a person first goes to the Supreme
Court19 and on his application having been rejected there, comes to the high court20.
The writ jurisdiction of the Supreme Court cannot be invoked to assail the correctness of a decision rendered
by the Court on merits or to claim its reconsideration by the Court21.
1 As to the writ jurisdiction of the Supreme Court see [005.255].
2 As to res judicata see [005.229] and [005.271](see also civil procedure [65.128]).
3 See The Direct Recruits Class II Engineering Officers' Association v State of Maharashtra AIR 1990 SC 1607 [LNIND 1990
SC 293] [LNIND 1990 SC 293] [LNIND 1990 SC 293], The Direct Recruits Class II Engineering Officers' Association v State of
Maharashtra (1990) 2 SCC 715 [LNIND 1990 SC 293] [LNIND 1990 SC 293] [LNIND 1990 SC 293], The Direct Recruits Class II
Engineering Officers' Association v State of Maharashtra [1990] 2 SCR 900 [LNIND 1990 SC 293] [LNIND 1990 SC 293]
[LNIND 1990 SC 293].
4 Devilal Modi v Sales Tax Officer, Ratlam AIR 1965 SC 1150 [LNIND 1964 SC 262] [LNIND 1964 SC 262] [LNIND 1964 SC
262], Devilal Modi v Sales Tax Officer, Ratlam (1965) 1 SCJ 579 [LNIND 1964 SC 262] [LNIND 1964 SC 262] [LNIND 1964 SC
262], Devilal Modi v Sales Tax Officer, Ratlam (1965) 16 STC 303 [LNIND 1964 SC 262] [LNIND 1964 SC 262] [LNIND 1964
SC 262].
5 Ie decided under the Constitution of India art 32 (see generally[80]CONSTITUTIONAL LAW ).
6 Raja Jagannath Baksh Singh v State of Uttar Pradesh AIR 1962 SC 1563 [LNIND 1962 SC 145] [LNIND 1962 SC 145]
[LNIND 1962 SC 145], Raja Jagannath Baksh Singh v State of Uttar Pradesh [1963] 1 SCR 220 [LNIND 1962 SC 145] [LNIND
1962 SC 145] [LNIND 1962 SC 145], Raja Jagannath Baksh Singh v State of Uttar Pradesh (1962) 46 ITR 169; PL Lakhanpal
v Union of India AIR 1967 SC 908 [LNIND 1966 SC 197] [LNIND 1966 SC 197] [LNIND 1966 SC 197], PL Lakhanpal v Union of
India [1967] 1 SCR 433 [LNIND 1966 SC 197] [LNIND 1966 SC 197] [LNIND 1966 SC 197], PL Lakhanpal v Union of India
(1967) 2 SCJ 278 (the petitioner challenged his detention in a writ petition but it was dismissed; subsequently, after renewal of
the detention order, he sought to file another petition repeating some of the contentions which he had advanced earlier; the
Court rejected the petition as no new grounds had arisen to challenge detention again); M S M Sharma v Shree Krishna Sinha
395 204
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7 Amalgamated Coalfields Ltd v Janpada Sabha, Chhindwara AIR 1961 SC 964 [LNIND 1961 SC 52] [LNIND 1961 SC 52]
[LNIND 1961 SC 52], Amalgamated Coalfields Ltd v Janpada Sabha, Chhindwara (1961) 1 SCJ 445, Amalgamated Coalfields
Ltd v Janpada Sabha, Chhindwara [1962] 1 SCR 1 [LNIND 1961 SC 52] [LNIND 1961 SC 52] [LNIND 1961 SC 52].
9 Lallubhai Jogibhai Patel v Union of India AIR 1981 SC 728 [LNIND 1980 SC 488] [LNIND 1980 SC 488] [LNIND 1980 SC
488], Lallubhai Jogibhai Patel v Union of India (1981) 2 SCC 427 [LNIND 1980 SC 488] [LNIND 1980 SC 488] [LNIND 1980 SC
488], Lallubhai Jogibhai Patel v Union of India (1981) 2 SCJ 37; Sunil Dutt v Union of India AIR 1982 SC 53, Sunil Dutt v Union
of India (1982) 3 SCC 405, Sunil Dutt v Union of India (1982) SCC (Cr) 62; Kavita v State of Maharashtra AIR 1981 SC 2084,
Kavita v State of Maharashtra (1981) 4 SCC 145, Kavita v State of Maharashtra (1981) Cr LJ 1703; Kirit Kumar Chamanlal
Kundaliya v Union of India AIR 1981 SC 1621 [LNIND 1981 SC 56] [LNIND 1981 SC 56] [LNIND 1981 SC 56], Kirit Kumar
Chamanlal Kundaliya v Union of India (1981) 2 SCC 436, Kirit Kumar Chamanlal Kundaliya v Union of India [1981] 2 SCR 718;
Niranjan Singh v State of Madhya Pradesh AIR 1972 SC 2215 [LNIND 1972 SC 319] [LNIND 1972 SC 319] [LNIND 1972 SC
319], Niranjan Singh v State of Madhya Pradesh (1972) 2 SCC 542 [LNIND 1972 SC 319] [LNIND 1972 SC 319] [LNIND 1972
SC 319], Niranjan Singh v State of Madhya Pradesh [1973] 1 SCR 691 [LNIND 1972 SC 319] [LNIND 1972 SC 319] [LNIND
1972 SC 319]; Ghulam Sarwar v Union of India AIR 1967 SC 1335 [LNIND 1966 SC 326] [LNIND 1966 SC 326] [LNIND 1966
SC 326], Ghulam Sarwar v Union of India [1967] 2 SCR 271 [LNIND 1966 SC 326] [LNIND 1966 SC 326] [LNIND 1966 SC
326], Ghulam Sarwar v Union of India (1967) Cr LJ 1204.
[LNIND 1961 SC 133] [LNIND 1961 SC 133](the Supreme Court dismissed a writ petition moved under the Constitution of India
art 32 because earlier the petitioner had moved in the high court a writ petition under the Constitution of India art 226 on the
same facts and the high court had rejected the same); The Direct Recruits Class II Engineering Officers' Association v State of
Maharashtra AIR 1990 SC 1607 [LNIND 1990 SC 293] [LNIND 1990 SC 293] [LNIND 1990 SC 293], The Direct Recruits Class
II Engineering Officers' Association v State of Maharashtra (1990) 2 SCC 715 [LNIND 1990 SC 293] [LNIND 1990 SC 293]
[LNIND 1990 SC 293], The Direct Recruits Class II Engineering Officers' Association v State of Maharashtra [1990] 2 SCR 900
[LNIND 1990 SC 293] [LNIND 1990 SC 293] [LNIND 1990 SC 293](the binding character of judgments of courts of competent
jurisdiction is in essence a part of the rule of law on which the administration of justice is founded and a judgment of the high
court under the Constitution of India art 226 passed after a hearing on the merits must bind the parties till set aside in appeal as
provided by the Constitution and cannot be permitted to be circumvented by a petition under art 32); Har Swarup v General
Manager, Central Railways AIR 1975 SC 202, Har Swarup v General Manager, Central Railways (1975) 3 SCC 621, Har
Swarup v General Manager, Central Railways (1975) 1 SLR 49(the petitioner filed a writ petition under the Constitution of India
art 226; the high court dismissed the petition and also refused leave to appeal to the Supreme Court; thereafter he filed a writ
petition in the Supreme Court under art 32 claiming exactly the same relief's as he had claimed in the high court and on
identical grounds; in the circumstances, the Supreme Court dismissed the writ petition on the basis of the principle of res
judicata); Gulabchand Chhotalal Parikh v State of Gujarat AIR 1965 SC 1153 [LNIND 1964 SC 351] [LNIND 1964 SC 351]
[LNIND 1964 SC 351], Gulabchand Chhotalal Parikh v State of Gujarat (1965) 2 SCJ 58 [LNIND 1964 SC 351] [LNIND 1964 SC
351] [LNIND 1964 SC 351], Gulabchand Chhotalal Parikh v State of Gujarat (1965) 2 SCA 566 [LNIND 1964 SC 351] [LNIND
1964 SC 351] [LNIND 1964 SC 351].
16 As to alternative remedy see [005.272].
17 As to dismissal in limine see [005.276].
18 Hoshnak Singh v Union of India AIR 1979 SC 1328 [LNIND 1979 SC 156] [LNIND 1979 SC 156] [LNIND 1979 SC 156],
Hoshnak Singh v Union of India (1979) 3 SCC 135 [LNIND 1979 SC 156] [LNIND 1979 SC 156] [LNIND 1979 SC 156],
Hoshnak Singh v Union of India [1979] 3 SCR 398; The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin
Port Trust AIR 1978 SC 1283 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158], The Workmen of Cochin Port
Trust v The Board of Trustees of the Cochin Port Trust (1978) 3 SCC 119 [LNIND 1978 SC 158] [LNIND 1978 SC 158] [LNIND
1978 SC 158], The Workmen of Cochin Port Trust v The Board of Trustees of the Cochin Port Trust (1978) 2 SCJ 518 [LNIND
1978 SC 158] [LNIND 1978 SC 158] [LNIND 1978 SC 158]; Anati Roy Choudhary v Union of India AIR 1974 SC 532 [LNIND
1973 SC 301] [LNIND 1973 SC 301] [LNIND 1973 SC 301], Anati Roy Choudhary v Union of India (1974) 1 SCC 87 [LNIND
1973 SC 301] [LNIND 1973 SC 301] [LNIND 1973 SC 301], Anati Roy Choudhary v Union of India [1974] 2 SCR 1 [LNIND 1973
SC 301] [LNIND 1973 SC 301] [LNIND 1973 SC 301]; Joseph Pothen v State of Kerala AIR 1965 SC 1514 [LNIND 1965 SC
22] [LNIND 1965 SC 22] [LNIND 1965 SC 22], Joseph Pothen v State of Kerala (1966) 1 SCJ 99, Joseph Pothen v State of
Kerala (1965) SCD 893.
19 Ie files a writ petition under the Constitution of India art 32 (see generally[80]CONSTITUTIONAL LAW).
396 205
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20 Ie under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW). Metal Corpn of India v Union of India
AIR 1970 Cal 15 [LNIND 1969 CAL 75] [LNIND 1969 CAL 75] [LNIND 1969 CAL 75], Metal Corpn of India v Union of India 73
Cal WN 676 (a writ petition was moved in the Supreme Court under the Constitution of India art 32 to challenge the validity of
the Metal Corporation of India (Acquisition of Undertaking) Act 1966; the petition was dismissed in limine; after a year and a
half, a writ petition was moved in the High Court of Calcutta under the Constitution of India art 226 but the high court held it
barred by res judicata; although the Supreme Court's order was not a speaking order, the high court took the view that the only
ground on which the Supreme Court could have rejected the petition was the non existence of a fundamental right, the point
which also was raised before it; thus, the principle of res judicata was applied to an art 226 petition after dismissal of an petition
by the Supreme Court art 32).
21 Mohd Aslam v Union of India AIR 1996 SC 1611 [LNINDORD 1996 SC 94] [LNINDORD 1996 SC 94] [LNINDORD 1996 SC
94], Mohd Aslam v Union of India (1996) 2 SCC 749 [LNINDORD 1996 SC 94] [LNINDORD 1996 SC 94] [LNINDORD 1996 SC
94], Mohd Aslam v Union of India (1996) 5 JT 566; Rupa Ashok Hurra v Ashok Hurra AIR 1999 SC 2870, Rupa Ashok Hurra v
Ashok Hurra AIR 1999 SCW 2474, Rupa Ashok Hurra v Ashok Hurra (2002) 4 SCC 388 [LNIND 2002 SC 273] [LNIND 2002 SC
273] [LNIND 2002 SC 273](the Supreme Court rendered a decision and the Court also dismissed a review petition seeking a
review of the decision; thereafter, a writ petition was filed under the Constitution of India art 32 challenging the validity of the
Court's decision; the Court referred the question as to whether a final Court decision can be challenged through a writ petition to
the constitution bench and the Court decided in the negative); P Ashokan v Union of India AIR 1998 SC 1219 [LNIND 1998 SC
1383] [LNIND 1998 SC 1383] [LNIND 1998 SC 1383], P Ashokan v Union of India (1998) 3 SCC 56 [LNIND 1998 SC 1383]
[LNIND 1998 SC 1383] [LNIND 1998 SC 1383], P Ashokan v Union of India (1998) 1 Scale 485 [LNIND 1998 SC 1383] [LNIND
1998 SC 1383] [LNIND 1998 SC 1383].

WRIT JURISDICTION/[005.272] Alternative remedy
[005.272] Alternative remedy The right to move the Supreme Court for enforcement of fundamental rights1
is a fundamental right in itself and thus, the existence of an alternative remedy is no bar to the Supreme
Court entertaining a writ petition. When once the Supreme Court is satisfied that the petitioner's fundamental
right has been infringed, it is not only its right but also its duty to afford relief to the petitioner and he need not
establish that he has no other adequate remedy or that he has exhausted all remedies provided by law.
When the petitioner establishes infringement of his fundamental right, the Court has no discretion but to
issue an appropriate writ in his favour2.
1 Ie the right provided by the Constitution of India art 32 (see generally[80]CONSTITUTIONAL LAW).
[LNIND 1961 SC 133] [LNIND 1961 SC 133]; Kharak Singh v State of Uttar Pradesh AIR 1963 SC 1295 [LNIND 1962 SC 436]
[LNIND 1962 SC 436] [LNIND 1962 SC 436], Kharak Singh v State of Uttar Pradesh [1964] 1 SCR 332 [LNIND 1962 SC 436]
[LNIND 1962 SC 436] [LNIND 1962 SC 436], Kharak Singh v State of Uttar Pradesh (1964) 2 SCJ 107; Kavalappara Kottarathil
Kochunni alias Moopil Nayar v State of Madras AIR 1959 SC 725 [LNIND 1959 SC 27] [LNIND 1959 SC 27] [LNIND 1959 SC
27], Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959) SCJ 858, Kavalappara Kottarathil Kochunni
alias Moopil Nayar v State of Madras (1959) 2 SCA 248.

WRIT JURISDICTION/[005.273] Laches
[005.273] Laches Laches or inordinate delay on the part of the petitioner may disentitle him to move a writ
petition to enforce his fundamental right before the apex court1.
The may refuse relief to the petitioner on the ground of laches because of several considerations, for
instance, it is not desirable to allow stale claims to be canvassed before the Court; that there must be finality
to litigation; that rights which have accrued to others by reason of the delay in filing the petition must not be
397 206
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disturbed, unless there is reasonable explanation for the delay. The aggrieved party must therefore, file the
petition at the earliest possible time2.
However, the rule of laches is not a rule of law. It is a rule of practice based on sound and proper exercise of
discretion and there is no inviolable rule that whenever there is delay, the Court must necessarily refuse to
entertain the petition. Each case must depend on its own facts. The period of limitation prescribed in the
Limitation Act must be used as a guide and not as an absolute rule3.
The Supreme Court may consider a delayed petition if the petitioner is able to give a reasonable explanation
for the delay4. However, relief cannot be given to a petitioner who, without any reasonable explanation,
approaches the apex court after inordinate delay5.
In appropriate cases, the court may, to protect certain strata of people, refuse to reject a writ on grounds of
laches6.
The Court may refuse to entertain a delayed petition if third party rights have been created7.
1 See also [005.232].
2 Tilokchand Motichand v H B Munshi, Comr of Sales Tax, Bombay AIR 1970 SC 898 [LNIND 1968 SC 353] [LNIND 1968 SC
353] [LNIND 1968 SC 353], Tilokchand Motichand v H B Munshi, Comr of Sales Tax, Bombay (1970) 1 SCJ 859, Tilokchand
Motichand v H B Munshi, Comr of Sales Tax, Bombay [1969] 2 SCR 824 [LNIND 1968 SC 353] [LNIND 1968 SC 353] [LNIND
1968 SC 353](the sales tax officer sought to collect tax from petitioner; he filed a writ petition in the high court which failed;
thereupon, he agreed to pay the tax in instalments; in 1967, on some proceedings initiated by some other party, the Supreme
Court struck down the relevant provision in the law as infringing the Constitution of India art 19(1)(f); in 1968, the petitioner
moved the Supreme Court under art 32 praying that the order seeking to recover tax from him be quashed as it had been
issued under an unconstitutional statute; the Supreme Court rejected the petition by a majority on the ground of laches).
3 Ramchandra Shankar Deodhar v State of Maharasthtra AIR 1974 SC 259 [LNIND 1973 SC 329] [LNIND 1973 SC 329]
[LNIND 1973 SC 329], Ramchandra Shankar Deodhar v State of Maharasthtra (1974) 1 SCC 317 [LNIND 1973 SC 329]
[LNIND 1973 SC 329] [LNIND 1973 SC 329], Ramchandra Shankar Deodhar v State of Maharasthtra [1974] 2 SCR 216 [LNIND
1973 SC 329] [LNIND 1973 SC 329] [LNIND 1973 SC 329]. See generally LIMITATION OF ACTIONS[205].
4 Rabindra Nath Bose v Union of India AIR 1970 SC 470 [LNIND 1969 SC 386] [LNIND 1969 SC 386] [LNIND 1969 SC 386],
Rabindra Nath Bose v Union of India (1970) 2 SCR 697 [LNIND 1969 SC 386] [LNIND 1969 SC 386] [LNIND 1969 SC 386],
Rabindra Nath Bose v Union of India (1969) 2 SCA 390(the Court rejected a writ petition filed to challenge the seniority rule
made fifteen years earlier under the Constitution of India arts 14 andarts 16); Ramesh Kumar v Technological Institute of
Textiles, Bhiwani AIR 1981 SC 1200, Ramesh Kumar v Technological Institute of Textiles, Bhiwani (1981) 2 SCC 263, Ramesh
Kumar v Technological Institute of Textiles, Bhiwani (1981) UJ 135 (the writ jurisdiction was invoked within two months of the
impugned admission to an institute, the Court held the time gap to be reasonable).
5 RS Makashi v IM Menon AIR 1982 SC 101 [LNIND 1981 SC 453] [LNIND 1981 SC 453] [LNIND 1981 SC 453], RS Makashi
v IM Menon (1982) 1 SCC 379 [LNIND 1981 SC 453] [LNIND 1981 SC 453] [LNIND 1981 SC 453], RS Makashi v IM Menon
(1982) Lab IC 38 [LNIND 1981 SC 453] [LNIND 1981 SC 453] [LNIND 1981 SC 453]; SS Moghe v Union of India AIR 1981 SC
1495 [LNIND 1981 SC 283] [LNIND 1981 SC 283] [LNIND 1981 SC 283], SS Moghe v Union of India (1981) 3 SCC 271 [LNIND
1981 SC 283] [LNIND 1981 SC 283] [LNIND 1981 SC 283], SS Moghe v Union of India (1981) SCC (Lab) 490 (promotions in
government service were challenged on the ground of infringement of a fundamental right; no explanation was given for delay
of several years in filing the writ petition; rejecting the petition, the Court said that a party must be diligent in enforcing his
fundamental right and he must approach the Court within a reasonable time after the cause of action had arisen; if there has
been an undue delay or laches on his part, the Court has discretion to deny him relief); Roshan Lal v International Airport
Authority of India AIR 1981 SC 597 [LNIND 1980 SC 447] [LNIND 1980 SC 447] [LNIND 1980 SC 447], Roshan Lal v
International Airport Authority of India (1980) Supp SCC 449, Roshan Lal v International Airport Authority of India (1980) 3 SLR
587 (the Supreme Court rejected a writ petition presented in 1978 challenging certain appointments made in 1975; the Court
thought that it would not be justified in re opening the question of the legality of the appointments after several years).
6 GP Doval v Chief Secretary, Govt of Uttar Pradesh AIR 1984 SC 1527 [LNIND 1984 SC 175] [LNIND 1984 SC 175] [LNIND
1984 SC 175], GP Doval v Chief Secretary, Govt of Uttar Pradesh (1984) 4 SCC 329 [LNIND 1984 SC 175] [LNIND 1984 SC
175] [LNIND 1984 SC 175], GP Doval v Chief Secretary, Govt of Uttar Pradesh (1984) Lab IC 1304(a provisional seniority list
prepared in March 1971 was challenged in 1983 through a writ petition filed under the Constitution of India art 32; many
promotions had been made during the intervening period; the Supreme Court refused to dismiss the writ petition on the ground
of laches arguing that the impugned list was merely provisional and that the Government neither considered nor replied to the
many representations made by the petitioners; also, that the petitioners belonging to the lower echelons of service might have
found it difficult to move the Court earlier); Purshottam Lal v Union of India AIR 1973 SC 1088 [LNIND 1973 SC 45] [LNIND
1973 SC 45] [LNIND 1973 SC 45], Purshottam Lal v Union of India (1973) 1 SCC 651 [LNIND 1973 SC 45] [LNIND 1973 SC
398 207
Page
45] [LNIND 1973 SC 45], Purshottam Lal v Union of India (1973) 1 Lab LJ 407.
7 Amrit Lal Berry v Collector of Central Excise, Central Revenue AIR 1975 SC 538 [LNIND 1974 SC 404] [LNIND 1974 SC
404] [LNIND 1974 SC 404], Amrit Lal Berry v Collector of Central Excise, Central Revenue (1975) SCC (Lab) 412, Amrit Lal
Berry v Collector of Central Excise, Central Revenue (1975) Lab IC 363.

WRIT JURISDICTION/[005.274] Questions of fact
[005.274] Questions of fact Ordinarily, the Supreme Court does not go into questions of fact in a writ
petition. The reason for this judicial stance is that disputed questions of fact can be decided properly by
examining the pleadings raised by the parties and by taking evidence and such a course is not possible in
summary proceedings like that of a writ petition before the apex court1.
However, the Court has the power to decide disputed questions of fact arising in a writ petition if it so
desires2. Despite this discretion, the court may not simply decline to entertain the petition on the ground that
it involves determination of disputed questions of fact or on any other ground, it must do so judiciously. The
Court has to act as the custodian and protector of the fundamental rights at all times3.
1 G S Sodhi v Union of India; AIR 1991 SC 1617, G S Sodhi v Union of India; (1991) 2 SCC 567, G S Sodhi v Union of India;
[1991] 2 SCR 812 [LNIND 1991 SC 280] [LNIND 1991 SC 280] [LNIND 1991 SC 280]; Daljit Singh Dalal v Union of India AIR
1997 SC 1367 [LNIND 1997 SC 413] [LNIND 1997 SC 413] [LNIND 1997 SC 413], Daljit Singh Dalal v Union of India (1997) 1
SCJ 605, Daljit Singh Dalal v Union of India (1997) 4 SCC 62 [LNIND 1997 SC 413] [LNIND 1997 SC 413] [LNIND 1997 SC
413].
2 KB Handicrafts Emporium v State of Haryana AIR 1994 SC 1697 [LNIND 1993 SC 407] [LNIND 1993 SC 407] [LNIND 1993
SC 407], 1699, KB Handicrafts Emporium v State of Haryana (1994) 2 SCC 526; Sumedha Nagpal v State of Delhi (2000) 9
SCC 745; Laxmi Shankar Pandey v Union of India AIR 1991 SC 1070 [LNIND 1991 SC 163] [LNIND 1991 SC 163] [LNIND
1991 SC 163], Laxmi Shankar Pandey v Union of India (1991) 2 SCC 488 [LNIND 1991 SC 163] [LNIND 1991 SC 163] [LNIND
1991 SC 163], Laxmi Shankar Pandey v Union of India (1991) 2 JT 43.
Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959) 2 SCA 248.

WRIT JURISDICTION/[005.275] Judicial and quasi-judicial bodies
[005.275] Judicial and quasi-judicial bodies Where no breach of fundamental rights is involved, it must be
corrected by way of an appeal and not a writ1. However, the writ jurisdiction of the Supreme Court can be
invoked if a fundamental right is violated:
(1) by a quasi judicial authority acting under an ultra vires law2; or

(2) when the quasi judicial authority seeks to act without jurisdiction or if it wrongly assumes
jurisdiction by committing an error on a collateral fact3 or the statute is intra vires4; or
(3) where the action taken is procedurally ultra vires, for example, when principles of natural
justice are infringed5.
A wrong application of the law would not amount to a violation of fundamental rights. If the provisions of the
law are valid and the orders passed are within the jurisdiction of the authority concerned, there is no
399 208
Page
infraction of any fundamental right whether the authority was right or wrong on facts. An erroneous decision
does not violate fundamental rights6.
Before issuing a writ, the court must investigate whether the authority against whom the order is to be made
is quasi judicial or administrative7.
A writ petition cannot be moved in the Supreme Court to quash a judicial order passed by a court earlier8.
1 Ujjam Bai v State of Uttar Pradesh AIR 1962 SC 1621 [LNIND 1962 SC 584] [LNIND 1962 SC 584] [LNIND 1962 SC 584],
Ujjam Bai v State of Uttar Pradesh [1963] 1 SCR 778 [LNIND 1961 SC 222] [LNIND 1961 SC 222] [LNIND 1961 SC 222], Ujjam
Bai v State of Uttar Pradesh (1963) 1 SCA 1(an assessment of sales tax by a quasi judicial authority, acting within its
jurisdiction and under an intra vires law, could not be challenged under the Constitution of India art 32 on the ground that it has
misconstrued or misinterpreted the law, because no breach of any fundamental right was involved in such a situation); J
Fernandez Co v Deputy Chief Controller of Imports and Exports AIR 1975 SC 1208 [LNIND 1975 SC 104] [LNIND 1975 SC
104] [LNIND 1975 SC 104], J Fernandez Co v Deputy Chief Controller of Imports and Exports (1975) 1 SCC 716 [LNIND 1975
SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104], J Fernandez Co v Deputy Chief Controller of Imports and Exports [1975]
3 SCR 867 [LNIND 1975 SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104]; Coffee Board, Bangalore v Joint Commercial
Tax Officer, Madras AIR 1971 SC 870 [LNIND 1969 SC 444] [LNIND 1969 SC 444] [LNIND 1969 SC 444], Coffee Board,
Bangalore v Joint Commercial Tax Officer, Madras [1970] 3 SCR 147 [LNIND 1969 SC 444] [LNIND 1969 SC 444] [LNIND
1969 SC 444], Coffee Board, Bangalore v Joint Commercial Tax Officer, Madras (1971) 1 SCJ 14 [LNIND 1969 SC 444]
[LNIND 1969 SC 444] [LNIND 1969 SC 444].
2 Firm ATB Mehtab Majid & Co v State of Madras AIR 1963 SC 928 [LNIND 1962 SC 162] [LNIND 1962 SC 162] [LNIND 1962
SC 162], Firm ATB Mehtab Majid & Co v State of Madras [1963] Supp 2 SCR 435, Firm ATB Mehtab Majid & Co v State of
Madras (1964) 1 SCJ 355; State Trading Corporation v State of Mysore AIR 1963 SC 558, State Trading Corporation v State of
Mysore [1963] 3 SCR 792 [LNIND 1962 SC 281] [LNIND 1962 SC 281] [LNIND 1962 SC 281], State Trading Corporation v
State of Mysore (1963) 14 STC 188. See contra Pioneer Traders v Chief Controller of Imports and Exports AIR 1963 SC 734
[LNIND 1962 SC 319] [LNIND 1962 SC 319] [LNIND 1962 SC 319](the petitioner challenged the collector's order under the
Constitution of India art 32 alleging infringement of art 19(1)(g) on the ground that the collector was acting without jurisdiction;
rejecting the petition, the Supreme Court held that in seizing the consignments, the collector was acting within jurisdiction and
was discharging a quasi judicial function; although he might either be taking a wrong view of the facts or misconstruing the
statutory order in question, yet in none of these situations could the Court interfere under the Constitution of India art 32)
3 Coffee Board, Bangalore v Joint Commercial Tax Officer, Madras AIR 1971 SC 870 [LNIND 1969 SC 444] [LNIND 1969 SC
444] [LNIND 1969 SC 444], Coffee Board, Bangalore v Joint Commercial Tax Officer, Madras [1970] 3 SCR 147 [LNIND 1969
SC 444] [LNIND 1969 SC 444] [LNIND 1969 SC 444], Coffee Board, Bangalore v Joint Commercial Tax Officer, Madras (1971)
1 SCJ 14 [LNIND 1969 SC 444] [LNIND 1969 SC 444] [LNIND 1969 SC 444](a petitioner has a right to move a writ petition
under the Constitution of India art 32 to challenge a quasi judicial decision where the action is proposed to be taken under an
ultra vires statute or where the action is taken without jurisdiction or without following natural justice).
4 State Trading Corporation v State of Mysore AIR 1963 SC 558, State Trading Corporation v State of Mysore [1963] 3 SCR
792 [LNIND 1962 SC 281] [LNIND 1962 SC 281] [LNIND 1962 SC 281], State Trading Corporation v State of Mysore (1963) 14
STC 188.
5 Coffee Board, Bangalore v Joint Commercial Tax Officer, Madras AIR 1971 SC 870 [LNIND 1969 SC 444] [LNIND 1969 SC
444] [LNIND 1969 SC 444], Coffee Board, Bangalore v Joint Commercial Tax Officer, Madras [1970] 3 SCR 147 [LNIND 1969
SC 444] [LNIND 1969 SC 444] [LNIND 1969 SC 444], Coffee Board, Bangalore v Joint Commercial Tax Officer, Madras (1971)
1 SCJ 14 [LNIND 1969 SC 444] [LNIND 1969 SC 444] [LNIND 1969 SC 444].
6 J Fernandez Co v Deputy Chief Controller of Imports and Exports AIR 1975 SC 1208 [LNIND 1975 SC 104] [LNIND 1975 SC
104] [LNIND 1975 SC 104], J Fernandez Co v Deputy Chief Controller of Imports and Exports (1975) 1 SCC 716 [LNIND 1975
SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104], J Fernandez Co v Deputy Chief Controller of Imports and Exports [1975]
3 SCR 867 [LNIND 1975 SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104](a writ petition was moved in the Supreme Court
under the Constitution of India art 32 on the ground that the licensing authority misapplied the Imports and Exports (Control) Act
1950; the Court dismissed the same on the ground that a petition under art 32 is not competent to challenge any erroneous
decision of an authority).
7 Gulam Abbas v State of Uttar Pradesh AIR 1981 SC 2198 [LNIND 1981 SC 425] [LNIND 1981 SC 425] [LNIND 1981 SC
425](an order under Code of Criminal Procedure 1973 s 144 is made by a magistrate after hearing the concerned parties; a
question arose whether such an order is to be characterised as judicial or executive in nature as no writ could be issued if the
order in question were to be characterised as quasi judicial; the Court characterised such an order as an executive order as the
Code of Criminal Procedure s 144, deals with urgent cases of nuisance and apprehended danger to public tranquillity and the
power under s 144 has been conferred on an executive magistrate; therefore, an order passed under s 144 cannot be regarded
as a judicial or quasi judicial order).
8 Ajit Kumar Barat v Secretary, Indian Tea Association AIR 2001 SC 2056, Ajit Kumar Barat v Secretary, Indian Tea
Association (2001) 5 SCC 42, Ajit Kumar Barat v Secretary, Indian Tea Association (2001) 1 JT Supp 241.
400 209
Page

ADMINISTRATIVE LAW/20. WRIT JURISDICTION OF SUPREME COURT/(4) POWERS OF THE
SUPREME COURT/[005.276] Discretionary relief
[005.276] Discretionary relief The Supreme Court is authorised to issue orders, directions or writs,
including writs, in the nature of mandamus1, certiorari2, prohibition3, quo warranto4 and habeas corpus5 as
relief under its writ jurisdiction6. Thus, the Court may issue not only the specified writs7 but also any order or
give any directions as it may consider appropriate in the circumstances of the case, to give proper relief to
the petitioner. Apart from this, the Court may grant declaration or injunction as well if that be the proper
relief8.
The appropriate remedy to be given to a petitioner for the enforcement of his fundamental right is a matter for
the Supreme Court to decide. The writ jurisdiction of the Court is very wide and thus, while conceding a
petition for the enforcement of any of the fundamental rights, the Court may declare an Act to be ultra vires
or beyond the competence of the legislature9.
The Court has discretion in the matter of framing writs to suit the exigencies of particular cases. A petition
may not be thrown out merely because he has not prayed for a proper writ or direction. It is free to devise
any procedure appropriate for the particular purpose of the proceeding.
It has an implicit power to issue whatever direction, order or writ is necessary in a given case, including all
incidental or ancillary power necessary to secure enforcement of the fundamental right10.
8 P J Irani v State of Madras AIR 1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192], P J Irani v
State of Madras [1962] 2 SCR 169 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192], P J Irani v State of
Madras (1962) 1 SCJ 194 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192]; Kavalappara Kottarathil
Kochunni alias Moopil Nayar v State of Madras AIR 1959 SC 725 [LNIND 1959 SC 27] [LNIND 1959 SC 27] [LNIND 1959 SC
27], Kavalappara Kottarathil Kochunni alias Moopil Nayar v State of Madras (1959) SCJ 858, Kavalappara Kottarathil Kochunni
alias Moopil Nayar v State of Madras (1959) 2 SCA 248. As to the meaning of an injunction see injunctions [170.002]. As to the
meaning of a declaration see [005.345]-[005.348]. As to when declarations may or may not be granted see injunctions
[170.029] and following.
9 Bodhisattwa Gautam v Subhra Chakraborty AIR 1996 SC 922 [LNIND 1995 SC 1314] [LNIND 1995 SC 1314] [LNIND 1995
SC 1314], 926, Bodhisattwa Gautam v Subhra Chakraborty (1996) 1 SCJ 338, Bodhisattwa Gautam v Subhra Chakraborty
(1996) 2 BLJR 1533 [LNIND 1995 SC 1314] [LNIND 1995 SC 1314] [LNIND 1995 SC 1314].
10 MC Mehta v Union of India AIR 1987 SC 1086 [LNIND 1986 SC 539] [LNIND 1986 SC 539] [LNIND 1986 SC 539], MC
Mehta v Union of India (1987) 1 SCC 395 [LNIND 1986 SC 539] [LNIND 1986 SC 539] [LNIND 1986 SC 539], MC Mehta v
401 210
Page

SUPREME COURT/[005.277] Award of damages
[005.277] Award of damages The Supreme Court may award damages to the aggrieved party when a
fundamental right of a person has been infringed and there is no other suitable remedy available to give
relief1. The power of the Court in regard to preventing the infringement of a fundamental right is injunctive as
well as remedial in scope. Therefore, the Court cannot only inject violation of fundamental right but also give
relief when the right has already been violated2.
The power of the apex court to award compensation for violation of fundamental rights is a major contribution
made by the Supreme Court towards the protection of such rights against undue interference by
administrative authorities, as situations may arise when only compensation could provide some relief to the
affected person3. Compensation may be awarded on account of brutalities, harassment or atrocities by the
authorities4.
The contention that the victim must have approached the civil court for damages and the matter must not
have been considered in a writ petition may not be accepted by the Court as where public functionaries are
involved and the matter relates to the violation of the fundamental rights or the enforcement of public duties,
the remedy would still be available under the public law notwithstanding that a suit could be filed for
damages under private law5.
The Supreme Court may grant damages in matters of6:
(1) personal injuries being suffered by the petitioner at the hands of government servants by their
tortious acts7;
(2) police atrocities8;
(3) custodial deaths9;
(4) medical negligence10; and
(5) environmental pollution11.
1 Common Cause, a Registered Society v Union of Indian AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND 1999 SC 637]
[LNIND 1999 SC 637], Common Cause, a Registered Society v Union of Indian (1999) 6 SCC 667 [LNIND 1999 SC 637]
[LNIND 1999 SC 637] [LNIND 1999 SC 637], Common Cause, a Registered Society v Union of Indian (1999) 5 JT 237.
2 MC Mehta v Union of India AIR 1987 SC 1086 [LNIND 1986 SC 539] [LNIND 1986 SC 539] [LNIND 1986 SC 539], MC
Union of India (1987) JT 1. As to damages in writ jurisdiction see damages [115.299].
3 Rudul Sah v State of Bihar AIR 1983 SC 1086 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND 1983 SC 181], Rudul
Sah v State of Bihar (1983) 4 SCC 141 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND 1983 SC 181], Rudul Sah v State
of Bihar [1983] 3 SCR 508 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND 1983 SC 181](in a writ petition for habeas
corpus, the Court awarded damages to the petitioner against the state for breach of his right of personal liberty guaranteed by
the Constitution of India art 21, as he was kept in jail for 14 years even after his acquittal by a criminal court; the Court felt that
not awarding damages in the instant case would amount to doing a mere lip service to the concerned fundamental right, which
the state government had violated).
4 Chairman, Railway Board v Chandrima Das AIR 2000 SC 988 [LNIND 2000 SC 182] [LNIND 2000 SC 182] [LNIND 2000 SC
182], Chairman, Railway Board v Chandrima Das (2000) 2 SCC 465 [LNIND 2000 SC 182] [LNIND 2000 SC 182] [LNIND 2000
SC 182], Chairman, Railway Board v Chandrima Das (2000) 3 SCJ 1(a Bangladeshi woman was gang raped by some railway
employees in the railway premises at the Howrah Railway Station; a practising lawyer filed a writ petition in the high court under
the Constitution of India art 226 as public interest litigation; the high court awarded damages to the victim against the Railways;
on appeal, the Supreme Court upheld the high court decision; it was held to be a violation of the rights of the victim under art 21
which was available not only to citizens but also to non citizens); Consumer Education and Reservation Centre v Union of India
(1995) 3 SCC 42 [LNIND 1995 SC 166] [LNIND 1995 SC 166] [LNIND 1995 SC 166], Consumer Education and Reservation
Centre v Union of India (1995) Lab IC 1368 (the defence of sovereign immunity is inapplicable and alien to the concept of
guarantee of fundamental rights); D K Basu v State of West Bengal AIR 1997 SC 610 [LNIND 1996 SC 2177] [LNIND 1996 SC
2177] [LNIND 1996 SC 2177], D K Basu v State of West Bengal (1997) SCC (Cr) 92, D K Basu v State of West Bengal (1997) 1
402 211
Page
JT 1; Nilabati Behera Alias Lalita Behera v State of Orissa AIR 1993 SC 1960 [LNIND 1993 SC 1167] [LNIND 1993 SC 1167]
[LNIND 1993 SC 1167], Nilabati Behera Alias Lalita Behera v State of Orissa (1993) 2 SCC 746 [LNIND 1993 SC 1167] [LNIND
1993 SC 1167] [LNIND 1993 SC 1167], Nilabati Behera Alias Lalita Behera v State of Orissa (1993) 2 SCJ 487; Sebastian M
Hongrey v Union of India AIR 1984 SC 571 [LNIND 1983 SC 352] [LNIND 1983 SC 352] [LNIND 1983 SC 352], Sebastian M
Hongrey v Union of India (1984) 3 SCC 339 [LNIND 1984 SC 57] [LNIND 1984 SC 57] [LNIND 1984 SC 57], Sebastian M
Hongrey v Union of India (1984) SCC (Cr) 87.
5 Chairman, Railway Board v Chandrima Das AIR 2000 SC 988 [LNIND 2000 SC 182] [LNIND 2000 SC 182] [LNIND 2000 SC
182], Chairman, Railway Board v Chandrima Das (2000) 2 SCC 465 [LNIND 2000 SC 182] [LNIND 2000 SC 182] [LNIND 2000
SC 182], Chairman, Railway Board v Chandrima Das (2000) 3 SCJ 1.
6 See also tortious liability [005.316] and following.
7 Arvinder Singh Bagga v State of Uttar Pradesh AIR 1995 SC 117 [LNIND 1994 SC 952] [LNIND 1994 SC 952] [LNIND 1994
SC 952], Arvinder Singh Bagga v State of Uttar Pradesh (1994) Supp 1 SCC 500; People's Union for Democratic Rights v
State of Bihar AIR 1987 SC 355 [LNIND 1986 SC 531] [LNIND 1986 SC 531] [LNIND 1986 SC 531], People's Union for
Democratic Rights v State of Bihar (1987) 1 SCC 265 [LNIND 1986 SC 531] [LNIND 1986 SC 531] [LNIND 1986 SC 531],
People's Union for Democratic Rights v State of Bihar (1987) JT 18; Bhim Singh, MLA v State of Jammu & Kashmir AIR 1986
SC 494 [LNIND 1985 SC 350] [LNIND 1985 SC 350] [LNIND 1985 SC 350], Bhim Singh, MLA v State of Jammu & Kashmir
(1985) 4 SCC 677 [LNIND 1985 SC 350] [LNIND 1985 SC 350] [LNIND 1985 SC 350], Bhim Singh, MLA v State of Jammu &
Kashmir (1986) UJ 458; Rudul Sah v State of Bihar AIR 1983 SC 1086 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND
1983 SC 181], Rudul Sah v State of Bihar (1983) 4 SCC 141 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND 1983 SC
181], Rudul Sah v State of Bihar [1983] 3 SCR 508 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND 1983 SC 181].
8 D K Basu v State of West Bengal AIR 1997 SC 610 [LNIND 1996 SC 2177] [LNIND 1996 SC 2177] [LNIND 1996 SC 2177],
D K Basu v State of West Bengal (1997) SCC (Cr) 92, D K Basu v State of West Bengal (1997) 1 JT 1.
9 Ajab Singh v State of Uttar Pradesh (2000) 3 SCC 521 [LNIND 2000 SC 2011] [LNIND 2000 SC 2011] [LNIND 2000 SC
2011]; People's Union for Civil Liberties v Union of India AIR 1997 SC 1203 [LNIND 2003 SC 1103] [LNIND 2003 SC 1103]
[LNIND 2003 SC 1103], People's Union for Civil Liberties v Union of India (1997) 3 SCC 433 [LNIND 2003 SC 1103] [LNIND
2003 SC 1103] [LNIND 2003 SC 1103], People's Union for Civil Liberties v Union of India (1997) 1 SCJ 480; Nilabati Behera
Alias Lalita Behera v State of Orissa AIR 1993 SC 1960 [LNIND 1993 SC 1167] [LNIND 1993 SC 1167] [LNIND 1993 SC 1167],
Nilabati Behera Alias Lalita Behera v State of Orissa (1993) 2 SCC 746 [LNIND 1993 SC 1167] [LNIND 1993 SC 1167] [LNIND
1993 SC 1167], Nilabati Behera Alias Lalita Behera v State of Orissa (1993) 2 SCJ 487.
10 Paschim Banga Khet Mazdoor Samity v State of West Bengal AIR 1996 SC 2426 [LNIND 1996 SC 914] [LNIND 1996 SC
914] [LNIND 1996 SC 914], Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 4 SCC 37 [LNIND 1996 SC
914] [LNIND 1996 SC 914] [LNIND 1996 SC 914], Paschim Banga Khet Mazdoor Samity v State of West Bengal (1996) 3 SCJ
25.
11 MC Mehta v Kamal Nath AIR 2000 SC 1997 [LNIND 2000 SC 893] [LNIND 2000 SC 893] [LNIND 2000 SC 893], MC Mehta
v Kamal Nath AIR 2000 SCW 1854, MC Mehta v Kamal Nath (2000) 6 SCC 213 [LNIND 2000 SC 893] [LNIND 2000 SC 893]
[LNIND 2000 SC 893](pollution, being a civil wrong against the community as a whole, the Supreme Court has power to award
damages in a writ petition under the Constitution of India art 32, against a person causing pollution; the damages may fall under
the following heads (1) damages for restoration of the environment and ecology; (2) damages to those who may have suffered
loss on account of the act of pollution; and (3) exemplary damages so that other people are deterred from causing
environmental pollution); Indian Council for Enviro Legal Action v Union of India AIR 1996 SC 1446 [LNIND 1996 SC 353]
[LNIND 1996 SC 353] [LNIND 1996 SC 353], Indian Council for Enviro Legal Action v Union of India (1996) 3 SCC 212 [LNIND
1996 SC 353] [LNIND 1996 SC 353] [LNIND 1996 SC 353], Indian Council for Enviro Legal Action v Union of India (1996) 2 JT
196; Vellore Citizens Welfare Forum v Union of India AIR 1996 SC 2715 [LNIND 1996 SC 1344] [LNIND 1996 SC 1344]
[LNIND 1996 SC 1344], Vellore Citizens Welfare Forum v Union of India (1996) 5 SCC 647 [LNIND 1996 SC 1344] [LNIND
1996 SC 1344] [LNIND 1996 SC 1344], Vellore Citizens Welfare Forum v Union of India (1996) 7 JT 375. As to damages in writ
jurisdiction see damages [115.299].

SUPREME COURT/[005.278] Power to issue general directions
[005.278] Power to issue general directions The Supreme Court utilises its writ jurisdiction for a wider
purpose than only to protect and remedy infringement of fundamental rights, for instance, to lay down
general guidelines having the effect of law with a view to fill the vacuum till the time the legislature steps in by
making the necessary legal provisions1. All authorities, civil and judicial are required to act in the aid of the
Courts' directions2. These directions remain in force till the legislature enacts a suitable law and breach of
403 212
Page
these directions amounts to contempt of court3.
It is basically the duty of the executive to fill the vacuum by executive orders because its field is
conterminous with that of the legislature. Where even the executive does not act, the judiciary must step in,
in exercise of its constitutional obligation to provide a solution till the legislature performs its role by enacting
a proper legislation to cover the field4.
1 See the Constitution of India arts 141, 142 and 32 (see generally[80]CONSTITUTIONAL LAW).
3 The Supreme Court under the Constitution of India art 129 and the high courts under the Constitution of India art 215 have
power to punish for their contempt: see the Constitution of India arts 129 andarts 215 (see generally[80]CONSTITUTIONAL
LAW).
4 The Court has issued general guidelines and directions in quite a few cases. Some of these cases are:
(1) Lakshmi Kant Pandey v Union of India AIR 1984 SC 469 [LNIND 1984 SC 30] [LNIND 1984 SC 30] [LNIND
1984 SC 30], Lakshmi Kant Pandey v Union of India (1984) 2 SCC 244 [LNIND 1984 SC 30] [LNIND 1984 SC
30] [LNIND 1984 SC 30], Lakshmi Kant Pandey v Union of India [1984] 2 SCR 795 [LNIND 1984 SC 30]
[LNIND 1984 SC 30] [LNIND 1984 SC 30] (where guidelines for adoption of minor children by foreigners were
laid down).
(2) Supreme Court Advocates-on-Record Association v Union of India AIR 1994 SC 268, Supreme Court
Advocates-on-Record Association v Union of India (1993) 4 SCC 441, Supreme Court Advocates-on-Record
Association v Union of India (1994) 1 SCJ 348 (where the Supreme Court laid down guidelines and norms for
the appointment and transfer of high court judges).
(3) Vishakha v State of Rajasthan AIR 1997 SC 3011 [LNIND 1997 SC 1081] [LNIND 1997 SC 1081] [LNIND
1997 SC 1081], Vishakha v State of Rajasthan AIR 1997 SCW 3043, Vishakha v State of Rajasthan (1996) 6
SCC 241 [LNIND 1996 SC 1338] [LNIND 1996 SC 1338] [LNIND 1996 SC 1338] (where elaborate guidelines
have been laid down to discourage sexual harassment of women in work places).
(4) Vineet Narain v Union of India AIR 1998 SC 889 [LNIND 1997 SC 1657] [LNIND 1997 SC 1657] [LNIND 1997
SC 1657], Vineet Narain v Union of India (1998) 1 SCC 226 [LNIND 1997 SC 1657] [LNIND 1997 SC 1657]
[LNIND 1997 SC 1657], Vineet Narain v Union of India (1998) 2 SCJ 322(where the Court has laid down
directions to ensure the independence of the Vigilance Commission and to reduce corruption among
government servants; this has been done to implement the rule of law wherein the concept of equality
enshrined in the Constitution of India art 14 is embedded).
(5) Vishwa Jagriti Mission v Central Governmenti (2001) 6 SCC 577 [LNIND 2001 SC 2950] [LNIND 2001 SC
2950] [LNIND 2001 SC 2950] (the Supreme Court has issued directions to curb the practice of ragging in
educational institutions).
Some other cases where the court has laid down general guidelines having the force of law are: Dinesh Trivedi, MP v Union of India
(1997) 4 SCC 306 [LNIND 1997 SC 1947] [LNIND 1997 SC 1947] [LNIND 1997 SC 1947]; Delhi Development Authority v Skipper
Construction Co (Pvt) Ltd AIR 1996 SC 2005 [LNIND 1996 SC 1101] [LNIND 1996 SC 1101] [LNIND 1996 SC 1101], Delhi
Development Authority v Skipper Construction Co (Pvt) Ltd (1996) 4 SCC 622 [LNIND 1996 SC 1101] [LNIND 1996 SC 1101] [LNIND
1996 SC 1101]; State of West Bengal v Sampat Lal AIR 1985 SC 195 [LNIND 1984 SC 332] [LNIND 1984 SC 332] [LNIND 1984 SC
332], State of West Bengal v Sampat Lal (1985) 1 SCC 317, State of West Bengal v Sampat Lal (1985) 1 SCWR 182; Union Carbide
Corporation v Union of India AIR 1992 SC 248, Union Carbide Corporation v Union of India (1991) 4 SCC 584, Union Carbide
Corporation v Union of India [1991] Supp 1 SCR 251; K Veeraswami v Union of India (1991) 3 SCC 655 [LNIND 1991 SC 320] [LNIND
1991 SC 320] [LNIND 1991 SC 320], K Veeraswami v Union of India [1991] 3 SCR 189, K Veeraswami v Union of India (1991) Cr LR
677.
404
Page 1

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(1) HABEAS CORPUS/[005.279] Generally
[005.279] Generally The writ of habeas corpus is used primarily to secure release of a person who has been
detained unlawfully or without any legal justification. It enables an immediate determination of a person's
right to freedom1.
Traditionally, habeas corpus is regarded as a bulwark against illegal and arbitrary detention. Detention may
be unlawful if:
(1) it is not in accordance with law; or

(2) the procedure established by law has not been strictly followed in detaining a person; or
(3) there is no valid law or authority for detaining a person; or
(4) the law is invalid because it infringes a fundamental right; or
(5) the Legislature enacting the law has exceeded its limits2.
Detention must not contravene the protection guaranteed against arbitrary arrest and detention3. The power
of detention vested in an authority, if exceeded, abused or exercised mala fide makes the detention
unlawful4.
1 Ranjit Singh v State of Pepsu AIR 1959 SC 843 [LNIND 1959 SC 63] [LNIND 1959 SC 63] [LNIND 1959 SC 63], Ranjit Singh
v State of Pepsu (1959) SCJ 905 [LNIND 1959 SC 63] [LNIND 1959 SC 63] [LNIND 1959 SC 63], Ranjit Singh v State of Pepsu
(1959) 2 SCA 552 [LNIND 1959 SC 63] [LNIND 1959 SC 63] [LNIND 1959 SC 63].
2 State of Bihar v Kameshwar Prasad Verma AIR 1965 SC 575, State of Bihar v Kameshwar Prasad Verma [1963] 2 SCR 183,
State of Bihar v Kameshwar Prasad Verma (1963) 2 SCJ 89; Makhan Singh Tarsikka v State of Punajb AIR 1952 SC 27
[LNIND 1951 SC 68] [LNIND 1951 SC 68] [LNIND 1951 SC 68], Makhan Singh Tarsikka v State of Punajb [1952] SCR 368
[LNIND 1951 SC 68] [LNIND 1951 SC 68] [LNIND 1951 SC 68], Makhan Singh Tarsikka v State of Punajb (1951) SCJ 835
4 GS adanandan v State of Kerala AIR 1966 SC 1925 [LNIND 1966 SC 52] [LNIND 1966 SC 52] [LNIND 1966 SC 52], GS
adanandan v State of Kerala (1966) 2 SCJ 725, GS adanandan v State of Kerala (1966) 2 SCA 1; Ram Manohar Lohia v State
of Bihar AIR 1966 SC 740 [LNIND 1965 SC 215] [LNIND 1965 SC 215] [LNIND 1965 SC 215], Ram Manohar Lohia v State of
Bihar [1966] 1 SCR 709 [LNIND 1965 SC 215] [LNIND 1965 SC 215] [LNIND 1965 SC 215], Ram Manohar Lohia v State of
Bihar (1966) 2 SCJ 549. Order not in terms of the Rule and is illegal.

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(1) HABEAS CORPUS/[005.280] Writ, when may be issued
[005.280] Writ, when may be issued While entertaining the writ of habeas corpus, the court must consider
whether a prima facie case for the issue of the writ has been made out and then issue a rule nisi calling upon
the authority concerned to show cause why the writ must not be issued. Habeas Corpus is issued setting the
prisoner free if the cause shown is considered by the court to be insufficient. The writ will not be issued if the
prisoner is not under unlawful restraint for instance, when he is undergoing a sentence of imprisonment on a
criminal charge pronounced by a court of competent jurisdiction1. Similarly, habeas corpus is not granted
when a person has been committed to custody under an order from a competent court, when the order does
not appear to be without jurisdiction or wholly illegal2.
While dealing with a petition for a writ of habeas corpus, the court may examine the legality of the detention
without requiring the person detained to be produced before it3. The legality of detention of a person may be
examined on a habeas corpus petition with reference to:
405
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(1) the earliest date on which the application for the same is made to the court4; or
(2) the time of the return and not with reference to the institution of the proceedings5 or
(3) the date of hearing6.
The court may refuse to go into the validity of detention before the date of petition7. The writ is issued to the
authority having the custody of the aggrieved person. It may be prayed for by the prisoner himself or if he is
unable to do so, by someone else on his behalf8.
Whenever a petition for the writ of habeas corpus comes before the Court, it issues the writ almost invariably
calling upon the detaining authority to justify the detention. It is incumbent on the detaining authority to satisfy
the court that the detention of the petitioner is legal and in conformity with the mandatory provisions of the
law authorising such detentions9. The court may quash the order of detention if it is not in conformity with the
law10. The detaining authority is required not only to meet the specific grounds on which the petitioner
challenges his detention, it is also under an obligation to show that the detention in question is in accordance
with the procedure established by law11.
Normally, the court does not issue an ex parte writ, unless the urgency of the situation so demands or when
defeat of justice is a likelihood12.
The writ would be issued, making it obligatory on the detaining authority to file a return and even to produce
the concerned person before it, where the court is satisfied that the person was in illegal detention, though
the detaining authority might be contending that the person concerned has left its custody13.
The district magistrate, on whose satisfaction the order of preventive detention was issued, must file counter
affidavits on behalf of the State in preventive detention cases. This is necessary because the court is
precluded from testing the subjective satisfaction of the detaining authority by objective standards. If for
sufficient reasons shown to the satisfaction of the court, the affidavit of the magistrate concerned cannot be
filed, then the counter affidavit must be sworn by some responsible officer who personally dealt with or
processed the case in the government secretariat14. However, failure to furnish a counter affidavit is an
impropriety that may not be fatal, except where subjective satisfaction is challenged on the ground of mala
fides, extraneous considerations, colourable exercise of powers or abdication of functions in favour of
subordinates15.
Since personal liberty is one of the most cherished values of mankind, procedural technicalities have been
reduced in matters of issuance of habeas corpus16. The procedure established by law has to be followed
while issuing habeas corpus17. In case of an application for a writ of habeas corpus, the court does not, as a
matter of practice, follow strict rules of pleading. Even a postcard by a detenu from jail is sufficient to activate
the court into examining the legality of detention. The right to life and personal liberty enshrined in the
Constitution of India places the burden on the detaining authority of showing that detention is in accordance
with the procedure established by law. The court may grant an interim bail while dealing with a habeas
corpus petition18.
The writ of habeas corpus can be used to trace persons picked up by the army or the police. In such cases,
on petitions for habeas corpus being moved by their relatives, courts may award compensation19.
A foreigner who enters India secretly cannot claim freedom of movement and his detention with a view to
expel him from India is not illegal20.
A court cannot go into the question of correctness of a decision by a legally constituted court of competent
jurisdiction. However, the court can go into questions of jurisdiction of the court martial or whether it was
properly constituted or whether there was such an irregularity or illegality as would go to the root of its
jurisdiction21. The scope of habeas corpus has been widened to give relief against inhuman and cruel
treatment meted out to the prisoners in jail. The use of habeas corpus has thus been widened for protecting
various personal liberties to which the arrested persons or prisoners are entitled to under the law and the
Constitution22.
Habeas corpus may also be issued when a person complains of illegal custody or detention by a private
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person23. When conflicting claims are made for the custody of an infant, the court can enquire into these
claims and award the custody to the proper person24.
1 Janardhan Reddy v State of Hyderabad AIR 1951 SC 217 [LNIND 1951 SC 19] [LNIND 1951 SC 19] [LNIND 1951 SC 19],
Janardhan Reddy v State of Hyderabad [1951] SCR 344 [LNIND 1951 SC 19] [LNIND 1951 SC 19] [LNIND 1951 SC 19],
Janardhan Reddy v State of Hyderabad (1951) SCJ 320; Godavari S Parulekar v State of Maharashtra AIR 1966 SC 1404
[LNIND 1966 SC 321] [LNIND 1966 SC 321] [LNIND 1966 SC 321], Godavari S Parulekar v State of Maharashtra [1966] 3 SCR
314 [LNIND 1966 SC 321] [LNIND 1966 SC 321] [LNIND 1966 SC 321], Godavari S Parulekar v State of Maharashtra (1966) Cr
LJ 1067.
2 B Ramachandra Rao v State of Orissa AIR 1971 SC 2197, B Ramachandra Rao v State of Orissa (1972) 3 SCC 256, B
Ramachandra Rao v State of Orissa (1971) UJ 767 (writ habeas corpus cannot be granted to a person undergoing the
sentence of imprisonment).
3 Kanu Sanyal v District Magistrate, Darjeeling AIR 1973 SC 2684 [LNIND 1973 SC 271] [LNIND 1973 SC 271] [LNIND 1973
SC 271], Kanu Sanyal v District Magistrate, Darjeeling (1973) 2 SCC 674 [LNIND 1973 SC 271] [LNIND 1973 SC 271] [LNIND
1973 SC 271], Kanu Sanyal v District Magistrate, Darjeeling (1973) SCC (Cr) 980; Secretary of State v O Brien (1923) AC 603
(tracing the course of development of the writ in England, the Court concluded that habeas corpus is essentially a procedural
writ; that it deals with the machinery of justice and not the substantive law; that the object of the writ is to secure the release of a
person who is illegally restrained of his liberty; that the most important feature of the writ is its peremptoriness; that the
production of the body of the person alleged to be wrongfully detained is ancillary to the main purpose of the writ). See also
Sebastian M Hongrey v Union of India AIR 1984 SC 571 [LNIND 1983 SC 352] [LNIND 1983 SC 352] [LNIND 1983 SC 352],
Sebastian M Hongrey v Union of India (1984) 3 SCC 339 [LNIND 1984 SC 57] [LNIND 1984 SC 57] [LNIND 1984 SC 57],
Sebastian M Hongrey v Union of India (1984) SCC (Cr) 87 (however, this does not seem to be an inflexible rule and the court
may issue the writ and direct the authority to produce the body before it in a suitable case).
4 A K Gopalan v Government of India AIR 1966 SC 816 [LNIND 1965 SC 574] [LNIND 1965 SC 574] [LNIND 1965 SC 574], A
K Gopalan v Government of India [1966] 2 SCR 427 [LNIND 1965 SC 574] [LNIND 1965 SC 574] [LNIND 1965 SC 574], A K
Gopalan v Government of India (1966) Cr LJ 602.
5 Naranjan Singh Nathawan v State of Punjab AIR 1952 SC 106 [LNIND 1952 SC 3] [LNIND 1952 SC 3] [LNIND 1952 SC 3],
Naranjan Singh Nathawan v State of Punjab [1952] SCR 395 [LNIND 1952 SC 3] [LNIND 1952 SC 3] [LNIND 1952 SC 3],
Naranjan Singh Nathawan v State of Punjab (1952) SCJ 111 [LNIND 1952 SC 3] [LNIND 1952 SC 3] [LNIND 1952 SC 3]; Ram
Narain Singh v State of Delhi AIR 1953 SC 277 [LNIND 1953 SC 28] [LNIND 1953 SC 28] [LNIND 1953 SC 28], Ram Narain
Singh v State of Delhi [1953] SCR 652 [LNIND 1953 SC 28] [LNIND 1953 SC 28] [LNIND 1953 SC 28], Ram Narain Singh v
State of Delhi (1953) SCJ 326 [LNIND 1953 SC 28] [LNIND 1953 SC 28] [LNIND 1953 SC 28].
6 Talib Husain v State of Jammu and Kashmir AIR 1971 SC 62 [LNIND 1970 SC 279] [LNIND 1970 SC 279] [LNIND 1970 SC
279], Talib Husain v State of Jammu and Kashmir (1971) 3 SCC 118, Talib Husain v State of Jammu and Kashmir (1970) UJ
709 (no writ can be issued if detention on that date is lawful). As to hearing as an essential part of the rule of audi alteram
partem see [005.058].
7 Kanu Sanyal v District Magistrate Darjeeling AIR 1974 SC 510 [LNIND 1974 SC 27] [LNIND 1974 SC 27] [LNIND 1974 SC
27], Kanu Sanyal v District Magistrate Darjeeling (1974) 4 SCC 141 [LNIND 1974 SC 27] [LNIND 1974 SC 27] [LNIND 1974 SC
27], Kanu Sanyal v District Magistrate Darjeeling [1974] 1 SCR 691.
8 Sheela Barse v State of Maharashtra AIR 1983 SC 378 [LNIND 1983 SC 57] [LNIND 1983 SC 57] [LNIND 1983 SC 57],
Sheela Barse v State of Maharashtra (1983) 2 SCC 96 [LNIND 1983 SC 57] [LNIND 1983 SC 57] [LNIND 1983 SC 57], Sheela
Barse v State of Maharashtra [1983] 2 SCR 337 [LNIND 1983 SC 57] [LNIND 1983 SC 57] [LNIND 1983 SC 57].
9 Dular Roy v District Magistrate, Burdwan AIR 1975 SC 1508 [LNIND 1975 SC 9] [LNIND 1975 SC 9] [LNIND 1975 SC 9],
Dular Roy v District Magistrate, Burdwan (1975) 1 SCC 837 [LNIND 1975 SC 9] [LNIND 1975 SC 9] [LNIND 1975 SC 9], Dular
Roy v District Magistrate, Burdwan [1975] 3 SCR 186 [LNIND 1975 SC 9] [LNIND 1975 SC 9] [LNIND 1975 SC 9] (order
quashed as colourable exercise of power); Nazamuddin v West Bengal AIR 1974 SC 2253; Niranjan Singh v Madhya Pradesh
AIR 1972 SC 2215 [LNIND 1972 SC 319] [LNIND 1972 SC 319] [LNIND 1972 SC 319], Niranjan Singh v Madhya Pradesh
(1972) 2 SCC 542 [LNIND 1972 SC 319] [LNIND 1972 SC 319] [LNIND 1972 SC 319], Niranjan Singh v Madhya Pradesh
10 TA Abdul Rahman v State of Kerala AIR 1990 SC 225 [LNIND 1989 SC 413] [LNIND 1989 SC 413] [LNIND 1989 SC 413],
TA Abdul Rahman v State of Kerala (1989) 4 SCC 741 [LNIND 1989 SC 413] [LNIND 1989 SC 413] [LNIND 1989 SC 413], TA
Abdul Rahman v State of Kerala [1989] 3 SCR 945 [LNIND 1989 SC 413] [LNIND 1989 SC 413] [LNIND 1989 SC 413];
Dharamdas Shamlal Agarwal v Police Commissioner AIR 1989 SC 1282 [LNIND 1989 SC 840] [LNIND 1989 SC 840] [LNIND
1989 SC 840], Dharamdas Shamlal Agarwal v Police Commissioner (1989) 2 SCC 370 [LNIND 1989 SC 840] [LNIND 1989 SC
840] [LNIND 1989 SC 840], Dharamdas Shamlal Agarwal v Police Commissioner [1989] 2 SCR 43 [LNIND 1989 SC 840]
[LNIND 1989 SC 840] [LNIND 1989 SC 840]; Jai Singh v State of Jammu & Kashmir AIR 1985 SC 764, Jai Singh v State of
Jammu & Kashmir (1985) 1 SCC 561, Jai Singh v State of Jammu & Kashmir (1985) UJ 410.
11 Icchu Devi v Union of India AIR 1980 SC 1983 [LNIND 1980 SC 372] [LNIND 1980 SC 372] [LNIND 1980 SC 372], Icchu
407
Page 4
Devi v Union of India (1980) 4 SCC 531 [LNIND 1980 SC 372] [LNIND 1980 SC 372] [LNIND 1980 SC 372], Icchu Devi v Union
of India [1981] 1 SCR 640 [LNIND 1980 SC 372] [LNIND 1980 SC 372] [LNIND 1980 SC 372].
12 Sebastian M Hongrey v Union of India AIR 1984 SC 571 [LNIND 1983 SC 352] [LNIND 1983 SC 352] [LNIND 1983 SC
352], Sebastian M Hongrey v Union of India (1984) 3 SCC 339 [LNIND 1984 SC 57] [LNIND 1984 SC 57] [LNIND 1984 SC 57],
Sebastian M Hongrey v Union of India (1984) SCC (Cr) 87. As to the meaning of ex parte decree see CIVIL
PROCEDURE[65.334].
14 Shaik Hanif v State of West Bengal AIR 1974 SC 679 [LNIND 1974 SC 24] [LNIND 1974 SC 24] [LNIND 1974 SC 24], Shaik
Hanif v State of West Bengal (1974) 1 SCC 637 [LNIND 1974 SC 24] [LNIND 1974 SC 24] [LNIND 1974 SC 24], Shaik Hanif v
State of West Bengal [1974] 3 SCR 258 [LNIND 1974 SC 24] [LNIND 1974 SC 24] [LNIND 1974 SC 24].
15 Bhut Nath Mate v State of West Bengal AIR 1974 SC 807, Bhut Nath Mate v State of West Bengal (1974) 1 SCC 645
[LNIND 1974 SC 31] [LNIND 1974 SC 31] [LNIND 1974 SC 31], Bhut Nath Mate v State of West Bengal [1974] 3 SCR 315
[LNIND 1974 SC 31] [LNIND 1974 SC 31] [LNIND 1974 SC 31]; Asgar Ali v District Magistrate, Burdwan AIR 1974 SC 1814,
Asgar Ali v District Magistrate, Burdwan (1974) 4 SCC 527, Asgar Ali v District Magistrate, Burdwan (1974) UJ 747; Merugu
Satyanarayana v State of Andhra Pradesh AIR 1982 SC 1543 [LNIND 1982 SC 148] [LNIND 1982 SC 148] [LNIND 1982 SC
148], Merugu Satyanarayana v State of Andhra Pradesh (1982) 3 SCC 301 [LNIND 1982 SC 148] [LNIND 1982 SC 148]
[LNIND 1982 SC 148], Merugu Satyanarayana v State of Andhra Pradesh [1983] 1 SCR 635 [LNIND 1982 SC 148] [LNIND
1982 SC 148] [LNIND 1982 SC 148].
16 Icchu Devi v Union of India AIR 1980 SC 1983 [LNIND 1980 SC 372] [LNIND 1980 SC 372] [LNIND 1980 SC 372], Icchu
Devi v Union of India (1980) 4 SCC 531 [LNIND 1980 SC 372] [LNIND 1980 SC 372] [LNIND 1980 SC 372], Icchu Devi v Union
of India [1981] 1 SCR 640 [LNIND 1980 SC 372] [LNIND 1980 SC 372] [LNIND 1980 SC 372].
17 See the Constitution of India art 21 (see generally[80]CONSTITUTIONAL LAW). Maneka Gandhi v Union of India AIR 1978
SC 597 [LNIND 1978 SC 25] [LNIND 1978 SC 25] [LNIND 1978 SC 25]; Madhav Hayawadanrao Hoskot v State of
Maharashtra AIR 1978 SC 1548 [LNIND 1978 SC 199] [LNIND 1978 SC 199] [LNIND 1978 SC 199], Madhav Hayawadanrao
Hoskot v State of Maharashtra (1978) 3 SCC 544 [LNIND 1978 SC 199] [LNIND 1978 SC 199] [LNIND 1978 SC 199], Madhav
Hayawadanrao Hoskot v State of Maharashtra (1978) Cr LR (SC) 362; Sunil Batra v Delhi Administration AIR 1978 SC 1675
[LNIND 1978 SC 215] [LNIND 1978 SC 215] [LNIND 1978 SC 215], Sunil Batra v Delhi Administration (1978) Cr LJ 1741.
18 State of Bihar v Rambalak Singh AIR 1966 SC 1441 [LNIND 1966 SC 18] [LNIND 1966 SC 18] [LNIND 1966 SC 18], State
of Bihar v Rambalak Singh [1966] 3 SCR 344 [LNIND 1966 SC 18] [LNIND 1966 SC 18] [LNIND 1966 SC 18], State of Bihar v
Rambalak Singh (1966) Cr LJ 1076. See generally [80]CONSTITUTIONAL LAW.
19 Malkiat Singh v State of Uttar Pradesh AIR 1999 SC 1522, Malkiat Singh v State of Uttar Pradesh AIR 1998 SCW 3932,
Malkiat Singh v State of Uttar Pradesh (1998) 9 SCC 351 (a habeas corpus petition was filed by the father of 'T'; it was alleged
that 'T' had been kept in illegal custody by the police officers; it was established that 'T' was killed in an encounter with the
police; the court awarded Rs 5 lac as compensation to the petitioner); Nilabati Behera Alias Lalita Behera v State of Orissa AIR
1993 SC 1960 [LNIND 1993 SC 1167] [LNIND 1993 SC 1167] [LNIND 1993 SC 1167], Nilabati Behera Alias Lalita Behera v
State of Orissa (1993) 2 SCC 746 [LNIND 1993 SC 1167] [LNIND 1993 SC 1167] [LNIND 1993 SC 1167], Nilabati Behera Alias
Lalita Behera v State of Orissa (1993) 2 SCJ 487; Postsangbam Ningol Thokchom v General Officer Commanding AIR 1997
SC 3534 [LNIND 1997 SC 1225] [LNIND 1997 SC 1225] [LNIND 1997 SC 1225], Postsangbam Ningol Thokchom v General
Officer Commanding (1997) SCC 725, Postsangbam Ningol Thokchom v General Officer Commanding (1997) 8 JT 140; Inder
Singh v State of Punjab AIR 1995 SC 312 [LNINDORD 1994 SC 20] [LNINDORD 1994 SC 20] [LNINDORD 1994 SC 20], Inder
Singh v State of Punjab (1994) 6 SCC 275 [LNIND 1995 SC 1381] [LNIND 1995 SC 1381] [LNIND 1995 SC 1381], Inder Singh
v State of Punjab (1995) 1 SCJ 343 (Supreme Court directed the state to which guilty police belonged to pay Rs 1.5 lakhs to
legal representatives of each abducted person).
20 Anwar v State of Jammu & Kashmir AIR 1971 SC 337 [LNIND 1970 SC 279] [LNIND 1970 SC 279] [LNIND 1970 SC 279],
Anwar v State of Jammu & Kashmir (1971) 3 SCC 104 [LNIND 1970 SC 279] [LNIND 1970 SC 279] [LNIND 1970 SC 279],
Anwar v State of Jammu & Kashmir [1971] 1 SCR 637 [LNIND 1970 SC 279] [LNIND 1970 SC 279] [LNIND 1970 SC 279]
(Government of J & K can validly order deportation of foreigner).
21 Flying Officer S Sundarajan v Union of India AIR 1970 Del 29 [LNIND 1969 DEL 52] [LNIND 1969 DEL 52] [LNIND 1969
DEL 52], Flying Officer S Sundarajan v Union of India (1970) Cr LJ 213, Flying Officer S Sundarajan v Union of India (1970) Ser
LR 459 (the petitioner was convicted by a court martial for criminal misappropriation of money and was sentenced to a term of
imprisonment; rejecting his petition for a writ of habeas corpus, the high court stated that habeas corpus was not available to
question the correctness of a decision by a legally constituted court of competent jurisdiction; the high court can go into
questions of jurisdiction of the court martial or whether it was properly constituted or whether there was such an irregularity or
illegality as would go to the root of its jurisdiction).
22 Sunil Batra v Delhi Administration AIR 1978 SC 1675 [LNIND 1978 SC 215] [LNIND 1978 SC 215] [LNIND 1978 SC 215],
Sunil Batra v Delhi Administration (1978) 4 SCC 494 [LNIND 1978 SC 215] [LNIND 1978 SC 215] [LNIND 1978 SC 215], Sunil
Batra v Delhi Administration [1979] 1 SCR 392 [LNIND 1978 SC 215] [LNIND 1978 SC 215] [LNIND 1978 SC 215], Sunil Batra
v Delhi Administration (1978) Cr LJ 1741(a letter was written by a prisoner to a Supreme Court judge complaining of brutal
attack by the prison staff on a fellow prisoner; the letter was treated by the Court as a petition for the writ of habeas corpus; the
Court pointed out that its powers under the Constitution of India art 32 are free from the rigid restraints of the traditional English
408
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writs; prisoners are persons and have some rights and do not lose their basic constitutional rights; where the rights of a prisoner
either under the Constitution or under other law are violated, the writ power of the court can and must run to his rescue);
Charles Sobraj v Supdt, Central Jail, Tihar,New Delhi AIR 1978 SC 1514 [LNIND 1978 SC 218] [LNIND 1978 SC 218] [LNIND
1978 SC 218], Charles Sobraj v Supdt, Central Jail, Tihar,New Delhi (1978) 4 SCC 104 [LNIND 1978 SC 218] [LNIND 1978 SC
218] [LNIND 1978 SC 218], Charles Sobraj v Supdt, Central Jail, Tihar,New Delhi (1978) SCC (Cr) 542.
23 Madhu Bala v Narender Kumar AIR 1982 SC 938, Madhu Bala v Narender Kumar [1982] 2 SCC 444, Madhu Bala v
Narender Kumar (1982) SCC (Cr) 468.
24 Veena Kapoor v Varinder Kumar Kapoor AIR 1982 SC 792 [LNIND 1981 SC 209] [LNIND 1981 SC 209] [LNIND 1981 SC
209], Veena Kapoor v Varinder Kumar Kapoor (1981) 3 SCC 92 [LNIND 1981 SC 209] [LNIND 1981 SC 209] [LNIND 1981 SC
209], Veena Kapoor v Varinder Kumar Kapoor (1982) 1 SCJ 202 [LNIND 1981 SC 209] [LNIND 1981 SC 209] [LNIND 1981 SC
209]; Gohar Begum v Suggi Nazma Begum AIR 1960 SC 93 [LNIND 1959 SC 146] [LNIND 1959 SC 146] [LNIND 1959 SC
146], Gohar Begum v Suggi Nazma Begum (1960) SCJ 31 [LNIND 1959 SC 146] [LNIND 1959 SC 146] [LNIND 1959 SC 146],
Gohar Begum v Suggi Nazma Begum [1960] 1 SCR 597 [LNIND 1959 SC 146] [LNIND 1959 SC 146] [LNIND 1959 SC 146].

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(2) QUO WARRANTO/[005.281] Generally
[005.281] Generally The writ of quo warranto is used to judicially control executive action in matters of
making appointments to public offices under the relevant statutory provisions. Through this writ, appointment
of a person to a public office can be challenged if the person concerned is not qualified to hold the office in
question or if his appointment suffers from any legal flaw.
In order to pray for quo warranto, one need not have suffered a personal injury nor is it necessary for the
person to seek redressal of a personal grievance1. Petitions for quo warranto have been moved to test the:
(1) validity of election of a person to a university syndicate or as the mayor of a municipal

corporation2;
(2) nomination of members to a Legislative Council by the Governor3;
(3) appointment of the Chief Minister of a state4;
(4) appointment of the Chief Justice of India5;
(5) appointment of the Advocate General in a state6, a public prosecutor7, university teachers8
and presiding officer of a labour court9.
Quo warranto is available against the holder of any public office whether he holds it by nomination,
appointment or election. The writ lies only in respect of a public office of a substantive character and not a
private office10. The writ would not therefore lie to question the appointment of a college principal or a
member of a school managing committee, as none of these is a public office11. An appointment to the office
of a public prosecutor may be quashed through quo warranto if it is in contravention of a relevant statutory
rule, as it is a substantive public office involving duties of public nature12. When an incumbent does not fulfil
the qualifications prescribed by the Constitution for the office, it becomes the duty of the court to see that no
ineligible or unqualified person is appointed to the concerned office13.
Quo warranto is issued against the usurper of an office and the appointing authority is not a party to the court
proceedings. Thus, the court can control the election or appointment to an office and protect a citizen from
being deprived of a public office to which he may be entitled14. If the statute prescribes certain qualifications
for holding a public office, it is open to the court on a petition filed by a citizen to scrutinise the qualifications
of the person whose appointment to the public office is called into question15.
The motives of the appointing officer in making the appointment in question are irrelevant in a quo warranto
petition16. Also, the court would not issue the writ if it is futile, for example, if the person holding the office, on
being ousted by quo warranto can be reappointed17.
1 Satish Chander Sharma v University of Rajasthan AIR 1970 Raj 184, Satish Chander Sharma v University of Rajasthan
409
Page 6
(1970) LW 403, Satish Chander Sharma v University of Rajasthan (1970) ILR 20 Raj 268. See also Arun Kumar v Union of
India India AIR 1982 Raj 67 [LNIND 1981 RAJ 102] [LNIND 1981 RAJ 102] [LNIND 1981 RAJ 102], Arun Kumar v Union of
India India (1981) WLN 290, Arun Kumar v Union of India India (1981) Raj LW 549.
2 Rajendar Singh v NK Shejwalkar AIR 1971 MP 248 [LNIND 1971 MP 59] [LNIND 1971 MP 59] [LNIND 1971 MP 59],
Rajendar Singh v NK Shejwalkar (1971) LLJ 361, Rajendar Singh v NK Shejwalkar (1971) MP LJ 639.
3 Binam v H C Mookerjee 56 Cal WN 651; Vidya Sagar v Krishan Ballabha Sajay AIR 1965 Pat 321; Har Sharan Verma v
Chandra Bhan Gupta AIR 1962 All 301 [LNIND 1961 ALL 18] [LNIND 1961 ALL 18] [LNIND 1961 ALL 18], Har Sharan Verma v
Chandra Bhan Gupta (1961) All LJ 927.
4 Har Sharan Verma v Tribhuvan Narain Singh, Chief Minister of Uttar Pradesh AIR 1971 SC 1331 [LNIND 1971 SC 171]
[LNIND 1971 SC 171] [LNIND 1971 SC 171], Har Sharan Verma v Tribhuvan Narain Singh, Chief Minister of Uttar Pradesh
(1971) 1 SCC 616 [LNIND 1971 SC 171] [LNIND 1971 SC 171] [LNIND 1971 SC 171], Har Sharan Verma v Tribhuvan Narain
Singh, Chief Minister of Uttar Pradesh [1971] Supp SCR 1. See also Dinesh Chandra Pande v Chaudhury Charan Singh AIR
1980 Del 114 [LNIND 1979 DEL 165] [LNIND 1979 DEL 165] [LNIND 1979 DEL 165]; Madan Murari Verma v Chaudhuri
Charan Singh Singh AIR 1980 Cal 95 [LNIND 1979 CAL 242] [LNIND 1979 CAL 242] [LNIND 1979 CAL 242], Madan Murari
Verma v Chaudhuri Charan Singh Singh 84 Cal WN 145 (the appointment of the Prime Minister of India was challenged
unsuccessfully).
5 PL Lakhan Pal v Ajth Nath Ray, Chief Justice of India AIR 1975 Del 66 [LNIND 1974 DEL 37] [LNIND 1974 DEL 37] [LNIND
1974 DEL 37], PL Lakhan Pal v Ajth Nath Ray, Chief Justice of India 77 Pun LR (D) 17.
6 G D Karkare v TL Shevde AIR 1952 Nagpur 330.
7 A Mohambaran v MA Jayavelu AIR 1970 Mad 63 [LNIND 1968 MAD 200] [LNIND 1968 MAD 200] [LNIND 1968 MAD 200], A
Mohambaran v MA Jayavelu (1969) 1 Mad LJ 261, A Mohambaran v MA Jayavelu (1970) Cr LJ 241.
8 Universityof Mysore v CD Govinda Rao AIR 1965 SC 491 [LNIND 1963 SC 341] [LNIND 1963 SC 341] [LNIND 1963 SC
341], Universityof Mysore v CD Govinda Rao [1964] 4 SCR 575 [LNIND 1963 SC 341] [LNIND 1963 SC 341] [LNIND 1963 SC
341], Universityof Mysore v CD Govinda Rao (1964) 1 SCWR 44 [LNIND 1963 SC 341] [LNIND 1963 SC 341] [LNIND 1963 SC
341].
9 State of Haryana v Haryana Co op Transport AIR 1977 SC 237 [LNIND 1976 SC 463] [LNIND 1976 SC 463] [LNIND 1976
SC 463], State of Haryana v Haryana Co op Transport (1977) 1 SCC 271 [LNIND 1976 SC 463] [LNIND 1976 SC 463] [LNIND
1976 SC 463], State of Haryana v Haryana Co op Transport [1977] 2 SCR 306 [LNIND 1976 SC 463] [LNIND 1976 SC 463]
[LNIND 1976 SC 463].
10 Ram Singh Saini v HN Bhargava AIR 1975 SC 1852 [LNIND 1975 SC 234] [LNIND 1975 SC 234] [LNIND 1975 SC 234],
Ram Singh Saini v HN Bhargava (1975) 4 SCC 676 [LNIND 1975 SC 234] [LNIND 1975 SC 234] [LNIND 1975 SC 234], Ram
Singh Saini v HN Bhargava [1976] 1 SCR 148 [LNIND 1975 SC 234] [LNIND 1975 SC 234] [LNIND 1975 SC 234]; Kanta
Kathuria v Manak Chand Surana AIR 1970 SC 694 [LNIND 1969 SC 407] [LNIND 1969 SC 407] [LNIND 1969 SC 407], Kanta
Kathuria v Manak Chand Surana (1970) 2 SCJ 232; Arun Kumar v Union of India AIR 1982 Raj 67 [LNIND 1981 RAJ 102]
[LNIND 1981 RAJ 102] [LNIND 1981 RAJ 102], Arun Kumar v Union of India (1981) WLN 290, Arun Kumar v Union of India
(1981) Raj LW 540; Satish Chander Sharma v University of Rajasthan AIR 1970 Raj 184, Satish Chander Sharma v University
of Rajasthan (1970) Raj LW 403, Satish Chander Sharma v University of Rajasthan (1970) ILR 20 Raj 268; Ali Mohammad
Tariq v Election Commission of India AIR 1968 J & K 46; Deorao Laxman Anande v Keshav Laxman Borkar AIR 1958 Bom
314 [LNIND 1957 BOM 198] [LNIND 1957 BOM 198] [LNIND 1957 BOM 198], Deorao Laxman Anande v Keshav Laxman
Borkar 60 Bom LR 217; Amarendra v Narendra AIR 1953 Cal 114 [LNIND 1952 CAL 67] [LNIND 1952 CAL 67] [LNIND 1952
CAL 67].
11 Niranjan Kumar Goenka v University of Bihar, Muzaffarpur AIR 1973 Pat 85; Amarendra v Narendra Kumar AIR 1953 Cal
114 [LNIND 1952 CAL 67] [LNIND 1952 CAL 67] [LNIND 1952 CAL 67], Amarendra v Narendra Kumar 56 Cal WN 449.
12 A Mohambaran v M A Jayavelu AIR 1970 Mad 63 [LNIND 1968 MAD 200] [LNIND 1968 MAD 200] [LNIND 1968 MAD 200],
A Mohambaran v M A Jayavelu (1969) 1 Mad LJ 261, A Mohambaran v M A Jayavelu (1970) Cr LJ 241; Durga Chand v
Administrator AIR 1971 Del 73 [LNIND 1970 DEL 165] [LNIND 1970 DEL 165] [LNIND 1970 DEL 165], Durga Chand v
Administrator (1970) Serv LR 835.
13 Kumar Padma Prasad v Union of India AIR 1992 SC 1213 [LNIND 1992 SC 225] [LNIND 1992 SC 225] [LNIND 1992 SC
225], Kumar Padma Prasad v Union of India (1992) 2 SCC 428 [LNIND 1992 SC 225] [LNIND 1992 SC 225] [LNIND 1992 SC
225], Kumar Padma Prasad v Union of India (1992) 2 SLR 210; SC Malik v PP Sharma AIR 1982 Del 83 [LNIND 1981 DEL
278] [LNIND 1981 DEL 278] [LNIND 1981 DEL 278], SC Malik v PP Sharma (1982) 1 Serv LJ 25; K Bheema Raju v
Government of Andhra Pradesh AIR 1981 AP 24, K Bheema Raju v Government of Andhra Pradesh (1980) 2 Andh WR 314, K
Bheema Raju v Government of Andhra Pradesh (1980) 3 Serv LR 141 (appointment of a government pleader was quashed
because the procedure prescribed in the relevant rules for the purpose had not been followed).
14 Universityof Mysore v CD Govinda Rao AIR 1965 SC 491 [LNIND 1963 SC 341] [LNIND 1963 SC 341] [LNIND 1963 SC
341], Universityof Mysore v CD Govinda Rao [1964] 4 SCR 575 [LNIND 1963 SC 341] [LNIND 1963 SC 341] [LNIND 1963 SC
341], Universityof Mysore v CD Govinda Rao (1964) 1 SCWR 44 [LNIND 1963 SC 341] [LNIND 1963 SC 341] [LNIND 1963 SC
341]; Puranlal Lakhanpal v PC Ghosh AIR 1970 Cal 118 [LNIND 1969 CAL 123] [LNIND 1969 CAL 123] [LNIND 1969 CAL
410
Page 7
123], Puranlal Lakhanpal v PC Ghosh 74 Cal WN 228.
15 Durga Chand v Administrator AIR 1971 Del 73 [LNIND 1970 DEL 165] [LNIND 1970 DEL 165] [LNIND 1970 DEL 165],
Durga Chand v Administrator (1970) Serv LR 835.
16 S C Malik v PP Sharma AIR 1982 Del 83 [LNIND 1981 DEL 278] [LNIND 1981 DEL 278] [LNIND 1981 DEL 278], S C Malik
v PP Sharma (1982) 1 Serv LJ 25.
17 PL Lakhan Pal v Ajth Nath Ray, Chief Justice of India AIR 1975 Del 66 [LNIND 1974 DEL 37] [LNIND 1974 DEL 37] [LNIND
1974 DEL 37], PL Lakhan Pal v Ajth Nath Ray, Chief Justice of India 77 Pun LR (D) 17 (the court argued that the writ would not
be issued if it is futile to do so or where a mere irregularity in the appointment can be cured; thus, even if it were assumed that
the appointment of the Chief Justice must be on the basis of the rule of seniority, the justice could immediately be reappointed,
if quo warranto were issued, for he was by then the senior most judge of the Court; it follows from this that if a holder of a public
office is not qualified to hold the office initially but subsequently acquires the necessary qualifications during the pendency of the
writ petition, the writ of quo warranto will not be issued; thirdly, the court ruled that mala fides of the appointing authority is not
relevant to the question of issuing quo warranto as the writ is issued against the usurper of the office and not against the
appointing authority; quo warranto would not be issued even if the appointment was made for a collateral purpose if the
appointment did not violate any mandatory rule); SC Malik v P P Sharma AIR 1982 Del 83 [LNIND 1981 DEL 278] [LNIND
1981 DEL 278] [LNIND 1981 DEL 278], SC Malik v P P Sharma (1982) 1 Serv LJ 25; Gunanidhi Mohapatra v Chairman, NAC,
Bhubaneswar AIR 1976 Ori 181 [LNIND 1976 ORI 6] [LNIND 1976 ORI 6] [LNIND 1976 ORI 6], Gunanidhi Mohapatra v
Chairman, NAC, Bhubaneswar (1976) 2 Serv LR 107, Gunanidhi Mohapatra v Chairman, NAC, Bhubaneswar (1976) Cut 587.

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(2) QUO WARRANTO/[005.282] Specific instances of
issuance
[005.282] Specific instances of issuance The office of the Chief Minister is one of substantive character
created by the Constitution. Therefore, quo warranto may be issued if any person is appointed as the Chief
Minister in breach of a constitutional provision. Membership of an Assembly is not an office for the purposes
of quo warranto and it is not a proper remedy to raise questions relating to the election of the Chief Minister
to the House. Such a question can be raised properly only through an election petition1. Furthermore, quo
warranto will not be issued if there is an alternative legal remedy2 provided by the statute. Thus, it will not be
a proper remedy to challenge the election of a Chief Minister to the House, as the statute provides for the
purpose the remedy of an election petition3.
When the Governor of a state appoints4 a person who is not qualified or is disqualified, to be a member of
the Sate Legislature, as the Chief Minister, the appointment is unconstitutional5. Therefore, the authority of
the appointee to hold the said office can be questioned through a quo warranto petition. Although the
discretion of the Governor is not challengeable6, this immunity does not extend to the appointee and the
appointment of the Chief Minister can be quashed by the high court by issuing quo warranto to him7. When
disqualified persons are appointed as the Chief Minister and other Ministers, a petition for quo warranto is
maintainable against them for they are usurpers of the office. Any delay in filing a writ petition for quo
warranto may not come in the way of the court granting the necessary relief8.
A writ of quo warranto is not issuable against the Council of Ministers on the ground that it does not
command majority support in the House9. A quo warranto cannot be issued for seeking dismissal of the
Chief Minister of a state on the ground of non-performance of a constitutional duty10.
Whether the post of a professor is subject to quo warranto is still not clear11.
An appointment to a public office cannot be challenged in a collateral proceeding12. An appointment made

by the government may be quashed later by the court because of some formal defect therein. A question
may arise whether the quashing of the appointment of a public officer would also invalidate the orders
passed by him while he was holding the office. The court, in such cases may apply the de facto doctrine to
uphold the orders made by him13.
411
Page 8
1 Purshottam Lal Sharma v State of Rajasthan AIR 1979 Raj 18 [LNIND 1978 RAJ 51] [LNIND 1978 RAJ 51] [LNIND 1978 RAJ
51], Purshottam Lal Sharma v State of Rajasthan (1978) WLN 468, Purshottam Lal Sharma v State of Rajasthan (1978) Raj LW
428 (a petition for quo warranto was filed against the Chief Minister of Rajasthan on the ground that he was not validly elected
to the House; the Rajasthan high court stated that quo warranto may be issued on the petition of a member of the public if a
Chief Minister holds office without lawful authority and in breach of any constitutional provision).
2 See [005.230] and [005.272].
3 Purshottam Lal Sharma v State of Rajasthan AIR 1979 Raj 18 [LNIND 1978 RAJ 51] [LNIND 1978 RAJ 51] [LNIND 1978 RAJ
51], Purshottam Lal Sharma v State of Rajasthan (1978) WLN 468, Purshottam Lal Sharma v State of Rajasthan (1978) Raj LW
428; Jogendra Nath Hazarika v State of Assam AIR 1982 Gau 25.
5 See note 3 above.
6 Ie not challengeable because of the Constitution of India art 361 (see generally[80]CONSTITUTIONAL LAW).
7 BR Kapur v State of Tamil Nadu AIR 2001 SC 3435 [LNIND 2001 SC 2120] [LNIND 2001 SC 2120] [LNIND 2001 SC 2120],
BR Kapur v State of Tamil Nadu AIR 2001 SCW 3720, BR Kapur v State of Tamil Nadu (2001) 7 SCC 231 [LNIND 2001 SC
2120] [LNIND 2001 SC 2120] [LNIND 2001 SC 2120](the Supreme Court has clarified the nature and scope of quo warranto;
when an application for issue of quo warranto is being considered by the court, the governor is not being made amenable to the
court; it is the appointee whose duty it is to satisfy the court about his eligibility to hold the office and that there has been no
illegal usurpation of the public office in question; from this point of view, there could be no infraction of the Constitution of India
art 361) (see generally[80]CONSTITUTIONAL LAW).
8 K Bheema Raju v Government of Andhra Pradesh AIR 1981 AP 24, K Bheema Raju v Government of Andhra Pradesh
(1980) 2 Andh WR 314, K Bheema Raju v Government of Andhra Pradesh (1980) 3 Serv LR 141 (the Speaker of the Goa
Assembly declared the Chief Minister and his two colleagues in the Cabinet disqualified for membership of the Assembly under
the Anti Defection Law; the high court passed an interim stay order; thereafter, the Assembly removed the Speaker from office
and the Deputy Speaker, acting as the Speaker, reviewing the earlier Speaker's order set it aside and thus removed the
disqualification of the Chief Minister and his two colleagues; after ten months, a writ petition for quo warranto was filed
challenging the order passed by the Deputy Speaker; it was argued that the writ petition was not maintainable because of
laches but the Supreme Court rejected the contention and held that the petition for quo warranto was maintainable in the instant
case for the following reasons: (1) the petitioner was not asserting any personal interest; and (2) the persons concerned that is
the Chief Minister and other Ministers were holding high public offices inspite of being disqualified for membership of the House;
appointment of a government pleader was quashed because the procedure prescribed in the relevant rules for this purpose had
not been followed; the petition was made one year after the appointment; ignoring the plea of laches, the court observed that in
a matter involving the right to a public office and violation of legal procedure to be adopted in making appointment to a public
office, delay must not deter the court in granting the discretionary relief and rendering justice).
9 R K Nokulsana Singh v Rishang Keising AIR 1981 Gau 48.
10 Y S Rajasekara Reddy v Nara Chandrababu Naidu AIR 2000 AP 142 [LNIND 2000 AP 230] [LNIND 2000 AP 230] [LNIND
2000 AP 230], Y S Rajasekara Reddy v Nara Chandrababu Naidu (1999) 6 Andh LT 406, Y S Rajasekara Reddy v Nara
Chandrababu Naidu (1999) 6 Andh LD 623; Kashinath G Jalani v The Speaker AIR 1993 SC 1873 [LNIND 1993 SC 319]
[LNIND 1993 SC 319] [LNIND 1993 SC 319], Kashinath G Jalani v The Speaker AIR 1993 SCW 1578, Kashinath G Jalani v
The Speaker (1993) 3 SCC 703 (ordinarily, no action would lie against a person who holds elected office by virtue of an election
and one who is not removable by the elector cannot be removed by issuance of a writ in the nature of quo warranto, unless one
has incurred the disqualification to hold the elected office, specifically provided by the Constitution or any statutory law enacted
thereunder; disqualification cannot be read into the Constitution implicitly or by process of reasoning and presumptions, how so
ever moralistic, ethical, desirable, high sounding they may be).
1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi [1975] 2 SCR 619 (there are strong
reasons to treat professorship in a university a public office just as vice chancellorship is, as both are equally substantive
offices; a university is established by law and functions according to rules and statutes having the force of law and it is
maintained by government grants). See also Ram Singh Saini v H N Bhargava AIR 1975 SC 1852 [LNIND 1975 SC 234]
[LNIND 1975 SC 234] [LNIND 1975 SC 234], Ram Singh Saini v H N Bhargava (1975) 4 SCC 676 [LNIND 1975 SC 234]
[LNIND 1975 SC 234] [LNIND 1975 SC 234], Ram Singh Saini v H N Bhargava [1976] 1 SCR 148 [LNIND 1975 SC 234]
[LNIND 1975 SC 234] [LNIND 1975 SC 234].
12 State of Haryana v Haryana Co op Transport AIR 1977 SC 237 [LNIND 1976 SC 463] [LNIND 1976 SC 463] [LNIND 1976
SC 463], State of Haryana v Haryana Co op Transport (1977) 1 SCC 271 [LNIND 1976 SC 463] [LNIND 1976 SC 463] [LNIND
1976 SC 463], State of Haryana v Haryana Co op Transport [1977] 2 SCR 306 [LNIND 1976 SC 463] [LNIND 1976 SC 463]
[LNIND 1976 SC 463](a person can challenge an award of a labour court under the Constitution of India art 226 by challenging
the appointment of the presiding officer thereof on the ground that he was not qualified under the law to hold the office; the court
ruled that the appointment was not being challenged collaterally in proceedings taken to challenge the award but directly in
substantive proceedings; the court not only quashed the appointment of the presiding officer but also set aside the award given
by him.
412
Page 9
13 Gokaraju Rangaraju v State of Andhra Pradesh AIR 1981 SC 1473 [LNIND 1981 SC 236] [LNIND 1981 SC 236] [LNIND
1981 SC 236], Gokaraju Rangaraju v State of Andhra Pradesh (1981) 3 SCC 132 [LNIND 1981 SC 236] [LNIND 1981 SC 236]
[LNIND 1981 SC 236], Gokaraju Rangaraju v State of Andhra Pradesh [1981] 3 SCR 474 [LNIND 1981 SC 236] [LNIND 1981
SC 236] [LNIND 1981 SC 236].

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(3) MANDAMUS/[005.283] Generally
[005.283] Generally Mandamus is a command issued by a court, commanding a public authority to perform
a public duty belonging to its office1. It is issued to direct any person, corporation, inferior court or
government requiring him or it to do some particular thing specified therein which appertains to his or its
office and is in the nature of a public duty.
The essence of mandamus in that it is a command ordering the performance of a public legal duty2.
Mandamus is also issued to keep the subordinate bodies and officers exercising public functions within the
limits of their jurisdiction.
1 The Comptroller & Auditor General of India, Gian Prakash, New Delhi v KS Jagannathan AIR 1987 SC 537 [LNIND 1986 SC
96] [LNIND 1986 SC 96] [LNIND 1986 SC 96], The Comptroller & Auditor General of India, Gian Prakash, New Delhi v KS
Jagannathan (1986) 2 SCC 679 [LNIND 1986 SC 96] [LNIND 1986 SC 96] [LNIND 1986 SC 96], The Comptroller & Auditor
General of India, Gian Prakash, New Delhi v KS Jagannathan (1986) 2 SCJ 1 [LNIND 1986 SC 96] [LNIND 1986 SC 96]
[LNIND 1986 SC 96]; Samir Kumar Das v State of Bihar AIR 1982 Pat 66, Samir Kumar Das v State of Bihar (1981) Pat LJR
490, Samir Kumar Das v State of Bihar (1981) BLJR 578; Chet Ram Vashist v Municipal Corporation of Delhi AIR 1981 SC 653
[LNIND 1980 SC 439] [LNIND 1980 SC 439] [LNIND 1980 SC 439], Chet Ram Vashist v Municipal Corporation of Delhi [1980] 4
SCC 647 [LNIND 1980 SC 439] [LNIND 1980 SC 439] [LNIND 1980 SC 439], Chet Ram Vashist v Municipal Corporation of
Delhi (1981) UJ 95; The Bihar Eastern Gangetic Fishermen Co operative Society v Sipahi Singh AIR 1977 SC 2149 [LNIND
1977 SC 261] [LNIND 1977 SC 261] [LNIND 1977 SC 261], The Bihar Eastern Gangetic Fishermen Co operative Society v
Sipahi Singh (1977) 4 SCC 145 [LNIND 1977 SC 261] [LNIND 1977 SC 261] [LNIND 1977 SC 261], The Bihar Eastern
Gangetic Fishermen Co operative Society v Sipahi Singh (1977) UJ 586; Saraswati Industrial Syndicate Ltd v Union of India
AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], Saraswati Industrial Syndicate Ltd v
Union of India (1974) 2 SCC 630 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], Saraswati Industrial
Syndicate Ltd v Union of India (1974) SCD 913; State of Mysore v K N Chandrasekhara AIR 1965 SC 532 [LNIND 1964 SC
639] [LNIND 1964 SC 639] [LNIND 1964 SC 639], State of Mysore v K N Chandrasekhara (1965) 1 SCJ 702, State of Mysore v
K N Chandrasekhara (1965) SCD 243; K N Guruswamy v State of Mysore AIR 1954 SC 592 [LNIND 1954 SC 104] [LNIND
1954 SC 104] [LNIND 1954 SC 104], K N Guruswamy v State of Mysore [1955] 1 SCR 305 [LNIND 1954 SC 104] [LNIND 1954
SC 104] [LNIND 1954 SC 104], K N Guruswamy v State of Mysore (1954) SCJ 644 [LNIND 1954 SC 104] [LNIND 1954 SC
104] [LNIND 1954 SC 104].
2 K V Rajalakshmiah Setty v State of Mysore AIR 1967 SC 993 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND 1966 SC
288], K V Rajalakshmiah Setty v State of Mysore [1967] 2 SCR 70 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND 1966
SC 288], K V Rajalakshmiah Setty v State of Mysore (1967) 2 SCJ 464 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND
1966 SC 288]; Parry and Co Ltd v Commercial Employees Association, Madras AIR 1952 SC 179 [LNIND 1952 SC 25] [LNIND
1952 SC 25] [LNIND 1952 SC 25], Parry and Co Ltd v Commercial Employees Association, Madras [1952] SCR 519 [LNIND
1952 SC 25] [LNIND 1952 SC 25] [LNIND 1952 SC 25], Parry and Co Ltd v Commercial Employees Association, Madras (1952)
SCJ 275 [LNIND 1952 SC 25] [LNIND 1952 SC 25] [LNIND 1952 SC 25].

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(3) MANDAMUS/[005.284] Conditions precedent to
mandamus
[005.284] Conditions precedent to mandamus The existence of a legal right in the petitioner and
corresponding legal duty on the respondent are conditions precedent for issuing a writ of mandamus1. In
order to obtain a writ or order in the nature of mandamus, the applicant has to satisfy that he has a legal right
to the performance of a legal duty by the party against whom mandamus is sought and such right must be
413
Page 10
subsisting on the date of the petition2. If the petitioner has no subsisting legally enforceable right on the date
of filing the petition for the writ, the high court cannot issue mandamus. A person cannot ask for a
mandamus, unless he has a legal right to it3.
A party seeking the issue of mandamus against an administrative authority must first call upon the authority
concerned to do justice by performing its legal obligation and he must show that the authority has refused or
neglected to carry out its duty within a reasonable time before applying for mandamus even where the
alleged obligation is established4.
The demand for justice is not a matter of form but a matter of substance and it is necessary that a proper and
sufficient demand be made5. Demand may not be necessary where it is obvious that the respondent would
not comply with it and therefore it would be but an idle formality6.
1 Mani Subrat Jain v State of Haryana AIR 1977 SC 276 [LNIND 1976 SC 477] [LNIND 1976 SC 477] [LNIND 1976 SC 477],
Mani Subrat Jain v State of Haryana (1977) 1 SCC 486 [LNIND 1976 SC 477] [LNIND 1976 SC 477] [LNIND 1976 SC 477],
Mani Subrat Jain v State of Haryana (1977) 1 SCJ 455 [LNIND 1976 SC 477] [LNIND 1976 SC 477] [LNIND 1976 SC 477];
Hochtief Gammon v State of Orissa AIR 1975 SC 2226 [LNIND 1975 SC 322] [LNIND 1975 SC 322] [LNIND 1975 SC 322],
Hochtief Gammon v State of Orissa (1975) 2 SCC 649 [LNIND 1975 SC 322] [LNIND 1975 SC 322] [LNIND 1975 SC 322],
Hochtief Gammon v State of Orissa [1976] 1 SCR 667 [LNIND 1975 SC 322] [LNIND 1975 SC 322] [LNIND 1975 SC 322]; Rai
Shivendra Bahadur v Governing Body of the Nalanda College, Bihar Sharif AIR 1962 SC 1210 [LNIND 1961 SC 391] [LNIND
1961 SC 391] [LNIND 1961 SC 391], Rai Shivendra Bahadur v Governing Body of the Nalanda College, Bihar Sharif [1962]
Supp 2 SCR 144, Rai Shivendra Bahadur v Governing Body of the Nalanda College, Bihar Sharif (1962) 2 SCJ 208 [LNIND
1961 SC 391] [LNIND 1961 SC 391] [LNIND 1961 SC 391] (when the governing body of a college appointed a new principal
after interviewing the candidates and considering their applications, mandamus would not be issued on the petition of an
unsuccessful candidate as he has no legal right to be appointed); Andhra Pradesh State Road Transport Corpn v Transport
Commissioner, Hyderabad AIR 2002 AP 252.
2 Director of Settlements, Andhra Pradesh v M R Apparao (2002) 4 SCC 638 [LNIND 2002 SC 232] [LNIND 2002 SC 232]
[LNIND 2002 SC 232](one of the conditions exercising power under the Constitution of India art 226 for issuance of a
mandamus is that the Court must come to the conclusion that the aggrieved person has a legal right, which entitles him to any
of the rights and that right has been infringed; in other words, existence of a legal right of a citizen and performance of any
corresponding legal duty by the State or any public authority, could be enforced by issuance of writ of mandamus); State of
Uttar Pradesh v Harish Chandra AIR 1996 SC 2173 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624] [LNIND 1996 SC 2624], at
2175, State of Uttar Pradesh v Harish Chandra (1996) 9 SCC 309 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624] [LNIND 1996
SC 2624], State of Uttar Pradesh v Harish Chandra (1996) 4 JT 414 (the Supreme Court reversed the high court for issuing
mandamus when the petitioner had no subsisting enforceable legal right).
2624], at 2175, State of Uttar Pradesh v Harish Chandra (1996) 9 SCC 309 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624]
[LNIND 1996 SC 2624], State of Uttar Pradesh v Harish Chandra (1996) 4 JT 414; State of Kerala v A Lakshmikutty AIR 1987
SC 331 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428], 345, State of Kerala v A Lakshmikutty (1987) 4
SCC 632, State of Kerala v A Lakshmikutty (1986) JT 819 [LNIND 1986 SC 428] [LNIND 1986 SC 428] [LNIND 1986 SC 428].
4 State of Haryana v Chaman Mal AIR 1976 SC 1654 [LNIND 1976 SC 104] [LNIND 1976 SC 104] [LNIND 1976 SC 104];
Kamini Kumar Das Choudhury v State of West Begal AIR 1972 SC 2060 [LNIND 1972 SC 325] [LNIND 1972 SC 325] [LNIND
1972 SC 325], Kamini Kumar Das Choudhury v State of West Begal (1972) 2 SCC 420 [LNIND 1972 SC 325] [LNIND 1972 SC
325] [LNIND 1972 SC 325], Kamini Kumar Das Choudhury v State of West Begal [1973] 1 SCR 718 [LNIND 1972 SC 325]
[LNIND 1972 SC 325] [LNIND 1972 SC 325]; Saraswati Industrial Syndicate Ltd v Union of India AIR 1975 SC 460 [LNIND
1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], Saraswati Industrial Syndicate Ltd v Union of India (1974) 2 SCC
630 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974 SC 257], Saraswati Industrial Syndicate Ltd v Union of India
(1974) SCD 913; Amrit Lal Berry v Collector of Central Excise, Central Revenue AIR 1975 SC 538 [LNIND 1974 SC 404]
[LNIND 1974 SC 404] [LNIND 1974 SC 404], Amrit Lal Berry v Collector of Central Excise, Central Revenue (1975) SCC (Lab)
412, Amrit Lal Berry v Collector of Central Excise, Central Revenue (1975) Lab IC 363; Saraswati Industrial Syndicate Ltd v
Industrial Syndicate Ltd v Union of India (1974) SCD 913 (as a general rule the order will not be granted unless the party
complained of has known what it was he was required to do, so that he had the means of considering whether or not he must
comply and it must be shown by evidence that there was a distinct demand of that which the party seeking the mandamus
desires to enforce and that the demand was met by a refusal).
5 Amrit Lal Berry v Collector of Central Excise, Central Revenue AIR 1975 SC 538 [LNIND 1974 SC 404] [LNIND 1974 SC
404] [LNIND 1974 SC 404], Amrit Lal Berry v Collector of Central Excise, Central Revenue (1975) SCC (Lab) 412, Amrit Lal
Berry v Collector of Central Excise, Central Revenue (1975) Lab IC 363 (where a civil servant approached the court for
mandamus against wrongful denial of promotion, he was denied the relief because of his failure to make representation to the
government against injustice); The Statesman Ltd v Fact Finding Committee AIR 1975 Cal 14 [LNIND 1974 CAL 92] [LNIND
414
Page 11
1974 CAL 92] [LNIND 1974 CAL 92]; Rajendran v Home Secretary AIR 1983 Ker 59 [LNIND 1982 KER 111] [LNIND 1982 KER
111] [LNIND 1982 KER 111], Rajendran v Home Secretary (1982) Ker LT 474 [LNIND 1982 KER 111] [LNIND 1982 KER 111]
[LNIND 1982 KER 111], Rajendran v Home Secretary (1982) Ker LJ 326; S V Purushotaman v State of Kerala AIR 1983 Ker
118; RXA de Monte Furtado v Administrator, Goa, Daman and Diu AIR 1982 Goa 34, RXA de Monte Furtado v Administrator,
Goa, Daman and Diu (1982) 2 Soru LJ 103.
6 Narayan Singh v State of Rajasthan AIR 1984 Raj 69, Narayan Singh v State of Rajasthan (1984) Rajasthan LR 72. See
contra Bhuvaneshwar Prasad v State of Bihar AIR 1995 Pat 1.

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(3) MANDAMUS/[005.285] Nature of duty involved
[005.285] Nature of duty involved Mandamus is employed to enforce a duty, the performance of which is
imperative and not optional or discretionary with the authority concerned1. Mandamus is not issued when
government is under no duty under the law2. Therefore, if an officer has power, rather than a duty and if he
does not use his power, mandamus is not issued to compel him to exercise his power. However, mandamus
can be issued if he refuses to exercise his power for wrong reasons or denies having a power which he infact
has under the law3. For example, when a body omits to decide a matter that it is bound to decide under the
law; it can be commanded to decide the same by issuing mandamus4. Mandamus can be issued when the
government denies to itself a jurisdiction that it undoubtedly has under the law5.
Usually, the use of the word 'shall' or 'must' indicates a mandatory duty on part of the concerned authority,
however, this is not conclusive and these words may be interpreted as 'may'. On the other hand, at times, the
word 'may' may be interpreted as shall. What is determinative of the nature of duty, whether it is obligatory,
mandatory or directory, is the scheme of the statute in which the duty has been set out. Even if the duty is
not set out clearly and specifically in the statute, it may be implied as correlative to a right6. For example, a
mandamus can be issued directing the executive to do its legal duty by implementing the order of a tribunal7.
When an authority fails in its legal duty to implement an order of a tribunal, mandamus can be issued
directing the authority to do so8. Mandamus can be issued to compel an income tax officer to carry out the
instructions issued by the income tax appellate tribunal exercising its appellate power9. Again, it can be
issued to a municipality to discharge its statutory duty to provide for drains and sewers10.
Mandamus is issued to enforce a mandatory duty that may not necessarily be a statutory duty11. In
appropriate cases, courts have the power to compel the performance of an obligation imposed by a
non-statutory scheme or administrative instructions upon concerned authorities12. Thus, the duty that may be
enjoined by mandamus may be one imposed by the Constitution, a statute, common law or by rules or
orders having the force of law13. The courts are usually reluctant to issue mandamus when it comes to
compelling a public authority to perform a public duty of a general nature as availability of resources has a
material bearing in such issues14. However, when no such expertise was needed on the part of the court in
enforcing a public duty, the court may have no hesitation in issuing the writ15.
1 Chingleput Bottlers v Majestic Bottling Co AIR 1984 SC 1030 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79],
Chingleput Bottlers v Majestic Bottling Co (1984) 3 SCC 258 [LNIND 1984 SC 79] [LNIND 1984 SC 79] [LNIND 1984 SC 79].
2 Ranjan Dwivedi v Union India AIR 1983 SC 624 [LNIND 1983 SC 126] [LNIND 1983 SC 126] [LNIND 1983 SC 126], Ranjan
Dwivedi v Union India (1983) 3 SCC 307 [LNIND 1983 SC 126] [LNIND 1983 SC 126] [LNIND 1983 SC 126], Ranjan Dwivedi v
Union India (1983) SCC Cr 581; State of Bihar v Sri Chandradip Rai AIR 1981 SC 2071, State of Bihar v Sri Chandradip Rai
(1982) 2 SCC 272; The Bihar Eastern Gangetic Fishermen Co operative Society v Sipahi Singh AIR 1977 SC 2149 [LNIND
1977 SC 261] [LNIND 1977 SC 261] [LNIND 1977 SC 261], The Bihar Eastern Gangetic Fishermen Co operative Society v
Sipahi Singh (1977) 4 SCC 145 [LNIND 1977 SC 261] [LNIND 1977 SC 261] [LNIND 1977 SC 261], The Bihar Eastern
Gangetic Fishermen Co operative Society v Sipahi Singh (1977) UJ 586; State of Andhra Pradesh v T Gopalakrishnan Murthy
AIR 1976 SC 123 [LNIND 1975 SC 362] [LNIND 1975 SC 362] [LNIND 1975 SC 362], State of Andhra Pradesh v T
Gopalakrishnan Murthy (1976) 2 SCC 83, State of Andhra Pradesh v T Gopalakrishnan Murthy (1976) 1 SCR 1008 [LNIND
415
Page 12
3 Municipal Corporation for Greater Bombay v Advance Builders AIR 1972 SC 793 [LNIND 1971 SC 411] [LNIND 1971 SC
411] [LNIND 1971 SC 411], Municipal Corporation for Greater Bombay v Advance Builders (1971) 3 SCC 381 [LNIND 1971 SC
411] [LNIND 1971 SC 411] [LNIND 1971 SC 411], Municipal Corporation for Greater Bombay v Advance Builders [1972] 1 SCR
408 [LNIND 1971 SC 411] [LNIND 1971 SC 411] [LNIND 1971 SC 411]; Corborandum Universal Ltd, Madras v Union of India
AIR 1966 Mad 365 [LNIND 1965 MAD 249] [LNIND 1965 MAD 249] [LNIND 1965 MAD 249], Corborandum Universal Ltd,
Madras v Union of India (1966) 2 Mad LJ 129, Corborandum Universal Ltd, Madras v Union of India (1966) 2 ITJ 65; KL Modi v
Union of India AIR 1970 Del 76 [LNIND 1969 DEL 74] [LNIND 1969 DEL 74] [LNIND 1969 DEL 74]; Lodna Colliery Co (1920)
Ltd v NB Roy AIR 1968 Cal 545 [LNIND 1967 CAL 148] [LNIND 1967 CAL 148] [LNIND 1967 CAL 148], Lodna Colliery Co
(1920) Ltd v NB Roy 72 Cal WN 679; Rampal v State of Rajasthan AIR 1981 Raj 121, Rampal v State of Rajasthan (1980) Raj
LW 395.
4 K V Rajalakshmiah Setty v State of Mysore AIR 1967 SC 993 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND 1966 SC
288], K V Rajalakshmiah Setty v State of Mysore [1967] 2 SCR 70 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND 1966
SC 288], K V Rajalakshmiah Setty v State of Mysore (1967) 2 SCJ 464 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND
1966 SC 288]; State of Mysore v K N Chandrasekhara AIR 1965 SC 532 [LNIND 1964 SC 639] [LNIND 1964 SC 639] [LNIND
1964 SC 639], State of Mysore v K N Chandrasekhara (1965) 1 SCJ 702, State of Mysore v K N Chandrasekhara (1965) SCD
243.
5 Everest Apartments Co operative Housing Society Ltd, Bombay v State of Maharashtra AIR 1966 SC 1449 [LNIND 1966 SC
24] [LNIND 1966 SC 24] [LNIND 1966 SC 24], Everest Apartments Co operative Housing Society Ltd, Bombay v State of
Maharashtra [1966] 3 SCR 365 [LNIND 1966 SC 24] [LNIND 1966 SC 24] [LNIND 1966 SC 24], Everest Apartments Co
operative Housing Society Ltd, Bombay v State of Maharashtra (1966) 2 SCJ 498 [LNIND 1966 SC 24] [LNIND 1966 SC 24]
[LNIND 1966 SC 24].
6 Mansukhlal Vithaldas Chauhan v State of Gujarat AIR 1997 SC 3400 [LNIND 1997 SC 1158] [LNIND 1997 SC 1158]at 3405,
Mansukhlal Vithaldas Chauhan v State of Gujarat (1997) 7 SCC 622 [LNIND 1997 SC 1158] [LNIND 1997 SC 1158],
Mansukhlal Vithaldas Chauhan v State of Gujarat (1997) 3 SCJ 19.
7 Sharif Ahmad v The Regional Transport Authority, Meerut AIR 1978 SC 209 [LNIND 1977 SC 301] [LNIND 1977 SC 301]
[LNIND 1977 SC 301], Sharif Ahmad v The Regional Transport Authority, Meerut (1978) 1 SCC 1 [LNIND 1977 SC 301] [LNIND
1977 SC 301] [LNIND 1977 SC 301], Sharif Ahmad v The Regional Transport Authority, Meerut [1978] 1 SCR 761 [LNIND 1977
8 Sharif Ahmad v The Regional Transport Authority, Meerut AIR 1978 SC 209 [LNIND 1977 SC 301] [LNIND 1977 SC 301]
[LNIND 1977 SC 301], Sharif Ahmad v The Regional Transport Authority, Meerut (1978) 1 SCC 1 [LNIND 1977 SC 301] [LNIND
1977 SC 301] [LNIND 1977 SC 301], Sharif Ahmad v The Regional Transport Authority, Meerut [1978] 1 SCR 761 [LNIND 1977
SC 301] [LNIND 1977 SC 301] [LNIND 1977 SC 301] (when the appellate transport tribunal accepted the applications of the
petitioner for grant of permits, mandamus was issued to the concerned authority to issue the permits to the petitioner in terms of
the tribunal order).
9 Bhopal Sugar Industries Ltd v Income Tax Officer, Bhopal AIR 1961 SC 182 [LNIND 1960 SC 190] [LNIND 1960 SC 190]
[LNIND 1960 SC 190], Bhopal Sugar Industries Ltd v Income Tax Officer, Bhopal [1961] 1 SCR 474 [LNIND 1960 SC 190]
[LNIND 1960 SC 190] [LNIND 1960 SC 190], Bhopal Sugar Industries Ltd v Income Tax Officer, Bhopal (1961) 1 SCJ 191
10 Rampal v State of Rajasthan AIR 1981 Raj 121, Rampal v State of Rajasthan (1980) Raj LW 395; Municipal Corporation for
Greater Bombay v Advance Builders (India) Pvt Ltd AIR 1972 SC 793 [LNIND 1971 SC 411] [LNIND 1971 SC 411] [LNIND
1971 SC 411], Municipal Corporation for Greater Bombay v Advance Builders (India) Pvt Ltd (1971) 3 SCC 381 [LNIND 1971
SC 411] [LNIND 1971 SC 411] [LNIND 1971 SC 411], Municipal Corporation for Greater Bombay v Advance Builders (India) Pvt
Ltd [1972] 1 SCR 408 [LNIND 1971 SC 411] [LNIND 1971 SC 411] [LNIND 1971 SC 411].
11 Samir Kumar Das v State of Bihar AIR 1982 Pat 66, Samir Kumar Das v State of Bihar (1981) Pat LJR 490, Samir Kumar
Das v State of Bihar (1981) BLJR 578 (mandamus issued to state medical colleges to fill the vacant seats from amongst the
eligible candidates); Consumer Education and Research Centre v Gujarat (writ issued to the government to release the grant to
the centre under the Grant in aid Scheme, framed by the government); Ghanashyam Misra v Orissa Association of Sanskrit
Learning & Culture AIR 1971 Ori 212 [LNIND 1969 ORI 26] [LNIND 1969 ORI 26] [LNIND 1969 ORI 26].
12 Jiwat Bai & Sons v GC Batra AIR 1976 Del 310 [LNIND 1976 DEL 15] [LNIND 1976 DEL 15] [LNIND 1976 DEL 15], Jiwat
Bai & Sons v GC Batra (1976) Rajdhani LR 374, Jiwat Bai & Sons v GC Batra (1976) 8 Pun LR (D) 159.
13 Director of Settlements, AP v MR Apparao (2002) 4 SCC 638 [LNIND 2002 SC 232] [LNIND 2002 SC 232] [LNIND 2002 SC
232].
14 P Nalla Thampy Thera v Union of India AIR 1984 SC 74 [LNIND 1983 SC 320] [LNIND 1983 SC 320] [LNIND 1983 SC 320],
P Nalla Thampy Thera v Union of India (1983) 4 SCC 598 [LNIND 1983 SC 320] [LNIND 1983 SC 320] [LNIND 1983 SC 320],
P Nalla Thampy Thera v Union of India (1984) UJ 42 (a railway commuter filed a petition against the Indian railways for
improving the railway services; declining to issue any directions in the matter, though it recognised that there was much to be
desired in the services provided by the railways).
15 Mani Subrat Jain v State of Haryana AIR 1977 SC 276 [LNIND 1976 SC 477] [LNIND 1976 SC 477] [LNIND 1976 SC 477],
Mani Subrat Jain v State of Haryana (1977) 1 SCC 486 [LNIND 1976 SC 477] [LNIND 1976 SC 477] [LNIND 1976 SC 477],
416
Page 13
Mani Subrat Jain v State of Haryana (1977) 1 SCJ 455 [LNIND 1976 SC 477] [LNIND 1976 SC 477] [LNIND 1976 SC 477];
Municipal Corporation for Greater Bombay v Advance Builders (India) Pvt Ltd AIR 1972 SC 793 [LNIND 1971 SC 411] [LNIND
1971 SC 411] [LNIND 1971 SC 411], Municipal Corporation for Greater Bombay v Advance Builders (India) Pvt Ltd (1971) 3
SCC 381 [LNIND 1971 SC 411] [LNIND 1971 SC 411] [LNIND 1971 SC 411], Municipal Corporation for Greater Bombay v
Advance Builders (India) Pvt Ltd [1972] 1 SCR 408 [LNIND 1971 SC 411] [LNIND 1971 SC 411] [LNIND 1971 SC 411] (the high
court directed the municipality to implement a town planning scheme which was prepared by it and approved by the government
under the relevant statute but on which no action was taken for a considerable time); Rampal v State of Rajasthan AIR 1981
Raj 121, Rampal v State of Rajasthan (1980) Raj LW 395 (the high court directed a municipality to perform its duties of
providing a proper system for the flow of filth and removal of filth and rubbish from public places).

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(3) MANDAMUS/[005.286] Function of mandamus
[005.286] Function of mandamus The function of mandamus is to keep the public authorities within the
limits of their jurisdiction while exercising public functions and mandamus can be issued to any kind of public
authority in respect of any type of function administrative, quasi judicial, judicial or legislative or even a local
body. Thus, when the telephone of the applicant was wrongfully disconnected inspite of his paying his dues
regularly, the high court directed the telephone authorities to restore the connection within a week1.
Mandamus can be issued to undo what has already been done in contravention of a statute or to enforce a
duty to abstain from acting unlawfully2. For example, mandamus can be issued to restrain the government
from superseding a reference made earlier by it, of an industrial dispute, for adjudication to a labour tribunal
because under the law the government has no authority to do so3.
1 Birendra Kumar Bhuwalka v Union of India AIR 1983 Cal 273 [LNIND 1983 CAL 77] [LNIND 1983 CAL 77] [LNIND 1983 CAL
77], Birendra Kumar Bhuwalka v Union of India (1983) 1 Cal HN 303.
2 These restrictions on mandamus operate formally in England. However, at times, the courts bypass them. Thus, the courts
may treat the unlawful act as a nullity and order the competent authority to perform its duty as if it had refused to act at all in the
first place. Again, the distinction between duty to act lawfully and duty not to act unlawfully may be very fine: see De Smith,
'Judicial Review of Administrative Action' (1980)p 542.
3 State of Bihar v D N Ganguly AIR 1958 SC 1018 [LNIND 1958 SC 92] [LNIND 1958 SC 92] [LNIND 1958 SC 92], State of
Bihar v D N Ganguly (1958) SCA 1082, State of Bihar v D N Ganguly (1958) 2 Lab LJ 634; Mira Chatterjee v Public Service
Commission AIR 1958 Cal 345 [LNIND 1958 CAL 93] [LNIND 1958 CAL 93] [LNIND 1958 CAL 93], Mira Chatterjee v Public
Service Commission 62 Cal WN 429; Nanak Chand v State of Uttar Pradesh AIR 1955 All 165 [LNIND 1954 ALL 223] [LNIND
1954 ALL 223] [LNIND 1954 ALL 223].

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(3) MANDAMUS/[005.287] Discretionary remedy
[005.287] Discretionary remedy Mandamus is not a writ of course or a writ of right but is a discretionary
remedy and the high court has full discretion to refuse to issue the writ in unsuitable cases1.
A mandamus cannot be issued:
(1) against the government directing it to give its approval to the rules made by the Chief Justice
regarding salaries of the staff the high court as there is no obligation on the government to
approve these rules2;
(2) against the government directing it to reserve posts for backward classes3;
(3) to direct the government to refrain from enforcing the provisions of law or to do something
which is contrary to law4;
(4) to compel an authority to pass an order in violation of a statutory provision, though a writ of
417
Page 14
mandamus can be issued to a statutory authority to compel it to perform its statutory

obligation5;
(5) when the administration has once committed a mistake6;
(6) to a person who is not aggrieved7;
(7) to the state government directing it to appoint a commission to inquire into changes in climatic
cycle, floods in the state because the government's power to appoint a commission is
discretionary and optional8;
(8) to the government directing it to bring a statue into force9;
(9) directing a delegated legislative authority to make rules in furtherance of a statutory
provision10;
(10) if the right is purely of a private character as the proper course in such cases is a civil suit
seeking such remedies as damages, injunctions, specific performance or declarations11, except
when the matter falls in the public law domain12;
(11) to enforce a payment of money due to the claimant under a civil liability, however, an order to
pay money may be made against the State to enforce a statutory obligation13.
Ordinarily, mandamus is an inappropriate remedy where a person claims damages against the government
for its tortious action14.
Generally, any duty or obligation falling upon a public servant out of a contract entered into by him as such
public servant cannot be enforced through the machinery of mandamus15. However, even in contractual
matters, public authorities have to act fairly and if they fail to do so, a writ petition may lie16. Thus, recourse
may be had to mandamus if a public authority acts in an arbitrary and unlawful manner even though the
source of the right of the petitioner may initially be in a contract17. Even if the rights of the citizens are in the
nature of contractual rights, the manner, method and motive of a decision of entering or not entering into a
contract, are subject to judicial review on the touchstone of relevance, reasonableness, fair play, natural
justice, equality and non discrimination18.
While the Court does not interfere with government's freedom of contract, invitation of tenders and refusal of
any tender which pertains to policy matter, the Court can interfere when the state decision or action is
vitiated by arbitrariness, unfairness, illegality, irrationality or unreasonableness19.
Mandamus may be issued to give relief by ordering the refund of tax where the petitioner is challenging the
validity of the law imposing the tax20 or the validity of an order of assessment21 or it may be issued where a
statute expressly provides for refund of the tax illegally collected22. This however, depends on the
circumstances of each case23. For instance, mandamus would not issue merely for refund of money due
from the state on account of its having made an illegal exaction and for this purpose a suit must be filed in a
civil court24.
Mandamus cannot be denied on the ground that the duty to be enforced is not imposed by statute. In order
to be enforceable by mandamus, a public duty need not necessarily be the one imposed by a statute. It may
be sufficient for the duty to have been imposed by a charter, common law, custom or even a contract25.
1 Jagdish Prasad v Municipal Corpn of Delhi, through Commissioner AIR 1993 SC 1254, Jagdish Prasad v Municipal Corpn of
Delhi, through Commissioner (1993) Supp 2 SCC 221, Jagdish Prasad v Municipal Corpn of Delhi, through Commissioner
(1993) 1 UJ 267 (the Supreme Court refused to issue mandamus to enforce the claim of the municipal employees for transfer of
ownership of municipal quarters to them because they had no legal right thereto); K V Rajalakshmiah Setty v State of Mysore
AIR 1967 SC 993 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND 1966 SC 288], K V Rajalakshmiah Setty v State of
Mysore [1967] 2 SCR 70 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND 1966 SC 288], K V Rajalakshmiah Setty v State
of Mysore (1967) 2 SCJ 464 [LNIND 1966 SC 288] [LNIND 1966 SC 288] [LNIND 1966 SC 288]; State of Madhya Pradesh v
GC Mandavar AIR 1954 SC 493 [LNIND 1954 SC 90] [LNIND 1954 SC 90] [LNIND 1954 SC 90], State of Madhya Pradesh v
GC Mandavar [1955] 1 SCR 599 [LNIND 1954 SC 90] [LNIND 1954 SC 90] [LNIND 1954 SC 90], State of Madhya Pradesh v
GC Mandavar (1954) SCJ 503 [LNIND 1954 SC 90] [LNIND 1954 SC 90] [LNIND 1954 SC 90] (the Government of Madhya
Pradesh made a rule making it a matter of its discretion to grant dearness allowance to its employees; as no right was conferred
on government servants to the grant of dearness allowance and no duty was imposed on the government to grant it and as the
government had merely taken the power to grant the allowance at its own discretion, mandamus could not be issued to compel
the government to exercise its discretionary power); State of Kerala v Kottarakkara Public Works Skilled Workers Labour
418
Page 15
Contract Co-operative Society Ltd AIR 2001 Ker 60; Rajashekhar v State of Karnataka AIR 2000 Kant 215 [LNIND 1999 KANT
38] [LNIND 1999 KANT 38] [LNIND 1999 KANT 38], Rajashekhar v State of Karnataka (1999) ILR Kant 374, Rajashekhar v
State of Karnataka (1999) 6 Kant LJ 219.
2 State of Bihar v Sri Chandradip Rai AIR 1981 SC 2071, State of Bihar v Sri Chandradip Rai (1982) 2 SCC 272; State of
Andhra Pradesh v T Gopalakrishnan Murthy AIR 1976 SC 123 [LNIND 1975 SC 362] [LNIND 1975 SC 362] [LNIND 1975 SC
362], State of Andhra Pradesh v T Gopalakrishnan Murthy (1976) 2 SCC 83, State of Andhra Pradesh v T Gopalakrishnan
Murthy (1976) 1 SCR 1008 [LNIND 1975 SC 362] [LNIND 1975 SC 362] [LNIND 1975 SC 362]; The Bihar Eastern Gangetic
Fishermen Co operative Society v Sipahi Singh AIR 1977 SC 2149 [LNIND 1977 SC 261] [LNIND 1977 SC 261] [LNIND 1977
SC 261], The Bihar Eastern Gangetic Fishermen Co operative Society v Sipahi Singh (1977) 4 SCC 145 [LNIND 1977 SC 261]
[LNIND 1977 SC 261] [LNIND 1977 SC 261], The Bihar Eastern Gangetic Fishermen Co operative Society v Sipahi Singh
(1977) UJ 586; State of Mysore v Syed Mahmood AIR 1968 SC 1113 [LNIND 1968 SC 60] [LNIND 1968 SC 60] [LNIND 1968
SC 60], State of Mysore v Syed Mahmood (1968) 2 SCJ 713, State of Mysore v Syed Mahmood (1968) Lab 1291.
3 Andhra Pradesh Sarpanchs Association v Government of Andhra Pradesh AIR 2001 AP 474 [LNIND 2001 AP 587] [LNIND
2001 AP 587] [LNIND 2001 AP 587], Andhra Pradesh Sarpanchs Association v Government of Andhra Pradesh (2001) 4 Andh
LD 704, Andhra Pradesh Sarpanchs Association v Government of Andhra Pradesh (2001) 4 Andh LT 309 [LNIND 2001 AP 587]
[LNIND 2001 AP 587] [LNIND 2001 AP 587](the High Court of Andhra Pradesh refused to issue mandamus to the state
government to provide for a policy of reservation because the Constitution of India art 16(4A) is only an enabling provision; if the
state makes no reservation under the Constitution of India art 16(4A), the high court has no jurisdiction under the Constitution of
India art 226 to issue any direction therefor); Ajit Singh v State of Punjab AIR 1999 SC 3471 [LNIND 1999 SC 820] [LNIND
1999 SC 820] [LNIND 1999 SC 820], Ajit Singh v State of Punjab AIR 1990 SCW 3460, Ajit Singh v State of Punjab (1999) 7
4 Ajit Singh v State of Punjab AIR 1999 SC 3471 [LNIND 1999 SC 820] [LNIND 1999 SC 820] [LNIND 1999 SC 820], Ajit Singh
v State of Punjab AIR 1990 SCW 3460, Ajit Singh v State of Punjab (1999) 7 SCC 209 [LNIND 1999 SC 820] [LNIND 1999 SC
820] [LNIND 1999 SC 820]; State of Uttar Pradesh v Harish Chandra AIR 1996 SC 2173 [LNIND 1996 SC 2624] [LNIND 1996
SC 2624] [LNIND 1996 SC 2624], at 2175, State of Uttar Pradesh v Harish Chandra (1996) 9 SCC 309 [LNIND 1996 SC 2624]
[LNIND 1996 SC 2624] [LNIND 1996 SC 2624], State of Uttar Pradesh v Harish Chandra (1996) 4 JT 414.
5 Santosh Kumar Verma v State of Bihar, through Secretary, Department of Urban Development, Government of Bihar, New
Secretariat, Patna AIR 1997 SC 975 [LNINDORD 1997 SC 133] [LNINDORD 1997 SC 133] [LNINDORD 1997 SC 133],
Santosh Kumar Verma v State of Bihar, through Secretary, Department of Urban Development, Government of Bihar, New
Secretariat, Patna (1997) 3 SCC 462 [LNIND 1997 SC 76] [LNIND 1997 SC 76] [LNIND 1997 SC 76], Santosh Kumar Verma v
State of Bihar, through Secretary, Department of Urban Development, Government of Bihar, New Secretariat, Patna (1997) 1
JT 712; Hope Textiles Ltd v India (1995) Supp (3) SCC 199.
2624], State of Uttar Pradesh v Harish Chandra (1996) 9 SCC 309 [LNIND 1996 SC 2624] [LNIND 1996 SC 2624] [LNIND 1996
SC 2624], State of Uttar Pradesh v Harish Chandra (1996) 4 JT 414.
7 Umakant saran v State of Bihar AIR 1973 SC 964 [LNIND 1972 SC 500] [LNIND 1972 SC 500] [LNIND 1972 SC 500],
Umakant saran v State of Bihar (1973) 1 SCC 485 [LNIND 1972 SC 500] [LNIND 1972 SC 500] [LNIND 1972 SC 500],
Umakant saran v State of Bihar (1972) 2 LLJ 580 [LNIND 1972 SC 500] [LNIND 1972 SC 500] [LNIND 1972 SC 500] (the
petitioner contended that persons junior to him in service had been appointed by the Government but his claims had been
ignored; the Supreme Court refused to issue the writ, for the persons appointed were qualified for the posts while the petitioner
himself was not so qualified and so he could not be regarded as a person aggrieved for the purpose of the relief claimed).
8 Ram Krishna Dalmia v Justice S R Tendolkar AIR 1958 SC 538 [LNIND 1958 SC 31] [LNIND 1958 SC 31] [LNIND 1958 SC
31], Ram Krishna Dalmia v Justice S R Tendolkar (1959) SCJ 147, Ram Krishna Dalmia v Justice S R Tendolkar (1959) 1 Mad
LJ (SC) 67; Rajendran v Home Secretary AIR 1983 Ker 59 [LNIND 1982 KER 111] [LNIND 1982 KER 111] [LNIND 1982 KER
111]; Rajinder Kumar v State of Punjab AIR 1983 Punj 285, Rajinder Kumar v State of Punjab (1983) 85 Pun LR 330, Rajinder
Kumar v State of Punjab (1983) 2 P & H 443; Vijay Mehta v State of Rajasthan AIR 1980 Raj 207, Vijay Mehta v State of
Rajasthan (1980) WLN 288, Vijay Mehta v State of Rajasthan (1980) Raj LW 324.
9 Union of India v Shree Gajanan Maharaj Sansthan (2002) 5 SCC 44 [LNIND 2002 SC 346] [LNIND 2002 SC 346] [LNIND
2002 SC 346] (when enforcement of a provision in a statute is left to the discretion of the Government without laying down any
objective standards, no writ of mandamus could be issued directing the Government to consider the question whether the
provision must be brought into force and when it can do so; that delay in implementing the will of Parliament may draw adverse
criticism but it cannot be said that the Government is not alive to the problem or is desirous of ignoring the will of Parliament);
State of Andhra Pradesh v State of Karnataka AIR 2001 SC 1560 [LNIND 2000 SC 727] [LNIND 2000 SC 727] [LNIND 2000 SC
727], State of Andhra Pradesh v State of Karnataka (2000) 9 SCC 572 [LNIND 2000 SC 722] [LNIND 2000 SC 722] [LNIND
2000 SC 722], State of Andhra Pradesh v State of Karnataka (2001) 3 Scale 505 (a mandamus cannot be issued to direct the
Legislature to enact a law on a particular subject, nor to direct a delegated legislative authority to make rules in furtherance of a
statutory provision); RC Poudyal v Union of India AIR 1993 SC 1804, RC Poudyal v Union of India (1994) Supp 1 SCC 324, RC
Poudyal v Union of India [1993] 1 SCR 891; State of Jammu & Kashmir v AR Zakki AIR 1992 SC 1546 [LNIND 1991 SC 663]
[LNIND 1991 SC 663] [LNIND 1991 SC 663], State of Jammu & Kashmir v AR Zakki (1992) Supp 1 SCC 548, State of Jammu
& Kashmir v AR Zakki (1992) 1 JT 59; Union of India v Deoki Nanda Aggarwal AIR 1992 SC 96 [LNIND 1991 SC 432] [LNIND
1991 SC 432] [LNIND 1991 SC 432], Union of India v Deoki Nanda Aggarwal (1992) Supp 1 SCC 323, Union of India v Deoki
Nanda Aggarwal [1991] 3 SCR 873 [LNIND 1991 SC 432] [LNIND 1991 SC 432] [LNIND 1991 SC 432]; Asif Hameed v State of
419
Page 16
Jammu & Kashmir AIR 1989 SC 1899 [LNIND 1989 SC 303] [LNIND 1989 SC 303] [LNIND 1989 SC 303], Asif Hameed v State
of Jammu & Kashmir (1989) Supp 2 SCC 364, Asif Hameed v State of Jammu & Kashmir [1989] 3 SCR 19 [LNIND 1989 SC
303] [LNIND 1989 SC 303] [LNIND 1989 SC 303]; Altemesh Rein, Advocate, Supreme Court of India v Union of India AIR 1988
SC 1768 [LNIND 1988 SC 361] [LNIND 1988 SC 361] [LNIND 1988 SC 361], Altemesh Rein, Advocate, Supreme Court of India
v Union of India (1988) 4 SCC 54 [LNIND 1988 SC 361] [LNIND 1988 SC 361] [LNIND 1988 SC 361], Altemesh Rein,
Advocate, Supreme Court of India v Union of India [1988] Supp 2 SCR 223; AK Roy v Union of India (1982) 1 SCC 271 [LNIND
1981 SC 469] [LNIND 1981 SC 469] [LNIND 1981 SC 469] (the Supreme Court had observed therein that in the absence of any
objective norms, it was not for the court to substitute its own judgment for that of the government; the Court had also
emphasised that the executive being responsible to Parliament, if Parliament considers that the executive has betrayed its trust
by not bringing the Act into force, it can censure the executive); Rajender Singh v Santa Singh AIR 1973 SC 2537 [LNIND 1973
SC 235] [LNIND 1973 SC 235] [LNIND 1973 SC 235]; Common Cause v Union of India AIR 2001 Del 93 [LNIND 2000 DEL
932] [LNIND 2000 DEL 932] [LNIND 2000 DEL 932](Parliament enacted the Delhi Rent Bill 1995 which received the assent of
the President on the 23 August 1995; it was published as the Delhi Rent Act 1995; however, the Act was not brought into force
by the Central Government; consequently, a writ of mandamus was sought from the High Court of Delhi directing the Central
Government to bring the Act into force; the court however declined the request); RK Singh v Union of India AIR 2001 Del 12
[LNIND 2000 DEL 828] [LNIND 2000 DEL 828] [LNIND 2000 DEL 828], RK Singh v Union of India (2000) 88 Del LT 205, RK
Singh v Union of India (2000) 55 Del RJ 279; Andhra Pradesh Sarpanchs Association v Government of Andhra Pradesh AIR
2001 AP 474 [LNIND 2001 AP 587] [LNIND 2001 AP 587] [LNIND 2001 AP 587], Andhra Pradesh Sarpanchs Association v
Government of Andhra Pradesh (2001) 4 Andh LD 704, Andhra Pradesh Sarpanchs Association v Government of Andhra
Pradesh (2001) 4 Andh LT 309 [LNIND 2001 AP 587] [LNIND 2001 AP 587] [LNIND 2001 AP 587]. See however R v Secretary
of State for the Home Department, ex p Fire Brigades Union [1995] 2 All ER 244 (power was given to the Secretary of State to
appoint a day for bringing the Criminal Justice Act 1988, into force; the Act was not brought into force and the matter came
before the House of Lords; the question before the House was whether the Secretary of State had acted unlawfully is not
bringing the Act into force; the House ruled by majority that the Act in question conferred a legislative power, as distinguished
from a duty and that any intervention by the courts would not be appropriate; it was, however, held that the Secretary of State
could not unreasonably refuse to bring the relevant provisions of the said Act into force).
10 State of Jammu & Kashmir v A R Zakki AIR 1992 SC 1546 [LNIND 1991 SC 663] [LNIND 1991 SC 663] [LNIND 1991 SC
663], State of Jammu & Kashmir v A R Zakki (1992) Supp 1 SCC 548, State of Jammu & Kashmir v A R Zakki (1992) 1 JT 59;
Supreme Court Employees Welfare Association v Union of India AIR 1990 SC 334 [LNIND 1989 SC 351] [LNIND 1989 SC 351]
[LNIND 1989 SC 351], Supreme Court Employees Welfare Association v Union of India (1989) 4 SCC 187 [LNIND 1989 SC
351] [LNIND 1989 SC 351] [LNIND 1989 SC 351], Supreme Court Employees Welfare Association v Union of India [1989] 3
11 As to the meaning of a declaration see [005.345]-[005.348]. As to when declarations may or may not be granted see
INJUNCTIONS[170.029] and following.
12 Life Insurance Corporation of India v Asha Goel AIR 2001 SC 549 [LNIND 2000 SC 1870] [LNIND 2000 SC 1870] [LNIND
2000 SC 1870], Life Insurance Corporation of India v Asha Goel (2001) 1 SCJ 291 [LNIND 2000 SC 1870] [LNIND 2000 SC
1870] [LNIND 2000 SC 1870], Life Insurance Corporation of India v Asha Goel (2001) 1 JT 10 [LNIND 2000 SC 1870] [LNIND
2000 SC 1870] [LNIND 2000 SC 1870]; Kerala State Electricity Board v Kurien E Kalathil AIR 2000 SC 22573, Kerala State
Electricity Board v Kurien E Kalathil AIR 2000 SCW 2647, Kerala State Electricity Board v Kurien E Kalathil (2000) 6 SCC 293
[LNIND 2000 SC 936] [LNIND 2000 SC 936]; State of Himachal Pradesh v Raja Mahendra Pal AIR 1995 SC 1786, State of
Himachal Pradesh v Raja Mahendra Pal (1999) 4 SCC 43 [LNIND 1999 SC 328] [LNIND 1999 SC 328] [LNIND 1999 SC 328],
State of Himachal Pradesh v Raja Mahendra Pal AIR (1999) SCW 1376; State of Gujarat v Meghji Pethraj Shah Charitable
Trust, (1994) 3 SCC 552; Food Corpn of India v Jagannath Dutta AIR 1993 SC 1494 [LNIND 1993 SC 230] [LNIND 1993 SC
230] [LNIND 1993 SC 230], Food Corpn of India v Jagannath Dutta (1993) 3 SCC Supp 635, Food Corpn of India v Jagannath
Dutta AIR (1993) SCW 1425; Life Insurance Corporation of India v Escorts Ltd AIR 1986 SC 1370 [LNIND 1985 SC 362]
[LNIND 1985 SC 362] [LNIND 1985 SC 362], Life Insurance Corporation of India v Escorts Ltd (1986) 1 SCC 264 [LNIND 1985
SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], Life Insurance Corporation of India v Escorts Ltd [1985] Supp 3 SCR
909; Divisional Forest Officer v Biswanath Tea Co Ltd AIR 1981 SC 1368 [LNIND 1981 SC 271] [LNIND 1981 SC 271] [LNIND
1981 SC 271], Divisional Forest Officer v Biswanath Tea Co Ltd (1981) 3 SCC 143 [LNIND 1981 SC 251] [LNIND 1981 SC 251]
[LNIND 1981 SC 251], Divisional Forest Officer v Biswanath Tea Co Ltd (1981) SCC Tax 199; Radhakrishna Agarwal v State
of Bihar AIR 1977 SC 1496 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna Agarwal v State
of Bihar (1977) 3 SCC 457 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna Agarwal v State
of Bihar [1977] 3 SCR 249 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137]; Dhanyalakshmi Rice Mills v
Commissioner of Civil Supplies AIR 1976 SC 2243 [LNIND 1976 SC 51] [LNIND 1976 SC 51] [LNIND 1976 SC 51],
Dhanyalakshmi Rice Mills v Commissioner of Civil Supplies (1976) 4 SCC 723 [LNIND 1976 SC 51] [LNIND 1976 SC 51]
[LNIND 1976 SC 51], Dhanyalakshmi Rice Mills v Commissioner of Civil Supplies [1976] 3 SCR 387 [LNIND 1976 SC 51]
[LNIND 1976 SC 51] [LNIND 1976 SC 51]; Har Shankar v Deputy Excise and Taxation Commissioner AIR 1975 SC 1121
[LNIND 1975 SC 587] [LNIND 1975 SC 587] [LNIND 1975 SC 587], Har Shankar v Deputy Excise and Taxation Commissioner
(1975) 1 SCC 737 [LNIND 1975 SC 587] [LNIND 1975 SC 587] [LNIND 1975 SC 587], Har Shankar v Deputy Excise and
Taxation Commissioner [1975] 3 SCR 254 [LNIND 1975 SC 587] [LNIND 1975 SC 587] [LNIND 1975 SC 587]; Lekhraj
Sathrandas Lalvani v NM Shah, Deputy Custodian cum Managing Officer, Bombay AIR 1966 SC 334 [LNIND 1965 SC 156]
[LNIND 1965 SC 156] [LNIND 1965 SC 156], Lekhraj Sathrandas Lalvani v NM Shah, Deputy Custodian cum Managing Officer,
Bombay [1966] 1 SCR 120 [LNIND 1965 SC 156] [LNIND 1965 SC 156] [LNIND 1965 SC 156], Lekhraj Sathrandas Lalvani v
NM Shah, Deputy Custodian cum Managing Officer, Bombay (1966) 1 SCJ 24; Food Corporation of India v Sujit Roy AIR 2000
Gau 61 [LNIND 1999 GAU 209] [LNIND 1999 GAU 209] [LNIND 1999 GAU 209], Food Corporation of India v Sujit Roy (2000)
1 Gauhati LR 303, Food Corporation of India v Sujit Roy (2000) 2 Arbi LR 71; Namakkal South India Transports v Kerala State
Civil Supplies Corporation Ltd AIR 1997 Ker 56 [LNIND 1996 KER 173] [LNIND 1996 KER 173] [LNIND 1996 KER 173],
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Namakkal South India Transports v Kerala State Civil Supplies Corporation Ltd (1996) 2 Ker LT 276; State of Kerla v
Kottarakkara public Works Skilled Workers Labour Contract Co-operative Society Ltd AIR 2001 Ker 60; Alok Prasad Verma v
Union of India AIR 2001 Pat 211, Alok Prasad Verma v Union of India (2001) 1 BLJ 262, Alok Prasad Verma v Union of India
(2002) 3 BLJR 1913. See also text to notes 43, 44, 41 and 42, 45 46 above. As to damages in writ jurisdiction see damages
[115.299].
13 Shree Baidhyanath Ayurved Bhawan Pvt Ltd v State of Bihar AIR 1996 SC 2829, Shree Baidhyanath Ayurved Bhawan Pvt
Ltd v State of Bihar (1996) 6 SCC 86 [LNIND 1996 SC 1355] [LNIND 1996 SC 1355] [LNIND 1996 SC 1355], Shree
Baidhyanath Ayurved Bhawan Pvt Ltd v State of Bihar (1996) 8 JT 177; Dhanyalakshmi Rice Mills v Commissioner of Civil
Supplies AIR 1976 SC 2243 [LNIND 1976 SC 51] [LNIND 1976 SC 51] [LNIND 1976 SC 51], Dhanyalakshmi Rice Mills v
Commissioner of Civil Supplies (1976) 4 SCC 723 [LNIND 1976 SC 51] [LNIND 1976 SC 51] [LNIND 1976 SC 51],
Dhanyalakshmi Rice Mills v Commissioner of Civil Supplies [1976] 3 SCR 387 [LNIND 1976 SC 51] [LNIND 1976 SC 51]
[LNIND 1976 SC 51]; Hari Raj Singh v Sanchalak Panchayati Raj, Uttar Pradesh Government, Lucknow AIR 1968 All 246
[LNIND 1967 ALL 131] [LNIND 1967 ALL 131] [LNIND 1967 ALL 131], Hari Raj Singh v Sanchalak Panchayati Raj, Uttar
Pradesh Government, Lucknow (1967) All LJ 726, Hari Raj Singh v Sanchalak Panchayati Raj, Uttar Pradesh Government,
Lucknow (1968) Lab IC 900; Suganmal v State of Madhya Pradesh AIR 1965 SC 1740, Suganmal v State of Madhya Pradesh
(1965) 56 ITR 84, Suganmal v State of Madhya Pradesh (1965) 16 STC 398 (the Supreme Court refused to issue mandamus to
command the government to refund money illegally collected by it where the sole prayer was for the refund of money and the
statue had not expressly provided for the refund); Burmah Construction v State of Orissa AIR 1962 SC 1320 [LNIND 1961 SC
341] [LNIND 1961 SC 341] [LNIND 1961 SC 341], Burmah Construction v State of Orissa [1962] Supp 1 SCR 242, Burmah
Construction v State of Orissa (1962) 2 SCJ 148 [LNIND 1961 SC 341] [LNIND 1961 SC 341] [LNIND 1961 SC 341]; Sales Tax
Officer, Banaras v Kanhayalal Mukund Lal Saraf AIR 1959 SC 135 [LNIND 1958 SC 107] [LNIND 1958 SC 107] [LNIND 1958
SC 107], Sales Tax Officer, Banaras v Kanhayalal Mukund Lal Saraf [1959] SCR 1359, Sales Tax Officer, Banaras v
Kanhayalal Mukund Lal Saraf (1959) SCJ 53 [LNIND 1958 SC 107] [LNIND 1958 SC 107] [LNIND 1958 SC 107]. See however,
text to notes 50 and 51 above.
14 Jiwan Mal Kochar v Union of India AIR 1983 SC 1107, Jiwan Mal Kochar v Union of India (1984) 1 SCC 200, Jiwan Mal
Kochar v Union of India (1983) 2 Scale 76; Jivan Mal Kochar v Union of India AIR 1983 SC 1107, Jivan Mal Kochar v Union of
India (1984) 1 SCC 200, Jivan Mal Kochar v Union of India (1983) 2 Scale 76, Jivan Mal Kochar v Union of India (1983) 2 SLR
452(the Supreme Court held that the petitioner cannot claim damages under the Constitution of India art 32 against the
government and its officials for the loss, humiliation and indignity suffered by him due to the governmental action; however, in
course of time, judicial attitude has undergone a change and the courts have been awarding damages compensation under arts
32 and 226 to persons aggrieved by acts of commission or omission of the government).
15 Lekhraj Sathrandas Lalvani v N M Shah, Deputy Custodian cum Managing Officer, Bombay AIR 1966 SC 334 [LNIND 1965
SC 156] [LNIND 1965 SC 156] [LNIND 1965 SC 156], Lekhraj Sathrandas Lalvani v N M Shah, Deputy Custodian cum
Managing Officer, Bombay [1966] 1 SCR 120 [LNIND 1965 SC 156] [LNIND 1965 SC 156] [LNIND 1965 SC 156], Lekhraj
Sathrandas Lalvani v N M Shah, Deputy Custodian cum Managing Officer, Bombay (1966) 1 SCJ 24.
16 Union of India v Graphic Industries Co AIR 1995 SC 409, Union of India v Graphic Industries Co (1994) 5 SCC 398;
Mahabir Auto Stores v Indian Oil Corporation AIR 1990 SC 1031 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC
135], Mahabir Auto Stores v Indian Oil Corporation (1990) 3 SCC 752 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND
1990 SC 135], Mahabir Auto Stores v Indian Oil Corporation [1990] 1 SCR 818 [LNIND 1990 SC 135] [LNIND 1990 SC 135]
[LNIND 1990 SC 135]; Sterling Computers Ltd v MN Publications Ltd (1993) 1 SCC 445, Sterling Computers Ltd v MN
Publications Ltd [1993] 1 SCR 81 [LNIND 1993 SC 1156] [LNIND 1993 SC 1156] [LNIND 1993 SC 1156]; Radhakrishna
Agarwal v State of Bihar AIR 1977 SC 1496 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna
Agarwal v State of Bihar (1977) 3 SCC 457 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna
Agarwal v State of Bihar [1977] 3 SCR 249 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137].
17 Divisional Forest Officer, South Kheri v Ram Sanehi Singh AIR 1973 SC 205, Divisional Forest Officer, South Kheri v Ram
Sanehi Singh (1971) 3 SCC 864, Divisional Forest Officer, South Kheri v Ram Sanehi Singh (1970) SCD 181.
18 Life Insurance Corpn of India v Consumer Education and Research Centre AIR 1995 SC 1811 [LNIND 1995 SC 665]
[LNIND 1995 SC 665] [LNIND 1995 SC 665], Life Insurance Corpn of India v Consumer Education and Research Centre (1995)
5 SCC 482 [LNIND 1995 SC 653] [LNIND 1995 SC 653] [LNIND 1995 SC 653]; Ramana Dayaram Shetty v International
Authority of India AIR 1979 SC 1628 [LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275], Ramana Dayaram
Shetty v International Authority of India (1979) 3 SCC 489 [LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275],
Ramana Dayaram Shetty v International Authority of India [1979] 3 SCR 1014 [LNIND 1979 SC 275] [LNIND 1979 SC 275]
[LNIND 1979 SC 275].
(1994) 6 SCC 651 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India (1996) 1 Bank CLR 1; Life
Insurance Corpn of India v Consumer Education and Research Centre AIR 1995 SC 1811 [LNIND 1995 SC 665] [LNIND 1995
SC 665] [LNIND 1995 SC 665], Life Insurance Corpn of India v Consumer Education and Research Centre (1995) 5 SCC 482
[LNIND 1995 SC 653] [LNIND 1995 SC 653] [LNIND 1995 SC 653]; Life Insurance Corporation of India v Escorts Ltd AIR 1986
SC 1370 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], Life Insurance Corporation of India v Escorts Ltd
(1986) 1 SCC 264 [LNIND 1985 SC 362] [LNIND 1985 SC 362] [LNIND 1985 SC 362], Life Insurance Corporation of India v
Escorts Ltd [1985] Supp 3 SCR 909 (if the action of the state is related to contractual obligations or obligations arising out of the
tort, the court may not ordinarily examine it, unless the action has some public law character attached to it; the court will
examine actions of state if they pertain to the public law domain and refrain from examining them if they pertain to the private
421
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law field).
20 State of Madhya Pradesh v Bhailal Bhai AIR 1965 SC 1006, State of Madhya Pradesh v Bhailal Bhai [1964] 6 SCR 261
[LNIND 1964 SC 7] [LNIND 1964 SC 7] [LNIND 1964 SC 7], State of Madhya Pradesh v Bhailal Bhai (1964) 15 STC 450;
Annapurna Match Industries Cuddapah v Union of India AIR 1964 SC 1006 [LNIND 1964 SC 7] [LNIND 1964 SC 7] [LNIND
1964 SC 7], Annapurna Match Industries Cuddapah v Union of India [1964] 6 SCR 261 [LNIND 1964 SC 7] [LNIND 1964 SC 7]
[LNIND 1964 SC 7], Annapurna Match Industries Cuddapah v Union of India (1964) 15 STC 450.
21 KCP Ltd (Ramakrishna Cements) Macherla v Government of Andhra Pradesh (1972) 29 STC 507 (AP).
22 Burmah Construction v State of Orissa AIR 1962 SC 1320 [LNIND 1961 SC 341] [LNIND 1961 SC 341] [LNIND 1961 SC
341], Burmah Construction v State of Orissa [1962] Supp 1 SCR 242, Burmah Construction v State of Orissa (1962) 2 SCJ 148
23 Uttar Pradesh Pollution Control Board v Kanoria Industrial Ltd AIR 2001 SC 787,at 793, Uttar Pradesh Pollution Control
Board v Kanoria Industrial Ltd (2001) 2 SCC 549, Uttar Pradesh Pollution Control Board v Kanoria Industrial Ltd (2001) 2 JT
103 (a cess was collected from the sugar mills under an unconstitutional law; the mills paid the cess under protest and did not
pass on the cess to any third party but bore the brunt themselves; in the circumstances, the court issued mandamus to the
taxing authorities to refund the money illegally collected as cess); Steel Authority of India Ltd v State of Orissa AIR 2000 SC
946 [LNIND 2000 SC 377] [LNIND 2000 SC 377] [LNIND 2000 SC 377], Steel Authority of India Ltd v State of Orissa (2000) 3
SCC 200 [LNIND 2000 SC 377] [LNIND 2000 SC 377] [LNIND 2000 SC 377], Steel Authority of India Ltd v State of Orissa
(2000) 2 Scale 98 [LNIND 2000 SC 377] [LNIND 2000 SC 377] [LNIND 2000 SC 377]; Shree Baidyanath Ayurved Bhawan Pvt
Ltd v State of Bihar AIR 1996 SC 2829, Shree Baidyanath Ayurved Bhawan Pvt Ltd v State of Bihar (1996) 6 SCC 86 [LNIND
1996 SC 1355] [LNIND 1996 SC 1355] [LNIND 1996 SC 1355], Shree Baidyanath Ayurved Bhawan Pvt Ltd v State of Bihar AIR
(1996) SCW 3623; HHM Ltd v Administrator, Bangalore City Corporation, Bangalore AIR 1990 SC 47 [LNIND 1989 SC 488]
[LNIND 1989 SC 488] [LNIND 1989 SC 488], HHM Ltd v Administrator, Bangalore City Corporation, Bangalore (1989) 4 SCC
595 [LNIND 1989 SC 490] [LNIND 1989 SC 490] [LNIND 1989 SC 490], HHM Ltd v Administrator, Bangalore City Corporation,
Bangalore [1989] Supp 1 353; Salonath Tea Co Ltd v Suprintendent of Taxes, Nowgong AIR 1990 SC 772 [LNIND 1987 SC
865] [LNIND 1987 SC 865] [LNIND 1987 SC 865], Salonath Tea Co Ltd v Suprintendent of Taxes, Nowgong (1988) 1 SCC 401
[LNIND 1987 SC 865] [LNIND 1987 SC 865] [LNIND 1987 SC 865]; State of Madhya Pradesh v Bhailal Bhai AIR 1964 SC
1006 [LNIND 1964 SC 7] [LNIND 1964 SC 7] [LNIND 1964 SC 7], State of Madhya Pradesh v Bhailal Bhai [1964] 6 SCR 261
[LNIND 1964 SC 7] [LNIND 1964 SC 7] [LNIND 1964 SC 7], State of Madhya Pradesh v Bhailal Bhai (1964) 15 STC 450;
Annapurna Match Industries Cuddapah v Union of India AIR 1971 AP 69 [LNIND 1970 AP 76] [LNIND 1970 AP 76] [LNIND
1970 AP 76]. See contra Municipal Corporation of Greater Bombay v Bombay Tyres International Ltd AIR 1998 SC 1629
[LNIND 1998 SC 368] [LNIND 1998 SC 368] [LNIND 1998 SC 368], Municipal Corporation of Greater Bombay v Bombay Tyres
International Ltd AIR 1998 SCW 1373, Municipal Corporation of Greater Bombay v Bombay Tyres International Ltd (1998) 4
SCC 100 [LNIND 1998 SC 368] [LNIND 1998 SC 368] [LNIND 1998 SC 368]; Koluthara Exports Ltd v State of Kerala (2002) 2
SCC 459 [LNIND 2002 SC 92] [LNIND 2002 SC 92] [LNIND 2002 SC 92] (the Court refused refund).
24 Suganmal v State of Madhya Pradesh AIR 1965 SC 1740, Suganmal v State of Madhya Pradesh (1965) 56 ITR 84,
Suganmal v State of Madhya Pradesh (1965) 16 STC 398; See however Food Corporation of India v Viramgam Nagar Palika
AIR 2000 Guj 91 [LNIND 1999 GUJ 510] [LNIND 1999 GUJ 510] [LNIND 1999 GUJ 510], Food Corporation of India v
Viramgam Nagar Palika (2000) 1 Guj LR 620, Food Corporation of India v Viramgam Nagar Palika (2000) 1 Guj LH 470.
25 Shri Anandi Mukta Sadguru, Shree Muktajee Vandajiswami Surana Jayanti Mahotsav Smarak Trust v Rudani AIR 1989 SC
1607 [LNIND 1989 SC 248] [LNIND 1989 SC 248] [LNIND 1989 SC 248], Shri Anandi Mukta Sadguru, Shree Muktajee
Vandajiswami Surana Jayanti Mahotsav Smarak Trust v Rudani (1989) 2 SCC 691 [LNIND 1989 SC 295] [LNIND 1989 SC 295]
[LNIND 1989 SC 295], Shri Anandi Mukta Sadguru, Shree Muktajee Vandajiswami Surana Jayanti Mahotsav Smarak Trust v
Rudani (1989) Lab IC 1550 [LNIND 1989 SC 295] [LNIND 1989 SC 295] [LNIND 1989 SC 295](the judicial control over the past
expanding maze of bodies affecting the rights of the people must not be put into water tight compartment; it must remain flexible
to meet the requirements of variable circumstances; mandamus is a very wide remedy which must be easily available to reach
injustice wherever it is found; technicalities must not come in the way of granting that relief under the Constitution of India art
226).

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(3) MANDAMUS/[005.288] Mandamus and judicial review
[005.288] Mandamus and judicial review In the modern era, when extensive discretionary powers are
being conferred on administrative authorities, mandamus may be used to invoke judicial review of
administrative action1. When the discretion is vested in an authority by law and it fails to exercise the same
or abuses the discretion vested in it, mandamus can be issued ordering the concerned authority to exercise
its discretion properly and according to law. A discretionary decision suffering from a justiciable fault may be
quashed through mandamus2. Similarly, a decision may be quashed if the administrative authority has:
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(1) exceeded the limits of its powers3;

(2) acted mala fide4;
(3) not applied its mind5;
(4) taken into account an irrelevant consideration6;
(5) passed an order without there being any material to support the same7.
(6) taken a decision on purely political considerations, without any material8.
Once a matter has been referred to a special tribunal for adjudication under a statute, the government has no
power to cancel or supersede the reference subsequently and if it seeks to do so, mandamus can be
issued9.
When an administrator has discretion but refuses to exercise the same thinking that he has no discretion in
the matter, mandamus can be issued directing him to exercise his discretion and determine the matter
according to law. . In such cases, the court cannot ask an authority to exercise its discretion in a particular
manner not expressly required by law or question its exercise on merits or substitute its own discretion for
that of the authority in which it is vested10. The court does not sit in appeal over the order and is not entitled
to consider the propriety or the correctness or the satisfactory character of the reasons given by the
government for making the order. However, if an authority having discretion is also under a duty to act and
exercise its discretion, then the courts may enforce this duty and ask the authority to act according to law11.
A mere irregularity in an authority exercising its power is not a sufficient ground for issue of the mandamus12.
A mandamus can be issued to restrain a public authority from acting under a void law13. Ordinarily
mandamus would not be issued to enforce administrative directions that do not have the force of law14,
however, in some cases; the courts have enforced the directions15.
1 As to discretionary powers of administrative authorities see [005.182]. As to judicial review of administrative action see
[005.210].
2 Satwant Singh Sawhney v D Ramarathnam, Assistant Passport Officer, New Delhi AIR 1967 SC 1836 [LNIND 1967 SC 427]
[LNIND 1967 SC 427] [LNIND 1967 SC 427], Satwant Singh Sawhney v D Ramarathnam, Assistant Passport Officer, New
Delhi [1967] 3 SCR 525 [LNIND 1967 SC 427] [LNIND 1967 SC 427] [LNIND 1967 SC 427]; S G Jaisinghani v Union of India
AIR 1967 SC 1427 [LNIND 1967 SC 42] [LNIND 1967 SC 42] [LNIND 1967 SC 42], S G Jaisinghani v Union of India (1967) Cur
LJ (D) 49, S G Jaisinghani v Union of India (1967) 2 SCJ 102; MSM Mangudi v State of Tamil Nadu AIR 1971 Mad 275 [LNIND
1970 MAD 130] [LNIND 1970 MAD 130] [LNIND 1970 MAD 130], MSM Mangudi v State of Tamil Nadu (1970) Mad LW (Cr)
278, MSM Mangudi v State of Tamil Nadu (1971) 2 Mad LJ 27; Krishna Cinema, Rajkot v State of Gujarat AIR 1971 Guj 103
[LNIND 1969 GUJ 84] [LNIND 1969 GUJ 84] [LNIND 1969 GUJ 84].
3 Calcutta Discount Co Ltd v Income Tax Officer AIR 1961 SC 372 [LNIND 1960 SC 255] [LNIND 1960 SC 255] [LNIND 1960
SC 255], Calcutta Discount Co Ltd v Income Tax Officer [1961] 2 SCR 241 [LNIND 1960 SC 255] [LNIND 1960 SC 255] [LNIND
1960 SC 255], Calcutta Discount Co Ltd v Income Tax Officer (1961) 41 ITR 191 [LNIND 1960 SC 255] [LNIND 1960 SC 255]
[LNIND 1960 SC 255].
4 State of Punjab v Gurdial Singh AIR 1980 SC 319 [LNIND 1979 SC 424] [LNIND 1979 SC 424] [LNIND 1979 SC 424], State
of Punjab v Gurdial Singh (1980) 1 SCJ 399, State of Punjab v Gurdial Singh [1980] 1 SCR 1071 [LNIND 1979 SC 424] [LNIND
1979 SC 424] [LNIND 1979 SC 424]; State of Haryana v Rajendra Sareen AIR 1972 SC 1004 [LNIND 1971 SC 585] [LNIND
1971 SC 585] [LNIND 1971 SC 585], State of Haryana v Rajendra Sareen (1972) 1 SCC 267 [LNIND 1971 SC 585] [LNIND
1971 SC 585] [LNIND 1971 SC 585], State of Haryana v Rajendra Sareen [1972] 2 SCR 452 [LNIND 1971 SC 585] [LNIND
1971 SC 585] [LNIND 1971 SC 585]; A Periakaruppan v State of Tamil Nadu AIR 1971 SC 2303 [LNIND 1970 SC 386] [LNIND
1970 SC 386] [LNIND 1970 SC 386], A Periakaruppan v State of Tamil Nadu (1971) 1 SCC 38 [LNIND 1970 SC 386] [LNIND
1970 SC 386] [LNIND 1970 SC 386], A Periakaruppan v State of Tamil Nadu [1971] 2 SCR 430 [LNIND 1970 SC 386] [LNIND
1970 SC 386] [LNIND 1970 SC 386]; State of Punjab v Ramji Lal AIR 1971 SC 1228 [LNIND 1970 SC 404] [LNIND 1970 SC
404] [LNIND 1970 SC 404], State of Punjab v Ramji Lal (1970) 3 SCC 602 [LNIND 1970 SC 404] [LNIND 1970 SC 404] [LNIND
1970 SC 404], State of Punjab v Ramji Lal [1971] 2 SCR 550 [LNIND 1970 SC 404] [LNIND 1970 SC 404] [LNIND 1970 SC
404]; S Pratap Singh v State of Punjab AIR 1964 SC 72 [LNIND 1963 SC 211] [LNIND 1963 SC 211] [LNIND 1963 SC 211], S
Pratap Singh v State of Punjab [1964] SCR 733, S Pratap Singh v State of Punjab (1966) 1 LLJ 458 [LNIND 1963 SC 211]
[LNIND 1963 SC 211] [LNIND 1963 SC 211]; C S Rowjee v State of Andhra Pradesh AIR 1964 SC 962 [LNIND 1964 SC 14]
[LNIND 1964 SC 14] [LNIND 1964 SC 14], C S Rowjee v State of Andhra Pradesh [1964] 6 SCR 330 [LNIND 1964 SC 14]
[LNIND 1964 SC 14] [LNIND 1964 SC 14], C S Rowjee v State of Andhra Pradesh (1964) 2 An LT 48.
5 Mansukhlal Vithaldas Chauhan v State of Gujarat AIR 1997 SC 3400 [LNIND 1997 SC 1158] [LNIND 1997 SC 1158]at 3405,
Mansukhlal Vithaldas Chauhan v State of Gujarat (1997) 7 SCC 622 [LNIND 1997 SC 1158] [LNIND 1997 SC 1158],
Mansukhlal Vithaldas Chauhan v State of Gujarat (1997) 3 SCJ 19(under the Prevention of Corruption Act 1947 s 6, a public
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servant could not be prosecuted for certain specified offences without the sanction of the concerned government; the Supreme
Court emphasised that the grant of sanction was a solemn aff AIR and not merely a matter of form; that sanction granted
mechanically and without the application of mind by the concerned authority could not be regarded as valid and mandamus
could be issued to quash the same); Nandlal Khodidas Barot v Bar Council of Gujarat AIR 1981 SC 477, Nandlal Khodidas
Barot v Bar Council of Gujarat (1980) Supp SCC 318, Nandlal Khodidas Barot v Bar Council of Gujarat (1980) UJ 914; Kishori
Mohan Bera v State of West Bengal AIR 1972 SC 1749, Kishori Mohan Bera v State of West Bengal (1972) 3 SCC 845, Kishori
Mohan Bera v State of West Bengal (1973) SCC (Cr) 30; State of Punjab v Hari Kishan Sharma AIR 1966 SC 1081 [LNIND
1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362], State of Punjab v Hari Kishan Sharma [1966] 2 SCR 982 [LNIND
1965 SC 362] [LNIND 1965 SC 362] [LNIND 1965 SC 362], State of Punjab v Hari Kishan Sharma (1966) 1 SCA 859.
6 Assistant Comptroller of Estate Duty v Prayag Dass Agarwal AIR 1981 SC 1263 [LNIND 1981 SC 250] [LNIND 1981 SC 250]
[LNIND 1981 SC 250], Assistant Comptroller of Estate Duty v Prayag Dass Agarwal (1981) 3 SCC 181 [LNIND 1981 SC 250]
[LNIND 1981 SC 250] [LNIND 1981 SC 250], Assistant Comptroller of Estate Duty v Prayag Dass Agarwal [1981] 3 SCR 576
[LNIND 1981 SC 250] [LNIND 1981 SC 250] [LNIND 1981 SC 250]; Manu Bhushan Roy Prodhan v State of West Bengal AIR
1973 SC 295 [LNIND 1972 SC 520] [LNIND 1972 SC 520] [LNIND 1972 SC 520] Manu Bhushan Roy
Prodhan v State of West Bengal (1973) 3 SCC 663 [LNIND 1972 SC 520] [LNIND 1972 SC 520] [LNIND 1972 SC 520], Manu
Bhushan Roy Prodhan v State of West Bengal [1973] 2 SCR 842 [LNIND 1972 SC 520] [LNIND 1972 SC 520] [LNIND 1972 SC
520]; Sheo Nath Singh v Appellate Assistant Commissioner of Income Tax AIR 1971 SC 2451 [LNIND 1971 SC 371] [LNIND
1971 SC 371] [LNIND 1971 SC 371], Sheo Nath Singh v Appellate Assistant Commissioner of Income Tax (1972) 3 SCC 234
[LNIND 1971 SC 371] [LNIND 1971 SC 371] [LNIND 1971 SC 371], Sheo Nath Singh v Appellate Assistant Commissioner of
Income Tax [1972] 1 SCR 175 [LNIND 1971 SC 371] [LNIND 1971 SC 371] [LNIND 1971 SC 371]; Rohtas Industries Ltd v SD
Agrawal AIR 1969 SC 707 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428], Rohtas Industries Ltd v SD
Agrawal (1969) 1 SCC 325 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428], Rohtas Industries Ltd v SD
Agrawal [1969] 3 SCR 108 [LNIND 1968 SC 428] [LNIND 1968 SC 428] [LNIND 1968 SC 428]; P J Irani v State of Madras AIR
1961 SC 1731 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192], P J Irani v State of Madras [1962] 2 SCR
169 [LNIND 1961 SC 192] [LNIND 1961 SC 192] [LNIND 1961 SC 192], P J Irani v State of Madras (1962) 1 SCJ 194 [LNIND
7 Union of India v Brij Fertilizers Pvt Ltd (1993) 3 SCC 564 [LNIND 1993 SC 468] [LNIND 1993 SC 468] [LNIND 1993 SC 468].
8 N Varado Rajula Reddy v Government of Andhra Pradesh AIR 1997 AP 222 [LNIND 1997 AP 86] [LNIND 1997 AP 86]
[LNIND 1997 AP 86], N Varado Rajula Reddy v Government of Andhra Pradesh (1997) 2 Andh LD 660.
9 Y Mahaboob Sherrif v Mysore State Transport Authority, Bangalore AIR 1960 SC 321 [LNIND 1959 SC 199] [LNIND 1959
SC 199] [LNIND 1959 SC 199], Y Mahaboob Sherrif v Mysore State Transport Authority, Bangalore (1960) SCJ 402, Y
Mahaboob Sherrif v Mysore State Transport Authority, Bangalore [1960] 2 SCR 146 [LNIND 1959 SC 199] [LNIND 1959 SC
199] [LNIND 1959 SC 199]; State of Bihar v D N Ganguly AIR 1958 SC 1018 [LNIND 1958 SC 92] [LNIND 1958 SC 92] [LNIND
1958 SC 92], State of Bihar v D N Ganguly (1958) SCA 1082, State of Bihar v D N Ganguly (1958) 2 Lab LJ 634.
10 State of West Bengal v Nuruddin Malik AIR 1999 SC 1466 [LNIND 1998 SC 903] [LNIND 1998 SC 903] [LNIND 1998 SC
903], State of West Bengal v Nuruddin Malik AIR 1998 SCW 3989, State of West Bengal v Nuruddin Malik (1998) 8 SCC 143
[LNIND 1998 SC 903] [LNIND 1998 SC 903] [LNIND 1998 SC 903] (the courts can either direct the statutory authorities, where
it is not exercising its discretion, by mandamus to exercise its discretion or when exercised to see whether it has been validly
exercised; it would be inappropriate for the court to substitute itself for the statutory authorities to decide the matter); State of
Haryana v Naresh Kumar Bali, (1994) 4 SCC 448, State of Haryana v Naresh Kumar Bali, (1995) 2 LLJ 108; Uttar Pradesh
State Road Transport Corporation v Mohd Ismail AIR 1991 SC 1099 [LNIND 1991 SC 207] [LNIND 1991 SC 207] [LNIND 1991
SC 207], Uttar Pradesh State Road Transport Corporation v Mohd Ismail (1991) 3 SCC 239 [LNIND 1991 SC 207] [LNIND 1991
SC 207] [LNIND 1991 SC 207], Uttar Pradesh State Road Transport Corporation v Mohd Ismail [1991] 2 SCR 274 [LNIND 1991
SC 207] [LNIND 1991 SC 207] [LNIND 1991 SC 207]; State of Mysore v KN Chandrasekhara AIR 1965 SC 532 [LNIND 1964
SC 639] [LNIND 1964 SC 639] [LNIND 1964 SC 639], State of Mysore v KN Chandrasekhara (1965) 1 SCJ 702, State of
Mysore v KN Chandrasekhara (1965) SCD 243; Vice Chancellor, Utkal University v SK Ghosh AIR 1954 SC 217 [LNIND 1954
SC 6] [LNIND 1954 SC 6] [LNIND 1954 SC 6], Vice Chancellor, Utkal University v SK Ghosh [1954] SCR 883 [LNIND 1954 SC
6] [LNIND 1954 SC 6] [LNIND 1954 SC 6], Vice Chancellor, Utkal University v SK Ghosh (1954) SC 252 (the syndicate of a
university cancelled the examination in a subject and directed re-examination as it was satisfied that there had been leakage of
questions; the Supreme Court emphasised that it was not the court's function to substitute its discretion for that of the university
authorities).
11 Comptroller and Auditor General v KS Jagannathan AIR 1987 SC 545; Ruttonjee and Co v State of West Bengal AIR 1967
Cal 450 [LNIND 1966 CAL 133] [LNIND 1966 CAL 133] [LNIND 1966 CAL 133]; Commissioner of Police, Bombay v
Gordhandas Bhanji AIR 1952 SC 16 [LNIND 1951 SC 63] [LNIND 1951 SC 63] [LNIND 1951 SC 63], Commissioner of Police,
Bombay v Gordhandas Bhanji [1952] SCR 135 [LNIND 1951 SC 63] [LNIND 1951 SC 63] [LNIND 1951 SC 63], Commissioner
of Police, Bombay v Gordhandas Bhanji (1951) SCJ 803 (a rule framed under the City of Bombay Police Act 1902 provided that
the Commissioner of Police will have power in his absolute discretion at any time to cancel or suspend any licence granted
under these rules; interpreting the rule, the Supreme Court stated that where the Commissioner has before him objections
received from the public to the grant of a cinema licence, the Commissioner was obligated to exercise his discretion either to
cancel the licence or to reject the objections).
12 Cooverjee B Bharucha v Excise Commissioner and the Chief Commissioner, Ajmer AIR 1954 SC 220 [LNIND 1954 SC 2]
[LNIND 1954 SC 2] [LNIND 1954 SC 2], Cooverjee B Bharucha v Excise Commissioner and the Chief Commissioner, Ajmer
[1954] SCR 873 [LNIND 1954 SC 2] [LNIND 1954 SC 2] [LNIND 1954 SC 2], Cooverjee B Bharucha v Excise Commissioner
424
Page 21
and the Chief Commissioner, Ajmer (1954) SCJ 246 [LNIND 1954 SC 2] [LNIND 1954 SC 2] [LNIND 1954 SC 2].
13 Dwarka Prasad Laxmi Narain v State of Uttar Pradesh AIR 1954 SC 224 [LNIND 1954 SC 1] [LNIND 1954 SC 1] [LNIND
1954 SC 1], Dwarka Prasad Laxmi Narain v State of Uttar Pradesh [1954] SCR 803 [LNIND 1954 SC 1] [LNIND 1954 SC 1]
[LNIND 1954 SC 1], Dwarka Prasad Laxmi Narain v State of Uttar Pradesh (1954) SCJ 238 [LNIND 1954 SC 1] [LNIND 1954
SC 1] [LNIND 1954 SC 1].
14 JR Raghupathy v State of Andhra Pradesh AIR 1988 SC 1681 [LNIND 1988 SC 692] [LNIND 1988 SC 692] [LNIND 1988
SC 692], JR Raghupathy v State of Andhra Pradesh (1988) 4 SCC 364 [LNIND 1988 SC 692] [LNIND 1988 SC 692] [LNIND
1988 SC 692], JR Raghupathy v State of Andhra Pradesh [1988] Supp (1) SCR 694; State of Assam v Ajit Kumar Sarma AIR
1965 SC 1196 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit Kumar Sarma [1965] 1
SCR 890 [LNIND 1964 SC 284] [LNIND 1964 SC 284] [LNIND 1964 SC 284], State of Assam v Ajit Kumar Sarma (1966) 1 LLJ
451.
15 Bishamber Dayal Chandra Mohan v State of Uttar Pradesh AIR 1982 SC 33, Bishamber Dayal Chandra Mohan v State of
Uttar Pradesh (1982) 1 SCC 39 [LNIND 1981 SC 427] [LNIND 1981 SC 427] [LNIND 1981 SC 427], Bishamber Dayal Chandra
Mohan v State of Uttar Pradesh [1982] 1 SCR 1137 [LNIND 1981 SC 427] [LNIND 1981 SC 427] [LNIND 1981 SC 427];
Baleshwar Dass v State of Uttar Pradesh AIR 1981 SC 41 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC 334],
Baleshwar Dass v State of Uttar Pradesh (1980) 4 SCC 226 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC
334], Baleshwar Dass v State of Uttar Pradesh [1981] 1 SCR 449 [LNIND 1980 SC 334] [LNIND 1980 SC 334] [LNIND 1980 SC
334]; Jewat Bai & Sons v GC Batra AIR 1967 Del 310.

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(4) CERTIORARI AND PROHIBITION/A.
INTRODUCTION/[005.289] Generally
[005.289] Generally The writs of certiorari and prohibition are designed to prevent the excess of power by
public authorities. Both these writs are issued practically on similar grounds. The only difference between the
two is as regards the stage at which each writ is issued.
The jurisdiction to issue certiorari is a supervisory jurisdiction and the high court exercising it is not entitled to
act as an appellate court. A decision that transgresses the limits of an authority jurisdiction may be quashed
if the court goes into the merits of a controversy1.
A writ in the nature of certiorari is a wholly inappropriate relief to ask for when the constitutional validity of a
legislative measure is being challenged. In such a case, the proper relief would be a declaration that a
particular law is unconstitutional and void2. If a consequential relief is thought necessary, then a writ of
mandamus3 may be issued restraining the State from enforcing or giving effect to the provisions of the law in
question4.
Prohibition is issuable before the proceedings are complete. The function of prohibition is to prohibit the
concerned body from proceeding further with the matter. The object of prohibition is prevention rather than
cure. For example, a high court can issue prohibition to restrain a tribunal from acting under an
unconstitutional law. However, if the tribunal has already given its decision then certiorari is the proper
remedy in such a situation.
In a proceeding before an inferior body, the high court may have to issue both prohibition and certiorari that
is prohibition to prohibit the body from proceeding further and certiorari to quash what has already been done
by it.
1 P Ksailingam v PSG College of Technology AIR 1981 SC 789 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P
Ksailingam v PSG College of Technology (1981) 1 SCC 405 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P
Ksailingam v PSG College of Technology [1981] 2 SCR 490 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9].
2 As to the meaning of declaration see [005.345]-[005.348]. As to when declarations may or may not be granted see
425
Page 22
4 Prabodh Verma v State of Uttar Pradesh AIR 1985 SC 167 [LNIND 1984 SC 376] [LNIND 1984 SC 376] [LNIND 1984 SC
376], Prabodh Verma v State of Uttar Pradesh (1984) 4 SCC 251 [LNIND 1984 SC 376] [LNIND 1984 SC 376] [LNIND 1984 SC
376], Prabodh Verma v State of Uttar Pradesh [1985] 1 SCR 216 [LNIND 1984 SC 376] [LNIND 1984 SC 376] [LNIND 1984 SC
376].

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(4) CERTIORARI AND PROHIBITION/A.
INTRODUCTION/[005.290] Grounds of issue
[005.290] Grounds of issue The writs of certiorari and prohibition are general remedies for the judicial
control of both quasi-judicial and administrative decisions affecting rights. Thus, certiorari may be issued to a
local planning authority to quash planning permission vitiated by unreasonable conditions1. Prohibition may
be issued to a local council preventing it from licensing indecent films2 or preventing it from discharging its
administrative function unfairly3.
The writ of certiorari or prohibition may be issued on the following grounds4:
(a) when the body concerned proceeds to act without or in excess of jurisdiction; or
(b) fails to exercise its jurisdiction5; or
(c) there is an error of law apparent on the face of the record in the impugned decision of the
body; or
(d) the findings of fact reached by the inferior tribunal are based on no evidence; or
(e) the body proceeds to act in violation of the principles of natural justice; or
(f) the body proceeds to act under law which is itself invalid, ultra vires or unconstitutional; or
(g) the body proceeds to act in contravention of the fundamental rights6.
The coverage of the writs of prohibition and certiorari has expanded with the expanding horizons of natural
justice7. Since it is not usual to find an express provision in a statute to indicate whether the body set up by it
is to act according to natural justice or otherwise, in most cases, it must be implied from the statute8. In
addition to other circumstances, certiorari may be issued:
(1) to authorities dealing with licensing of liquor shops9;

(2) for passing the order of confiscation or imposing penalty under [005. 290] the Sea Customs
Act 187810;
(3) for tax assessment proceedings11;
(4) for cancellation of examination results of a candidate or expulsion of a student by a
university12;
(5) to an inquiry commission under the 195213;
(6) to industrial tribunals14 and election tribunals15;
(7) for dismissal from service16 or removal from membership of a body17;
(8) for cancellation of a licence18;
(9) for requisitioning of property for a public purpose19 or an inquiry committee20; and
(10) to a court martial21.
The District Consumer Forum, the State Consumer Forum as well as the National Commission constituted by
the Consumer Protection Act 1986 have adjudicatory powers and also have certain characteristics of a court.
These bodies are tribunals and are thus, subject to certiorari and prohibition22.
1 R v Hillingdon London BC, exp Royco Homes Ltd, (1974) QB 720.
2 R v GLC exp Blackburn, (1976) 1 WLR 550.

426
Page 23
3 R v Liverpool Corpn exp Taxi Fleet, (1972) 2 QB 299.
4 Syed Yakoob v K S .Radha Krishnan AIR 1964 SC 477, Syed Yakoob v K S .Radha Krishnan [1964] 5 SCR 64 [LNIND 1963
5 Tata Consulting Engineers v Workmen Employed under Them AIR 1981 SC 599 [LNIND 1980 SC 453] [LNIND 1980 SC
453] [LNIND 1980 SC 453], Tata Consulting Engineers v Workmen Employed under Them (1980) Supp SCC 627 [LNIND 1980
SC 453] [LNIND 1980 SC 453] [LNIND 1980 SC 453], Tata Consulting Engineers v Workmen Employed under Them [1981] 2
SCR 166 [LNIND 1980 SC 453] [LNIND 1980 SC 453] [LNIND 1980 SC 453]; Chetkar Jha v Viswanath Prasad Verma AIR
1970 SC 1832 [LNIND 1970 SC 268] [LNIND 1970 SC 268] [LNIND 1970 SC 268], Chetkar Jha v Viswanath Prasad Verma
(1970) Serv LR 805, Chetkar Jha v Viswanath Prasad Verma (1970) Pat LJR 557 [LNIND 1970 SC 268] [LNIND 1970 SC 268]
[LNIND 1970 SC 268]; Commissioner of Income Tax, Gujarat v A Raman & Co AIR 1968 SC 49 [LNIND 1967 SC 206] [LNIND
1967 SC 206] [LNIND 1967 SC 206], Commissioner of Income Tax, Gujarat v A Raman & Co [1968] 1 SCR 10 [LNIND 1967
SC 206] [LNIND 1967 SC 206] [LNIND 1967 SC 206], Commissioner of Income Tax, Gujarat v A Raman & Co (1967) 2 SCJ
842 [LNIND 1967 SC 206] [LNIND 1967 SC 206] [LNIND 1967 SC 206]; Sales Tax Officer, Jodhpur v Shiv Ratan G Mohatta
AIR 1966 SC 142 [LNIND 1965 SC 38] [LNIND 1965 SC 38] [LNIND 1965 SC 38], Sales Tax Officer, Jodhpur v Shiv Ratan G
Mohatta [1965] 3 SCR 71 [LNIND 1965 SC 38] [LNIND 1965 SC 38] [LNIND 1965 SC 38], Sales Tax Officer, Jodhpur v Shiv
Ratan G Mohatta (1966) 2 SCJ 167.
6 Uttar Pradesh Sales Tax Service Association v Taxation Bar Association, Agra AIR 1996 SC 98 [LNIND 1995 SC 861]
[LNIND 1995 SC 861] [LNIND 1995 SC 861], Uttar Pradesh Sales Tax Service Association v Taxation Bar Association, Agra
(1995) 5 SCC 716 [LNIND 1995 SC 861] [LNIND 1995 SC 861] [LNIND 1995 SC 861], Uttar Pradesh Sales Tax Service
Association v Taxation Bar Association, Agra (1995) 3 SCJ 671.
7 Ridge v Baldwin (1963) 2 WLR 935; A K Kraipak v Union of India AIR 1970 SC 150 [LNIND 1969 SC 197] [LNIND 1969 SC
197] [LNIND 1969 SC 197], A K Kraipak v Union of India (1970) 1 SCJ 381, A K Kraipak v Union of India [1970] 1 SCR 457
9 Nagendra Nath Bora v Comr of Hills Division and Appeals, Assam AIR 1958 SC 398 [LNIND 1958 SC 6] [LNIND 1958 SC 6]
[LNIND 1958 SC 6], Nagendra Nath Bora v Comr of Hills Division and Appeals, Assam (1958) SCJ 798 [LNIND 1958 SC 6]
[LNIND 1958 SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Comr of Hills Division and Appeals, Assam [1958] SCR 1240
10 Sewpujanrai Indrasanarai Ltd v Collector of Customs AIR 1958 SC 845 [LNIND 1958 SC 71] [LNIND 1958 SC 71] [LNIND
1958 SC 71], Sewpujanrai Indrasanarai Ltd v Collector of Customs (1958) SCJ 1199 [LNIND 1958 SC 71] [LNIND 1958 SC 71]
[LNIND 1958 SC 71], Sewpujanrai Indrasanarai Ltd v Collector of Customs (1958) Cr LJ 1355; Asstt Collector Customs v
Malhotra AIR 1972 SC 2083.
11 Kunnathat Thattunni Moopil Nair v State of Kerala AIR 1961 SC 552 [LNIND 1960 SC 331] [LNIND 1960 SC 331] [LNIND
1960 SC 331], Kunnathat Thattunni Moopil Nair v State of Kerala [1961] 3 SCR 77 [LNIND 1960 SC 331] [LNIND 1960 SC 331]
[LNIND 1960 SC 331], Kunnathat Thattunni Moopil Nair v State of Kerala (1961) 2 SCJ 269; Board of Revenue, Uttar Pradesh,
Allahabad v Sardarni Vidyawati AIR 1962 SC 1217 [LNIND 1962 SC 497] [LNIND 1962 SC 497] [LNIND 1962 SC 497], Board
of Revenue, Uttar Pradesh, Allahabad v Sardarni Vidyawati [1962] Supp 3 SCR 50, Board of Revenue, Uttar Pradesh,
Allahabad v Sardarni Vidyawati (1962) All LJ 691; Sovachand Mulchand v Collector, Central Excise AIR 1968 Cal 174 [LNIND
1966 CAL 202] [LNIND 1966 CAL 202] [LNIND 1966 CAL 202].
12 Board of High School and Intermediate Education, Uttar Pradesh, Allahabad v Ghanshyam Das Gupta AIR 1962 SC 1110
[LNIND 1962 SC 55] [LNIND 1962 SC 55] [LNIND 1962 SC 55], Board of High School and Intermediate Education, Uttar
Pradesh, Allahabad v Ghanshyam Das Gupta [1962] Supp 3 SCR 36, Board of High School and Intermediate Education, Uttar
Pradesh, Allahabad v Ghanshyam Das Gupta (1962) 2 ILR All 661; The Board of High School and Intermediate Education,
Uttar Pradesh v Kumari Chitra Srivastava AIR 1970 SC 1039 [LNIND 1969 SC 458] [LNIND 1969 SC 458] [LNIND 1969 SC
458], The Board of High School and Intermediate Education, Uttar Pradesh v Kumari Chitra Srivastava (1970) 1 SCC 121
13 State of Jammu and Kashmir v Bakshi Gulam Mohd AIR 1967 SC 122 [LNIND 1966 SC 139] [LNIND 1966 SC 139] [LNIND
1966 SC 139], State of Jammu and Kashmir v Bakshi Gulam Mohd [1966] Supp SCR 403.
14 Kirloskar Electric Co v Their Workmen AIR 1974 SC 2119.
Durga Shankar Mehta v Raghuraj Singh [1954] 1 SCR 267, Durga Shankar Mehta v Raghuraj Singh (1954) SCJ 723.
Binapani Dei (1967) 2 LLJ 266 [LNIND 1967 SC 37] [LNIND 1967 SC 37] [LNIND 1967 SC 37].
17 State of Punjab v Bakhtawar Singh AIR 1972 SC 2083, State of Punjab v Bakhtawar Singh (1972) 4 SCC 730, State of
Punjab v Bakhtawar Singh (1972) UJ 244; Bhagat Ram Patanga v State of Punjab AIR 1972 SC 1571 [LNIND 1972 SC 215]
[LNIND 1972 SC 215] [LNIND 1972 SC 215], Bhagat Ram Patanga v State of Punjab (1972) 2 SCC 170 [LNIND 1972 SC 215]
427
Page 24
[LNIND 1972 SC 215] [LNIND 1972 SC 215], Bhagat Ram Patanga v State of Punjab [1973] 1 SCR 92 [LNIND 1972 SC 215]
[LNIND 1972 SC 215] [LNIND 1972 SC 215].
18 Mahabir Prasad Santosh Kumar v State of Uttar Pradesh AIR 1970 SC 1302 [LNIND 1970 SC 188] [LNIND 1970 SC 188]
[LNIND 1970 SC 188], Mahabir Prasad Santosh Kumar v State of Uttar Pradesh (1970) 72 Bom LR 342.
19 Madan Gopal Agarwal v District Magistrate AIR 1972 SC 2656 [LNIND 1972 SC 488] [LNIND 1972 SC 488] [LNIND 1972
SC 488], Madan Gopal Agarwal v District Magistrate (1973) 1 SCC 89 [LNIND 1972 SC 488] [LNIND 1972 SC 488] [LNIND
1972 SC 488], Madan Gopal Agarwal v District Magistrate [1973] 2 SCR 610 [LNIND 1972 SC 488] [LNIND 1972 SC 488]
[LNIND 1972 SC 488].
20 Union of India v MB Patnaik AIR 1981 SC 858 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72], Union of
India v MB Patnaik (1981) 2 SCC 159 [LNIND 1981 SC 72] [LNIND 1981 SC 72] [LNIND 1981 SC 72], Union of India v MB
Patnaik (1981) SCC Lab 296.
21 Ranjit Thakur v Union of India AIR 1987 SC 2386 [LNIND 1987 SC 964] [LNIND 1987 SC 964] [LNIND 1987 SC 964], Ranjit
Thakur v Union of India (1987) 5 JT 93, Ranjit Thakur v Union of India (1987) 3 IJ Rep 658; Union of India v Major A Hssain
AIR 1998 SC 577 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568], Union of India v Major A Hssain
(1998) 1 SCC 537 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568], Union of India v Major A Hssain
(1997) 7 Scale 477 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568]; Union of India v RK Sharma AIR
2001 SC 3053 [LNIND 2001 SC 1984] [LNIND 2001 SC 1984] [LNIND 2001 SC 1984], Union of India v RK Sharma (2001) 9 JT
76, Union of India v RK Sharma (2001) 7 Scale 70 [LNIND 2001 SC 1984] [LNIND 2001 SC 1984] [LNIND 2001 SC 1984].
22 Spring Meadows Hospital v Harjol Ahluwalia through K S Ahluwalia AIR 1998 SC 1801 [LNIND 1998 SC 357] [LNIND 1998
SC 357] [LNIND 1998 SC 357], Spring Meadows Hospital v Harjol Ahluwalia through K S Ahluwalia (1998) (4) SCC 39 [LNIND
1998 SC 357] [LNIND 1998 SC 357] [LNIND 1998 SC 357], Spring Meadows Hospital v Harjol Ahluwalia through K S Ahluwalia
(1998) 3 SCJ 71.

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(4) CERTIORARI AND PROHIBITION/B. TO WHOM MAY
BE ISSUED/[005.291] Generally
[005.291] Generally The writs of certiorari1 or prohibition2 can be issued to a body that is bound to act fairly
or according to natural justice and it fails to do so3.
While prohibition can be issued to judicial and quasi-judicial bodies, the writ of certiorari can be issued to a
judicial, quasi-judicial, statutory or administrative body that has legal authority to determine questions
affecting the rights of a person4. So long as there is a possibility, however remote, of the body abusing its
powers, it would be wrong for the courts to abdicate their responsibility. Thus, the bodies which exercise
public functions are susceptible to judicial review whatever be the source of power5.
Certiorari may be issued to industrial tribunals, disciplinary authorities and court martial held under the Army
Act 19506.
3 Indian National Congress (I) v Institute of Social Welfare and Others (2002) 5 SCC 685 [LNIND 2002 SC 400] [LNIND 2002
SC 400] [LNIND 2002 SC 400]; Lakshmi Precision Screws Ltd v Ram Bahagat (2002) 6 SCC 552 (dismissal of a worker
without giving him a hearing was quashed; even thought the standing orders made no provision for giving a hearing to a worker,
the Supreme Court read the doctrine of natural justice being an inbuilt requirement of standing orders); Uptron India Ltd v
Shammi Bhan (1998) 6 SCC 538 [LNIND 1998 SC 164] [LNIND 1998 SC 164] [LNIND 1998 SC 164]; DK Yadav v JMA
Industries Ltd (1993) 3 SCC 259 [LNIND 1993 SC 443] [LNIND 1993 SC 443] [LNIND 1993 SC 443] (the cardinal point that has
to be borne in mind is whether the person concerned has had a reasonable opportunity of presenting his case and whether the
authority acts fairly, justly, reasonably and impartially).
4 R v Criminal Injuries Compensation Board exp Lain [1967] 2 All ER 770 (a public body that is required to determine the effect
on individual interests in a judicial manner would be subject to review by certiorari despite the fact that it was neither constituted
by a statute nor endowed with jurisdiction by a statute); R v Criminal Injuries Compensation Board exp Sehofield [1971] 1 WLR
428
Page 25
926.
5 R v Panel on Take overs and Mergers exp Datafin and Prudential Bache Securities Inc [1987] 1 All ER 564 (since the panel
has great powers, it would not be proper for the court to abdicate responsibility).
6 Union of India v A Hussain AIR 1998 SC 577 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568], Union
of India v A Hussain (1998) 1 SCC 537 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568], Union of India v
A Hussain (1997) 7 Scale 477 [LNIND 1997 SC 1568] [LNIND 1997 SC 1568] [LNIND 1997 SC 1568].

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(4) CERTIORARI AND PROHIBITION/C. ISSUANCE IN
CASE OF ERRORS OF LAW/[005.292] Introduction
[005.292] Introduction All errors of law can be placed in the following three categories:
(1) errors going to the jurisdiction, known as jurisdictional errors1;

(2) errors that are patent on the record2;
(3) errors of law pure and simple, that are neither jurisdictional nor patent.
Traditionally, while certiorari can be issued in case of jurisdictional and manifest errors it cannot be issued for
errors that do not fall in either category.
1 As to jurisdictional errors see [005.293].
2 As to patent errors see [005.294].

CASE OF ERRORS OF LAW/[005.293] Error of jurisdiction
[005.293] Error of jurisdiction An administrative body cannot exceed the power given to it and any action
taken by it in excess of its power is invalid1. Thus, when an authority is empowered to grant a stage carriage
permit for a maximum period of three years, it cannot grant the same for five years. Lack of jurisdiction may
also arise when an authority has no jurisdiction over the subject matter or the parties2. A jurisdiction
wrongfully assumed is liable to be set aside3. If an authority having jurisdiction to decide a matter under one
section of a statute cites a wrong section of law as the source of its jurisdiction, it provides no basis for the
issue of prohibition or certiorari4.
When the law provides that the best judgment assessment of sales tax could be made within three years, the
authority would be acting beyond its power if it seeks to make such an assessment after the prescribed
period5. Once a dispute is referred for adjudication to an industrial tribunal by the government6, it has no
power to cancel or supersede the reference7. Assessment of a tax under an unconstitutional law is a case of
want of jurisdiction to tax in the tax officer8.
A jurisdictional error may arise when a body having jurisdiction fails to exercise the same. Furthermore, if an
authority is not properly constituted according to law, then it cannot have any jurisdiction to act9.
When a statute requires three members to constitute a tribunal, a tribunal composed of only two members
will be acting without jurisdiction10. Want of jurisdiction may arise from the nature of the subject matter so
that the inferior body might not have authority to enter on the inquiry11.
429
Page 26
Where the jurisdiction of a body depends upon a preliminary finding of fact in a proceeding for writ of
certiorari, the court may determine whether or not that finding of fact is correct. By wrongly deciding such a
fact, the body cannot give itself jurisdiction where it has none12. A tribunal exceeds jurisdiction not only at the
threshold when it enters into an inquiry which it is not entitled to undertake, but it may enter into an inquiry
within its jurisdiction in the first instance and then operate in a manner which would deprive it of its
jurisdiction and render its decision a nullity13.
If a tribunal bases its decisions on extraneous considerations that it must not have taken into account or fails
to take into account a vital consideration that it must not have omitted, then it amounts to jurisdictional error.
Its decision becomes a nullity and certiorari may be issued to quash the tribunal's decision. An adjudicatory
body commits jurisdictional error when it comes to a decision that no reasonable man or body of men could
reasonably conclude14.
Lack of jurisdiction in a body cannot be cured by the consent of the parties. Even if a party submits to the
jurisdiction of an authority, the party is not estopped from later filing a writ petition on the ground that the
body in question acted without jurisdiction15. Lack of jurisdiction goes to the root of the matter16.
While an error of law affecting jurisdiction is reviewable in all cases on the ground of ultra vires, an error of
law going to the merits of the case is reviewable only when the error is apparent on the face of the record17.
However, this distinction introduces an element of artificiality, as it is not always rationally possible to
distinguish between the two types of errors of law. The problem of defining the concept of jurisdiction for the
purposes of judicial review is one of public policy rather than one of logic18.
Since, it is a difficult task to draw a distinction between the two types of errors of law, a view has been
expressed that the distinction be done away with and all errors of law be regarded as reviewable19.
1 Parry & Co Ltd v P C Pal, Judge of the Second Industrial Tribunal, Calcutta AIR 1970 SC 1334 [LNIND 1968 SC 358] [LNIND
1968 SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v P C Pal, Judge of the Second Industrial Tribunal, Calcutta (1970) 2 SCJ
433 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v P C Pal, Judge of the Second
Industrial Tribunal, Calcutta [1969] 2 SCR 976 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]; Chetkar Jha
v Viswanath Prasad Verma AIR 1970 SC 1832 [LNIND 1970 SC 268] [LNIND 1970 SC 268] [LNIND 1970 SC 268], Chetkar Jha
v Viswanath Prasad Verma (1970) Serv LR 805, Chetkar Jha v Viswanath Prasad Verma (1970) Pat LJR 557 [LNIND 1970 SC
268] [LNIND 1970 SC 268] [LNIND 1970 SC 268]; Radeshyam Khare v State of Madhya Pradesh AIR 1959 SC 107 [LNIND
1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113], Radeshyam Khare v State of Madhya Pradesh [1959] SCR 1440
[LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113], Radeshyam Khare v State of Madhya Pradesh (1959) SCJ
6 [LNIND 1958 SC 113] [LNIND 1958 SC 113] [LNIND 1958 SC 113]; Hari Vishnu Kamath v Ahmad Ishaque AIR 1955 SC 233
[LNIND 1954 SC 174] [LNIND 1954 SC 174] [LNIND 1954 SC 174]; Ebrahim Aboobaker v Custodian General of Evacuce
Property, New Delhi AIR 1952 SC 319 [LNIND 1952 SC 39] [LNIND 1952 SC 39] [LNIND 1952 SC 39], Ebrahim Aboobaker v
Custodian General of Evacuce Property, New Delhi [1952] SCR 696 [LNIND 1952 SC 39] [LNIND 1952 SC 39] [LNIND 1952
SC 39], Ebrahim Aboobaker v Custodian General of Evacuce Property, New Delhi (1952) SCJ 483 [LNIND 1952 SC 39] [LNIND
1952 SC 39] [LNIND 1952 SC 39]; Parry & Co Ltd Dare House, Madras v Commercial Employees Association, Madras AIR
1952 SC 179 [LNIND 1952 SC 25] [LNIND 1952 SC 25] [LNIND 1952 SC 25], Parry & Co Ltd Dare House, Madras v
Commercial Employees Association, Madras [1952] SCR 519 [LNIND 1952 SC 25] [LNIND 1952 SC 25] [LNIND 1952 SC 25],
Parry & Co Ltd Dare House, Madras v Commercial Employees Association, Madras (1952) SCJ 275 [LNIND 1952 SC 25]
[LNIND 1952 SC 25] [LNIND 1952 SC 25]; Geeta Bajaj v State of Rajasthan AIR 1982 Raj 48, Geeta Bajaj v State of Rajasthan
(1982) Raj LR 67.
2 Newspapers Ltd v State Industrial Tribunal AIR 1957 SC 532 [LNIND 1957 SC 28] [LNIND 1957 SC 28] [LNIND 1957 SC 28],
Newspapers Ltd v State Industrial Tribunal [1957] 754, Newspapers Ltd v State Industrial Tribunal (1957) SCJ 566 [LNIND
1957 SC 28] [LNIND 1957 SC 28] [LNIND 1957 SC 28] (the government had referred a dispute, which was not an industrial
dispute, for adjudication to an industrial tribunal; it was held that the tribunal had no jurisdiction to make an award in the
dispute); Modern Match Industries, Gudiyatam v Labour Appellate Tribunal of India, Madras AIR 1957 Mad 688 [LNIND 1956
MAD 174] [LNIND 1956 MAD 174] [LNIND 1956 MAD 174], Modern Match Industries, Gudiyatam v Labour Appellate Tribunal
of India, Madras (1957) 2 Mad LJ 135, Modern Match Industries, Gudiyatam v Labour Appellate Tribunal of India, Madras
(1958) 1 Lab LJ 69(if the workers are not workmen within the meaning of Industrial Disputes Act 1947 s 2(s), a claim on their
behalf will not be an industrial dispute and an industrial tribunal will have no jurisdiction to adjudicate upon the matter).
3 Chetkar Jha v Viswanath Prasad Verma AIR 1970 SC 1832 [LNIND 1970 SC 268] [LNIND 1970 SC 268] [LNIND 1970 SC
268], Chetkar Jha v Viswanath Prasad Verma (1970) Serv LR 805, Chetkar Jha v Viswanath Prasad Verma (1970) Pat LJR 557
[LNIND 1970 SC 268] [LNIND 1970 SC 268] [LNIND 1970 SC 268] (the Chancellor of the Patna University annulled a resolution
passed by the syndicate; the Supreme Court set aside the Chancellor's order because it was passed without jurisdiction; the
jurisdiction was assumed by the Chancellor wrongly by misinterpreting the Act and the university statutes); J K Chaudhuri v R
430
Page 27
K Datta Gupta AIR 1958 SC 722 [LNIND 1958 SC 43] [LNIND 1958 SC 43] [LNIND 1958 SC 43], J K Chaudhuri v R K Datta
Gupta (1958) SCJ 908 [LNIND 1958 SC 43] [LNIND 1958 SC 43] [LNIND 1958 SC 43], J K Chaudhuri v R K Datta Gupta
(1958) SCA 748 [LNIND 1958 SC 43] [LNIND 1958 SC 43] [LNIND 1958 SC 43] (the governing body of a college dismissed the
principal, but the university concerned directed the governing body to reinstate him; under the relevant statute, the university
could interfere with the decision of the governing body in the case of a 'teacher'; the term 'teacher', as interpreted by the
Supreme Court, did not include the principal; the university, therefore, acted without jurisdiction).
4 Isha Beevi v Tax Recovery Officer AIR 1975 SC 2135 [LNIND 1975 SC 326] [LNIND 1975 SC 326] [LNIND 1975 SC 326],
Isha Beevi v Tax Recovery Officer (1976) 1 SCC 70 [LNIND 1975 SC 326] [LNIND 1975 SC 326] [LNIND 1975 SC 326], Isha
Beevi v Tax Recovery Officer [1976] 1 SCR 681 [LNIND 1975 SC 326] [LNIND 1975 SC 326] [LNIND 1975 SC 326] (prohibition
was sought to quash notices issued by the tax recovery officer to commence proceedings to recover income tax dues by
attaching assessee's property; the petition was rejected); Income Tax Officer v Seghu Buchiah Setty AIR 1964 SC 1473
[LNIND 1964 SC 75] [LNIND 1964 SC 75] [LNIND 1964 SC 75]; L Hazari Mal Kuthiala v Income Tax Officer AIR 1961 SC 200
[LNIND 1961 SC 481] [LNIND 1961 SC 481] [LNIND 1961 SC 481]; P M Bharucha v G S Venkatesan (1969) 74 ITR 513,
(Guj),. As to the writs of certiorari and prohibition see [005.289] and following.
5 Madan Lal v Excise and Taxation Officer, Amritsar AIR 1961 SC 1565 [LNIND 1961 SC 160] [LNIND 1961 SC 160] [LNIND
1961 SC 160], Madan Lal v Excise and Taxation Officer, Amritsar [1962] 1 SCR 823 [LNIND 1961 SC 160] [LNIND 1961 SC
160] [LNIND 1961 SC 160], Madan Lal v Excise and Taxation Officer, Amritsar (1961) 2 SCJ 580.
7 State of Bihar v D N Ganguly AIR 1958 SC 1018 [LNIND 1958 SC 92] [LNIND 1958 SC 92] [LNIND 1958 SC 92], State of
Bihar v D N Ganguly (1958) SCA 1082, State of Bihar v D N Ganguly (1958) 2 Lab LJ 634.
8 Firm ATB Mehtab Majid and Co v State of Madras AIR 1963 SC 928 [LNIND 1962 SC 162] [LNIND 1962 SC 162] [LNIND
1962 SC 162], Firm ATB Mehtab Majid and Co v State of Madras [1963] 2 SCR 435, Firm ATB Mehtab Majid and Co v State of
Madras (1964) 1 SCJ 355; Commissioner of Income Tax, Gujarat v A Raman and Co AIR 1968 SC 49 [LNIND 1967 SC 206]
[LNIND 1967 SC 206] [LNIND 1967 SC 206], Commissioner of Income Tax, Gujarat v A Raman and Co [1968] 1 SCR 10
[LNIND 1967 SC 206] [LNIND 1967 SC 206] [LNIND 1967 SC 206], Commissioner of Income Tax, Gujarat v A Raman and Co
(1968) 67 ITR 11 (the condition precedent for reopening assessment of income tax by an income tax officer is that in
consequence of information in his possession, he has reason to believe that income chargeable to tax has escaped
assessment for any assessment year; a writ can be issued if this condition precedent for the exercise of jurisdiction by the
income tax officer did not exist).
9 Mayapati v State of Haryana AIR 1973 P & H 356, Mayapati v State of Haryana (1972) Pun LJ 576, Mayapati v State of
Haryana (1972) Rev LR 722 (under the Land Acquisition Act 1894, before the state government issues a notification acquiring
property under s 6, an inquiry is to be held by the collector under s 5A; an inquiry held by the general assistant and not the
collector will be without jurisdiction; consequently s 6 notification will also be illegal; hearing of objections under s 5A by a duly
appointed collector is sine qua non of all further proceedings).
10 Kama Umi Isa Ammal v Rama Kudamban AIR 1953 Mad 129 [LNIND 1952 MAD 133] [LNIND 1952 MAD 133] [LNIND 1952
MAD 133].
11 Management of Express Newspapers Pvt Ltd v Workers AIR 1963 SC 569 [LNIND 1962 SC 253] [LNIND 1962 SC 253]
[LNIND 1962 SC 253], Management of Express Newspapers Pvt Ltd v Workers [1963] 3 SCR 540 [LNIND 1962 SC 253]
[LNIND 1962 SC 253] [LNIND 1962 SC 253], Management of Express Newspapers Pvt Ltd v Workers (1962) 2 LLJ 227;
Mayapati v State of Haryana AIR 1973 P & H 356, Mayapati v State of Haryana (1972) Pun LJ 576, Mayapati v State of
Haryana (1972) Rev LR 722.
12 Raja Textiles Ltd, Rampur v Income Tax Officer, Rampur AIR 1973 SC 1362, Raja Textiles Ltd, Rampur v Income Tax
Officer, Rampur (1972) 1 SCC 633, Raja Textiles Ltd, Rampur v Income Tax Officer, Rampur (1973) 1 SCC 633; State of
Madhya Pradesh v Sardar JK Jadav AIR 1968 SC 1186 [LNIND 1968 SC 15] [LNIND 1968 SC 15] [LNIND 1968 SC 15], State
of Madhya Pradesh v Sardar JK Jadav [1968] 2 SCR 823 [LNIND 1968 SC 15] [LNIND 1968 SC 15] [LNIND 1968 SC 15], State
of Madhya Pradesh v Sardar JK Jadav (1968) 2 SCJ 863 [LNIND 1968 SC 15] [LNIND 1968 SC 15] [LNIND 1968 SC 15]; Raja
Anand Brahma Shah v State of Uttar Pradesh AIR 1967 SC 1081 [LNIND 1966 SC 190] [LNIND 1966 SC 190] [LNIND 1966 SC
190], Raja Anand Brahma Shah v State of Uttar Pradesh [1967] 1 SCR 373 [LNIND 1966 SC 190] [LNIND 1966 SC 190]
[LNIND 1966 SC 190].
13 Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 (jurisdiction of an inferior tribunal is not determinable
only at the outset of its inquiry and if the tribunal has jurisdiction on a matter in the first instance, it might exceed its jurisdiction).
14 Wednesbury Corpn v Ministry of Housing and Local Government [1965] 1 All ER 186, Wednesbury Corpn v Ministry of
Housing and Local Government [1965] 1 WLR 261, CA.
15 Essex County Council v Essex Incorporated Congregational Church Union [1963] AC 808; Recal Communications In Re
[1980] 2 All ER 634.
16 Dayalal N Joshi v State Transport Authority, Orissa, Cuttack AIR 1973 Ori 39, Dayalal N Joshi v State Transport Authority,
Orissa, Cuttack ILR (1973) Cat 106; Mayapati v State of Haryana AIR 1973 P & H 356, Mayapati v State of Haryana (1972)
Pun LJ 576, Mayapati v State of Haryana (1972) Rev LR 722.
431
Page 28
17 See Wade, 'Anglo American Adm Law, More Reflections' (1966) 82 LQR 226. As to the meaning of review see CIVIL
PROCEDURE[65.773].
18
See De Smith, 'Judicial Review of Administrative Action' (1980) p 112. Ujjam Bai v State of Uttar Pradesh AIR 1962 SC 1621
[LNIND 1962 SC 584] [LNIND 1962 SC 584] [LNIND 1962 SC 584], Ujjam Bai v State of Uttar Pradesh [1963] 1 SCR 778
[LNIND 1961 SC 222] [LNIND 1961 SC 222] [LNIND 1961 SC 222], Ujjam Bai v State of Uttar Pradesh (1963) 1 SCA 1(the
Supreme Court held that it would not entertain a petition under the Constitution of India art 32 if a quasi judicial authority acting
within its jurisdiction merely misconstrued a law; the petitioner came to the Supreme Court under the Constitution of India art 32
as the State of Uttar Pradesh had sought to tax sale transactions of bidis manufactured by him; whether the transactions were
taxable or not depended on the interpretation of a notification issued by the government; since the mistake involved was only
that of misconstruction of law, the Supreme Court, by majority, refused to intervene under the Constitution of India art 32; where
a quasi judicial authority has jurisdiction to decide a matter, it does not lose its jurisdiction by coming to a wrong conclusion,
whether it is wrong in law or fact). See contra State Trading Corporation of India Ltd v Sate of Mysore AIR 1963 SC 548
[LNIND 1962 SC 281] [LNIND 1962 SC 281] [LNIND 1962 SC 281], State Trading Corporation of India Ltd v Sate of Mysore
[1963] 3 SCR 792 [LNIND 1962 SC 281] [LNIND 1962 SC 281] [LNIND 1962 SC 281], State Trading Corporation of India Ltd v
Sate of Mysore (1963) 4 STC 188(under the Constitution of India and the Central Sales Tax Act 1956, a state cannot tax an
interstate sale; an assessment of sales tax on a sale was challenged as falling out of the jurisdiction of the assessing authority
on the ground that the sale in question was an interstate sale; it was argued in favour of the order that the authority acting in a
quasi judicial capacity had jurisdiction to decide whether a particular sale was intrastate or interstate and any error committed
by it within its jurisdiction could not be challenged in a petition under the Constitution of India art 32; the Supreme Court,
however, held that the authority had no jurisdiction to tax an interstate sale because of the constitutional prohibition and it could
not give jurisdiction to itself to do so by deciding a collateral fact wrongly).
The following cases illustrate the difficulties faced by the Courts in drawing a distinction between jurisdictional error and error of
law:
Tata Iron and Steel Co Ltd, Bombay v S R Sarkar AIR 1961 SC 65 [LNIND 1960 SC 184] [LNIND 1960 SC 184] [LNIND 1960
SC 184], Tata Iron and Steel Co Ltd, Bombay v S R Sarkar [1961] 1 SCR 379 [LNIND 1960 SC 184] [LNIND 1960 SC 184]
[LNIND 1960 SC 184], Tata Iron and Steel Co Ltd, Bombay v S R Sarkar (1961) 1 SCA 364 [LNIND 1960 SC 184] [LNIND 1960
SC 184] [LNIND 1960 SC 184] (taxation of interstate sale transactions wrongly by a State was regarded as an error apparent on
the face of the record); Pioneer Traders v Chief Controller of Imports and Exports AIR 1963 SC 734 [LNIND 1962 SC 319]
[LNIND 1962 SC 319] [LNIND 1962 SC 319], Pioneer Traders v Chief Controller of Imports and Exports [1963] Supp (1) SCR
349 [LNIND 1962 SC 319] [LNIND 1962 SC 319] [LNIND 1962 SC 319], Pioneer Traders v Chief Controller of Imports and
Exports (1964) 1 SCJ 595 [LNIND 1962 SC 319] [LNIND 1962 SC 319] [LNIND 1962 SC 319](the Government of India
extended the Sea Customs Act 1878, the Imports and Exports (Control) Act 1947 and other statutes to Pondicherry by a
statutory order; the order saved all things done or omitted to be done before 1 November 1954 from the statutes so extended;
the petitioner had placed orders for imports before the said date but the goods arrived at the customs after that date; the
customs authorities seized the goods on arrival on the ground of contravention of the Imports and Exports (Control) Act 1950;
the petitioner challenged the order through a writ petition under the Constitution of India art 32 alleging infringement of art 19(1)
(g) on the ground that the customs authorities were acting without jurisdiction; the Court refused to intervene on the ground that
the authorities were discharging a quasi judicial function and were acting within jurisdiction; the authorities might either be
taking a wrong view of the facts or misconstruing the law in question but in none of these situations the Court could intervene
under the Constitution of India art 32); Kamala Mills Ltd v Sate of Bombay AIR 1965 SC 1942 [LNIND 1965 SC 147] [LNIND
1965 SC 147] [LNIND 1965 SC 147], Kamala Mills Ltd v Sate of Bombay [1966] 1 SCR 64 [LNIND 1965 SC 147] [LNIND 1965
SC 147] [LNIND 1965 SC 147], Kamala Mills Ltd v Sate of Bombay (1965) 16 STC 613 [LNIND 1965 SC 147] [LNIND 1965 SC
147] [LNIND 1965 SC 147] (a fnding recorded by a taxing authority as to the taxability of the given transaction was a finding
within its jurisdiction); J Fernandez v Chief Controller of Imports and Exports AIR 1975 SC 1208 [LNIND 1975 SC 104] [LNIND
1975 SC 104] [LNIND 1975 SC 104], J Fernandez v Chief Controller of Imports and Exports (1975) 1 SCC 716 [LNIND 1975
SC 104] [LNIND 1975 SC 104] [LNIND 1975 SC 104], J Fernandez v Chief Controller of Imports and Exports [1975] 3 SCR 867
19 Pearlman v Harrow School (1979) 3 QB 56 (an error of jurisdiction can equally well be described as an error within
jurisdiction; so fine is this distinction that in all cases, the choice is that of the court whether to interfere with an inferior tribunal
on a point of law; if it chooses to interfere, it can formulate the decision in terms of jurisdictional error; the court may say that the
tribunal below had no jurisdiction to decide this point wrongly as it did; if the court does not choose to interfere it can say that
the court had jurisdiction to decide it wrongly and did so); Racal Communications In Re (1980) 2 All ER 634 (if the
administrative tribunal or authority have asked themselves the wrong question and answered that they have done something
that the Act does not empower them to do, their decision is a nullity); R v Chief Immigration Officer ex p Kharrazi (1980) 3 All
ER 373; Anisminic Ltd v Foreign Compensation Commission (1969) 2 AC 147 (the Egyptian Government paid a sum of money
to the UK Government to meet claims against it in respect of loss caused by its sequestration of the British property; it was the
job of the commission constituted under the Foreign Compensation Act 1950 to adjudicate upon the claims made against this
amount; an order in council required the commission to treat a claim as established if a claimant satisfied it as regards its
nationality; the commission took the view that Anisminic had not made out its case for compensation; it read the order in council
as requiring Anisminic to satisfy not only that it was British but also that its successors in title were also British ; this decision of
the commission was challenged before the court through a suit for declaration; the House of Lords held by a majority that the
commission had misinterpreted the order in council in that Anisminic did not have to satisfy it that its successors in title were
British; therefore, when the commission rejected Anisminic's claim, it based its decision on a matter which it had no right to take
432
Page 29
into account or that it made an inquiry which the order in council did not empower it to make and that the commission's decision
was therefore a nullity); Attorney General v Ryan, (1980) 2 WLR 143 (a decision affecting the legal rights of an individual which
is arrived at by a procedure which offends against the principles of natural justice is outside the jurisdiction of the decision
making authority.

CASE OF ERRORS OF LAW/[005.294] Patent error of law
[005.294] Patent error of law In order to attract the writ of prohibition1 or certiorari2, a mere error of law is
not sufficient; it must be one that is manifest or patent on the face of the record. Mere formal or technical
errors, even of law, are not sufficient3.
An error is apparent on the face of the record if it can be ascertained merely by examining the record without
having to have recourse to other evidence. Whether or not an error is an error of law apparent on the face of
record, must always depend on the facts and circumstances of each case, upon the nature and scope of the
legal provision said to have been misconstrued or contravened and the subjective element of the judge
concerned. An objective criterion cannot be laid down, as the nature of the error is dependent upon the
subjective element4.
An error that has to be established by lengthy and complicated arguments is not an error of law apparent on
the face of the record5. However, this test is not articulate and may fail because what might be considered by
one judge as self-evident might not be considered so by another judge6.
Where it is manifest or clear that: (1) the conclusion of law recorded by an inferior court or tribunal is based
on an obvious misinterpretation of the relevant statutory provision; or (2) the conclusion is in ignorance or
disregard of a statutory provision; or (3) the conclusion is expressly founded on reasons which are wrong in
law, the said conclusion can be corrected by a writ of certiorari7. Where the question involved is one of
interpreting a statutory provision which is reasonably open to two interpretations, of which the authority
concerned adopts one interpretation, certiorari would not be issued merely on the ground that the view taken
by the authority appears to be less reasonable than the alternative construction as it is not an error of law
apparent on the face of the record8. It amounts to a patent error of law if an adjudicatory body disposes of a
matter without applying its mind to a material circumstance that has been duly brought to its notice9.
Every quasi-judicial body in a state and the state government is bound to follow the rulings of the high court,
unless reversed by the Supreme Court10. Similarly, if an authority ignores relevant considerations or takes
into account irrelevant considerations in reaching its decisions, it amounts to a patent error of law11. Now,
such flaws in decision making may even be regarded as jurisdictional errors12. A court may not intervene
when a body disregards not a mandatory provision of law but executive instructions or directions that have
no force of law13.
For an order of a tribunal to be amenable to judicial review on the ground of an error of law apparent on the
face of record, it must necessarily be a speaking order, that is, it must set out the reasons for the decision
and must show a clear ignorance or disregard of the provisions of law14. When a person obtains an order
from a tribunal by fraud, the high court is bound to look into the matter and exercise its jurisdiction15 and
quash such an order. Fraud and justice are inconsistent with each other and can never go together16.
3 J D Jain v Management of State Bank of India AIR 1982 SC 673 [LNIND 1981 SC 465] [LNIND 1981 SC 465] [LNIND 1981
SC 465], J D Jain v Management of State Bank of India (1982) 1 SCC 143 [LNIND 1981 SC 465] [LNIND 1981 SC 465] [LNIND
1981 SC 465], J D Jain v Management of State Bank of India [1982] 2 SCR 227 [LNIND 1981 SC 465] [LNIND 1981 SC 465]
433
Page 30
[LNIND 1981 SC 465]; State of Uttar Pradesh v Prescribed Authority, Kichhu (Rudrapur), Nainital AIR 1982 All 151, State of
Uttar Pradesh v Prescribed Authority, Kichhu (Rudrapur), Nainital (1951) UPLT (NOC) 62; Padmananda Kempari v Assam
Board of Revenue, Gauhati AIR 1971 Assam 16, Padmananda Kempari v Assam Board of Revenue, Gauhati (1970) SB Assam
LR 224.
4 T Prem Sagar v Standard Vacuum Oil Co, Madras AIR 1965 SC 111 [LNIND 1963 SC 298] [LNIND 1963 SC 298] [LNIND
1963 SC 298], T Prem Sagar v Standard Vacuum Oil Co, Madras [1964] 5 SCR 1030 [LNIND 1963 SC 298] [LNIND 1963 SC
298] [LNIND 1963 SC 298], T Prem Sagar v Standard Vacuum Oil Co, Madras (1964) 1 LLJ 47 [LNIND 1963 SC 298] [LNIND
1963 SC 298] [LNIND 1963 SC 298]; K M Shanmugam, Proprietor, KMS Transport, Tanjore, Madras State v SRVS Pvt Ltd AIR
1963 SC 1626 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25], K M Shanmugam, Proprietor, KMS Transport,
Tanjore, Madras State v SRVS Pvt Ltd [1964] 1 SCR 809 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25], K M
Shanmugam, Proprietor, KMS Transport, Tanjore, Madras State v SRVS Pvt Ltd [1964] 2 SCJ 120 [LNIND 1963 SC 25] [LNIND
1963 SC 25] [LNIND 1963 SC 25].
5 Satyanarayan Laxminarayan Hegde v Mallikarjun Bhavanappa Tirumale AIR 1960 SC 137, Satyanarayan Laxminarayan
Hegde v Mallikarjun Bhavanappa Tirumale (1960) SCJ 1065, Satyanarayan Laxminarayan Hegde v Mallikarjun Bhavanappa
Tirumale [1960] 1 SCR 890.
6 Baldwin and Frances Ltd v Patents Appeal Tribunal, (1959) 2 WLR 826 (illustrates the difficulties of applying this rule); Hari
Vishnu Kamath v Ahmad Ishaque AIR 1955 SC 233 [LNIND 1954 SC 174] [LNIND 1954 SC 174] [LNIND 1954 SC 174].
7 Ram Piari v Rallia Ram AIR 1982 SC 1314, Ram Piari v Rallia Ram (1982) 2 SCC 536, Ram Piari v Rallia Ram (1982) 1
Scale 574; Murlidhar Aggarwal v State of Uttar Pradesh AIR 1974 SC 1924 [LNIND 1974 SC 202] [LNIND 1974 SC 202]
[LNIND 1974 SC 202], Murlidhar Aggarwal v State of Uttar Pradesh (1974) 2 SCC 472, Murlidhar Aggarwal v State of Uttar
Pradesh [1975] 1 SCR 575 [LNIND 1974 SC 202] [LNIND 1974 SC 202] [LNIND 1974 SC 202]; Chetkar Jha v Viswanath
Prasad Verma AIR 1970 SC 1832 [LNIND 1970 SC 268] [LNIND 1970 SC 268] [LNIND 1970 SC 268], Chetkar Jha v Viswanath
Prasad Verma (1970) Serv LR 805, Chetkar Jha v Viswanath Prasad Verma (1970) Pat LJR 557 [LNIND 1970 SC 268] [LNIND
1970 SC 268] [LNIND 1970 SC 268]; Sri Rama Vilas Service v C Chandrasekaran AIR 1965 SC 107 [LNIND 1963 SC 289]
[LNIND 1963 SC 289] [LNIND 1963 SC 289], Sri Rama Vilas Service v C Chandrasekaran [1964] 5 SCR 869 [LNIND 1963 SC
289] [LNIND 1963 SC 289] [LNIND 1963 SC 289]; Syed Yakoob v K S Rahdakrishnan AIR 1964 SC 477, Syed Yakoob v K S
Rahdakrishnan [1964] 5 SCR 64 [LNIND 1963 SC 228] [LNIND 1963 SC 228] [LNIND 1963 SC 228]; Shri Ambica Mills Col Ltd
v S B Bhatt AIR 1961 SC 970 [LNIND 1960 SC 334] [LNIND 1960 SC 334] [LNIND 1960 SC 334], Shri Ambica Mills Col Ltd v S
B Bhatt [1961] 3 SCR 220 [LNIND 1960 SC 334] [LNIND 1960 SC 334] [LNIND 1960 SC 334], Shri Ambica Mills Col Ltd v S B
Bhatt (1961) 1 SCJ 643 [LNIND 1960 SC 334] [LNIND 1960 SC 334] [LNIND 1960 SC 334] (the construction placed by the
tribunal on two clauses of an agreement between the Ahmedabad Mill Owners' Association and the Textile Labour Association
was held to be patently and manifestly erroneous; two provisions of law were misread ignoring the very object with which they
were made); Hind Trading Co v India (the Supreme Court quashed an order of the collector of customs, which had been
confirmed on appeal by the Board of Revenue and the Government of India, by issuing certiorari holding that when a tribunal
comes to a conclusion which could not reasonably be entertained by it if it properly understood the relevant enactment, then it
falls into an error in point of law; that though mere formal and technical errors of law are not sufficient to attract the writ, obvious
misinterpretations of ignorance of law, disregard of law, wrong reasons for taking a decisions mandate issuance of the writ);
Sohan Modi v Special Court under Andhra Pradesh Land Grabbing (Prohibition) Act, Hyderabad AIR 2000 AP 482 [LNIND 2000
AP 66] [LNIND 2000 AP 66] [LNIND 2000 AP 66], Sohan Modi v Special Court under Andhra Pradesh Land Grabbing
(Prohibition) Act, Hyderabad (2000) 2 Andh LJ 315, Sohan Modi v Special Court under Andhra Pradesh Land Grabbing
(Prohibition) Act, Hyderabad (2002) 2 Andh LD 468; K P Nanju Nath v State of Karnataka AIR 1976 Kant 158 [LNIND 1976
KANT 47] [LNIND 1976 KANT 47] [LNIND 1976 KANT 47], K P Nanju Nath v State of Karnataka (1976) 1 Kant LJ 380 [LNIND
1976 KANT 47] [LNIND 1976 KANT 47] [LNIND 1976 KANT 47], K P Nanju Nath v State of Karnataka (1976) ILR 1976 Kant
946 [LNIND 1976 KANT 47] [LNIND 1976 KANT 47] [LNIND 1976 KANT 47]
8 V V Iyar of Bombay v Jasjit Singh, Collector of Customs AIR 1973 SC 194, V V Iyar of Bombay v Jasjit Singh, Collector of
Customs (1973) 1 SCC 148, V V Iyar of Bombay v Jasjit Singh, Collector of Customs (1973) 1 SCJ 637; Principal, Patna
College, Patna v Kalyan Srinivas Raman AIR 1966 SC 707 [LNIND 1965 SC 234] [LNIND 1965 SC 234] [LNIND 1965 SC 234],
Principal, Patna College, Patna v Kalyan Srinivas Raman [1966] 1 SCR 974 [LNIND 1965 SC 234] [LNIND 1965 SC 234]
[LNIND 1965 SC 234], Principal, Patna College, Patna v Kalyan Srinivas Raman (1966) 1 SCA 618 [LNIND 1965 SC 234]
[LNIND 1965 SC 234] [LNIND 1965 SC 234]; Syed Yakoob v K S Rahdakrishnan AIR 1964 SC 477, Syed Yakoob v K S
Rahdakrishnan [1964] 5 SCR 64 [LNIND 1963 SC 228] [LNIND 1963 SC 228] [LNIND 1963 SC 228]; Collector of Customs,
Madras v K Ganga Setty AIR 1963 SC 1319 [LNIND 1962 SC 181] [LNIND 1962 SC 181] [LNIND 1962 SC 181], Collector of
Customs, Madras v K Ganga Setty [1963] 2 SCR 277 [LNIND 1962 SC 181] [LNIND 1962 SC 181] [LNIND 1962 SC 181],
Collector of Customs, Madras v K Ganga Setty (1963) 2 SCJ 235 [LNIND 1962 SC 181] [LNIND 1962 SC 181] [LNIND 1962 SC
181].
v Union of India (1976) 3 SCR 1042 [LNIND 1976 SC 158] [LNIND 1976 SC 158] [LNIND 1976 SC 158].
10 K P Nanju Nath v State of Karnataka AIR 1976 Kant 158 [LNIND 1976 KANT 47] [LNIND 1976 KANT 47] [LNIND 1976
KANT 47], K P Nanju Nath v State of Karnataka (1976) 1 Kant LJ 380 [LNIND 1976 KANT 47] [LNIND 1976 KANT 47] [LNIND
1976 KANT 47] (the high court quashed the order of the state government, made in its adjudicative capacity, because it had
disregarded the rulings of the court; the order was thus held to be suffering from an error apparent on the face of the record);
Collector of Customs v Pednekar & Co AIR 1976 SC 1408 [LNIND 1976 SC 148] [LNIND 1976 SC 148] [LNIND 1976 SC 148],
434
Page 31
Collector of Customs v Pednekar & Co (1976) 3 SCC 790 [LNIND 1976 SC 148] [LNIND 1976 SC 148] [LNIND 1976 SC 148],
Collector of Customs v Pednekar & Co [1976] 3 SCR 971 [LNIND 1976 SC 148] [LNIND 1976 SC 148] [LNIND 1976 SC 148];
Sri Krishan v Kurukshetra University, Kurukshetra AIR 1976 SC 376 [LNIND 1975 SC 446] [LNIND 1975 SC 446] [LNIND 1975
SC 446], Sri Krishan v Kurukshetra University, Kurukshetra (1976) 1 SCC 311 [LNIND 1975 SC 446] [LNIND 1975 SC 446]
[LNIND 1975 SC 446], Sri Krishan v Kurukshetra University, Kurukshetra [1976] 2 SCR 722 [LNIND 1975 SC 446] [LNIND 1975
SC 446] [LNIND 1975 SC 446].
11 Murlidhar Aggarwal v State of Uttar Pradesh AIR 1974 SC 1924 [LNIND 1974 SC 202] [LNIND 1974 SC 202] [LNIND 1974
SC 202], Murlidhar Aggarwal v State of Uttar Pradesh (1974) 2 SCC 472, Murlidhar Aggarwal v State of Uttar Pradesh [1975] 1
SCR 575 [LNIND 1974 SC 202] [LNIND 1974 SC 202] [LNIND 1974 SC 202]; Sri Rama Vilas Service v C Chandrasekaran AIR
1965 SC 107 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963 SC 289], Sri Rama Vilas Service v C Chandrasekaran
[1964] 5 SCR 869 [LNIND 1963 SC 289] [LNIND 1963 SC 289] [LNIND 1963 SC 289]; K M Shanmugam, Proprietor, KMS
Transport, Tanjore, Madras State v SRVS Pvt Ltd AIR 1963 SC 1626 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963
SC 25], K M Shanmugam, Proprietor, KMS Transport, Tanjore, Madras State v SRVS Pvt Ltd [1964] 1 SCR 809 [LNIND 1963
SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25], K M Shanmugam, Proprietor, KMS Transport, Tanjore, Madras State v
SRVS Pvt Ltd [1964] 2 SCJ 120 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25].
12 Formerly, these flaws in discretionary decisions were regarded as mere errors of law for which mandamus could be issued
but not certiorari. This introduced artificial conceptualism and an illogical distinction between mandamus and certiorari as
regards the scope of review under each. The position now is that certiorari may be issued to quash a decision or order vitiated
by such defects: SN Jain, Abuse of Discretion--Scope of Judicial Review to Correct Errors of Law through Mandamus and
Certiorari, v (1964) 6 JILI 316 (see [005.293]).
13 K M Shanmugam, Proprietor, KMS Transport, Tanjore, Madras State v SRVS Pvt Ltd AIR 1963 SC 1626 [LNIND 1963 SC
25] [LNIND 1963 SC 25] [LNIND 1963 SC 25], K M Shanmugam, Proprietor, KMS Transport, Tanjore, Madras State v SRVS
Pvt Ltd [1964] 1 SCR 809 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC 25], K M Shanmugam, Proprietor, KMS
Transport, Tanjore, Madras State v SRVS Pvt Ltd [1964] 2 SCJ 120 [LNIND 1963 SC 25] [LNIND 1963 SC 25] [LNIND 1963 SC
25]; Raman and Raman v State of Madras AIR 1959 SC 694 [LNIND 1959 SC 20] [LNIND 1959 SC 20] [LNIND 1959 SC 20],
Raman and Raman v State of Madras [1959] Supp 2 SCR 227, Raman and Raman v State of Madras (1959) SCJ 1156; R
Abdulla Rowther v State Transport Appellate Tribunal, Madras AIR 1959 SC 896.
14 Prem Singh v Deputy Custodian General Evacuee Property 1958 SCJ 29.
15 Ie jurisdiction under the Constitution of India art 226 (see generally[80]CONSTITUTIONAL LAW).
16 United India Insurance Co Ltd v Rajendra Singh AIR 2000 SC 1165 [LNIND 2000 SC 477] [LNIND 2000 SC 477] [LNIND
2000 SC 477], United India Insurance Co Ltd v Rajendra Singh (2000) SCC (Cr) 726, United India Insurance Co Ltd v Rajendra
Singh (2000) 2 Supreme 294; Lazarus Estates Ltd v Beasley, (1956) 1 All ER 341 (a court cannot allow any person to keep an
advantage which he has obtained by fraud; a judgment of a court or an order of a Minister cannot be allowed to stand, if it has
been obtained by fraud).

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(4) CERTIORARI AND PROHIBITION/D. ISSUANCE IN
CASE OF ERRORS OF FACT/[005.295] Findings of fact
[005.295] Findings of fact Certiorari1 does not lie to correct mere errors of fact even though these may be
apparent on the face of the record, as the writ court does not ordinarily review findings of fact by tribunals2.
This is to prevent the tribunals from becoming authorities that merely function as transmitting agencies of
evidence to the court3. This is in line with the judicial policy of treating the disciplinary authority as the final
judge of facts4. However, in order to prevent these bodies from functioning arbitrarily, a court may quash a
finding of fact if: (1) it is based on no evidence; or (2) it is completely unsupported by evidence; or (3) the
findings are perverse.
A finding without any evidence to support it is regarded as an error of law5 However, if there is some
evidence in support of the findings of fact by the adjudicatory body, then the writ court does not review
reassess, reappreciate or reappraise the same and generally abstains from substituting its own conclusions
of fact for that recorded by the lower adjudicating body6. The adequacy or sufficiency of evidence led on a
point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the
tribunal and these points cannot be agitated before the writ court7. Hence, certiorari or prohibition8 is not
issued if there is some probative evidence to support a finding of fact9. The rule of no evidence envisages
that if there is some evidence to support a finding of fact, the court will not interfere with it10.
435
Page 32
The findings of fact may also be questioned if while recording them, the adjudicatory body erroneously
refuses to admit admissible and material evidence or erroneously admits inadmissible evidence which
influences the impugned findings. Judicial review cannot be denied when a finding shocks the judicial
conscience of the court11.
Unlike a court, an adjudicatory body is not bound to follow technical rules of evidence. Such a body may take
into account any material having some probative value12. The findings of fact are not challengeable merely
on the ground that the evidence to sustain them is inadequate or insufficient. Adequacy, reliability or
sufficiency of evidence on a point and the inference of facts to be drawn therefrom are matters exclusively for
the adjudicatory body concerned13.
2 P Ksailingam v PSG College of Technology AIR 1981 SC 789 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P
Ksailingam v PSG College of Technology (1981) 1 SCC 405 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9], P
Ksailingam v PSG College of Technology [1981] 2 SCR 490 [LNIND 1981 SC 9] [LNIND 1981 SC 9] [LNIND 1981 SC 9]; M
Naina Mohammed v KA Natarajan AIR 1975 SC 1867 [LNIND 1975 SC 224] [LNIND 1975 SC 224] [LNIND 1975 SC 224], M
Naina Mohammed v KA Natarajan (1975) 2 SCC 352 [LNIND 1975 SC 224] [LNIND 1975 SC 224] [LNIND 1975 SC 224], M
Naina Mohammed v KA Natarajan [1976] 1 SCR 102 [LNIND 1975 SC 224] [LNIND 1975 SC 224] [LNIND 1975 SC 224];
Rukmanand Bairoliya v State of Bihar AIR 1971 SC 746, Rukmanand Bairoliya v State of Bihar (1971) 3 SCC 167, Rukmanand
Bairoliya v State of Bihar (1971) UJ 143; Gunwant Kaur v Municipal Committee, Bhatinda AIR 1970 SC 802, Gunwant Kaur v
Municipal Committee, Bhatinda (1970) All LJ 78, Gunwant Kaur v Municipal Committee, Bhatinda (1970) BLJR 252; Parry & Co
Ltd v PC Pal, Judge of the Second Industrial Tribunal, Calcutta AIR 1970 SC 1334 [LNIND 1968 SC 358] [LNIND 1968 SC 358]
[LNIND 1968 SC 358], Parry & Co Ltd v PC Pal, Judge of the Second Industrial Tribunal, Calcutta (1970) 2 SCJ 433 [LNIND
1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v PC Pal, Judge of the Second Industrial Tribunal,
Calcutta [1969] 2 SCR 976 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]; Dabur v Workmen AIR 1968
SC 17 [LNIND 1967 SC 213] [LNIND 1967 SC 213] [LNIND 1967 SC 213]; Comr of Income Tax v Walchand and Co Pvt Ltd
AIR 1967 SC 1435 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80], Comr of Income Tax v Walchand and Co
Pvt Ltd [1967] 3 SCR 214 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80], Comr of Income Tax v Walchand
and Co Pvt Ltd (1967) 65 ITR 381 [LNIND 1967 SC 80] [LNIND 1967 SC 80] [LNIND 1967 SC 80]; Andhra Scientific Co Ltd v A
Sheshagiri Rao AIR 1967 SC 408 [LNIND 1960 SC 340] [LNIND 1960 SC 340] [LNIND 1960 SC 340], Andhra Scientific Co Ltd
v A Sheshagiri Rao (1961) 2 LLJ 117 [LNIND 1960 SC 340] [LNIND 1960 SC 340] [LNIND 1960 SC 340], Andhra Scientific Co
Ltd v A Sheshagiri Rao (1961-62) 21 FJR 253; Sale Tax Officer, Jodhpur v Shiv Ratan G Mohatta AIR 1966 SC 142 [LNIND
1965 SC 38] [LNIND 1965 SC 38] [LNIND 1965 SC 38], Sale Tax Officer, Jodhpur v Shiv Ratan G Mohatta [1965] 3 SCR 71
[LNIND 1965 SC 38] [LNIND 1965 SC 38] [LNIND 1965 SC 38], Sale Tax Officer, Jodhpur v Shiv Ratan G Mohatta (1965) 16
STC 599 [LNIND 1965 SC 38] [LNIND 1965 SC 38] [LNIND 1965 SC 38]; Pioneer Traders v Chif Controller of Imports &
Exports AIR 1963 SC 734 [LNIND 1962 SC 319] [LNIND 1962 SC 319] [LNIND 1962 SC 319], Pioneer Traders v Chif Controller
of Imports & Exports [1963] Supp 1 SCR 349, Pioneer Traders v Chif Controller of Imports & Exports (1964) 1 SCJ 595 [LNIND
1962 SC 319] [LNIND 1962 SC 319] [LNIND 1962 SC 319]; Custodian of Evacuee Property, Bangalore v Khan Saheb Abdul
Shukoor AIR 1961 SC 1087 [LNIND 1961 SC 67] [LNIND 1961 SC 67] [LNIND 1961 SC 67], Custodian of Evacuee Property,
Bangalore v Khan Saheb Abdul Shukoor [1961] 3 SCR 855 [LNIND 1961 SC 67] [LNIND 1961 SC 67] [LNIND 1961 SC 67]. As
to the meaning of review see CIVIL PROCEDURE[65.773].
3 'Report of the US Attorney General's Committee' (1941)p 91; Schwartz, 'Administrative Law' (1976)p 579.
4 High Court of Judicature at Bombay v Sashikant S Patil AIR 2000 SC 22 [LNIND 1999 SC 1446] [LNIND 1999 SC 1446]
[LNIND 1999 SC 1446], High Court of Judicature at Bombay v Sashikant S Patil (2000) 1 SCC 416 [LNIND 1999 SC 1446]
[LNIND 1999 SC 1446] [LNIND 1999 SC 1446], High Court of Judicature at Bombay v Sashikant S Patil (2000) 1 SCJ 10;
Apparel Export Promotion Council v A K Chopra AIR 1999 SC 625 [LNIND 1999 SC 33] [LNIND 1999 SC 33] [LNIND 1999 SC
33], Apparel Export Promotion Council v A K Chopra (1999) 1 SCC 759 [LNIND 1999 SC 33] [LNIND 1999 SC 33] [LNIND 1999
SC 33], Apparel Export Promotion Council v A K Chopra (1999) 1 SCJ 265; Kuldeep Singh v Commissioner of Police AIR 1999
SC 677 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109], Kuldeep Singh v Commissioner of Police
(1999) 2 SCC 10 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109], Kuldeep Singh v Commissioner of
Police (1998) 6 Scale 588 [LNIND 1998 SC 1109] [LNIND 1998 SC 1109] [LNIND 1998 SC 1109]; Yoginath D Bagle v State of
Maharashtra AIR 1999 SC 3734 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], Yoginath D Bagle v State
of Maharashtra (1999) 7 SCC 739 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827], Yoginath D Bagle v
State of Maharashtra (1999) 7 JT 62 [LNIND 1999 SC 827] [LNIND 1999 SC 827] [LNIND 1999 SC 827]; Kumaon Mandal
Vikas Nigam Ltd v Girja Shankar Pant AIR 2001 SC 24 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362] [LNIND 2000 SC 1362],
Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant (2001) 1 SCC 182 [LNIND 2000 SC 1362] [LNIND 2000 SC 1362]
[LNIND 2000 SC 1362], Kumaon Mandal Vikas Nigam Ltd v Girja Shankar Pant (2000) 4 SCJ 529.
5 Union of India v Mustafa & Najibhai Trading Co AIR 1998 SC 2526 [LNIND 1998 SC 611] [LNIND 1998 SC 611] [LNIND 1998
SC 611], Union of India v Mustafa & Najibhai Trading Co (1998) 6 SCC 79 [LNIND 1998 SC 611] [LNIND 1998 SC 611] [LNIND
1998 SC 611], Union of India v Mustafa & Najibhai Trading Co (1998) 4 Scale 141 [LNIND 1998 SC 611] [LNIND 1998 SC 611]
[LNIND 1998 SC 611]; Ahmedabad Municipal Corpn v Virendra Kumar Jayantibhai Patel AIR 1997 SC 3002 [LNIND 1997 SC
436
Page 33
973] [LNIND 1997 SC 973] [LNIND 1997 SC 973], Ahmedabad Municipal Corpn v Virendra Kumar Jayantibhai Patel (1997) 6
SCC 650 [LNIND 1997 SC 973] [LNIND 1997 SC 973] [LNIND 1997 SC 973], Ahmedabad Municipal Corpn v Virendra Kumar
Jayantibhai Patel (1997) 7 JT 14; State of West Bengal v Atul Krishna Shaw AIR 1990 SC 2205 [LNIND 1990 SC 466] [LNIND
1990 SC 466] [LNIND 1990 SC 466], State of West Bengal v Atul Krishna Shaw (1991) Supp 1 SCC 414, State of West Bengal
v Atul Krishna Shaw [1990] Supp SCR 91; Bhagat Ram v State of Himachal Pradesh AIR 1983 SC 454 [LNIND 1983 SC 35]
[LNIND 1983 SC 35] [LNIND 1983 SC 35], Bhagat Ram v State of Himachal Pradesh (1983) 2 SCC 442 [LNIND 1983 SC 35]
[LNIND 1983 SC 35] [LNIND 1983 SC 35]; Mukunda Bore v Bangsidhar Buragohain AIR 1980 SC 1524, Mukunda Bore v
Bangsidhar Buragohain (1980) UJ 526, Mukunda Bore v Bangsidhar Buragohain (1980) Tax LR 2347; Gujarat Steel Tubes Ltd
v Gujarat Steel Tubes, Mazdoor Sabha AIR 1980 SC 1896 [LNIND 1979 SC 464] [LNIND 1979 SC 464] [LNIND 1979 SC 464],
Gujarat Steel Tubes Ltd v Gujarat Steel Tubes, Mazdoor Sabha (1980) 2 SCC 593 [LNIND 1979 SC 464] [LNIND 1979 SC 464]
[LNIND 1979 SC 464], Gujarat Steel Tubes Ltd v Gujarat Steel Tubes, Mazdoor Sabha [1980] 2 SCR 146 [LNIND 1979 SC 464]
[LNIND 1979 SC 464] [LNIND 1979 SC 464]; Union of India v HC Goel AIR 1964 SC 365, Union of India v HC Goel [1964] 4
SCR 718 [LNIND 1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208], Union of India v HC Goel (1964) 1 LLJ 38 [LNIND
1963 SC 208] [LNIND 1963 SC 208] [LNIND 1963 SC 208] (such a finding suffered from such an obvious and patent error on
the face of the record that the high court would be justified in quashing it); Swaran Singh v State of Punjab AIR 1976 SC 232,
Swaran Singh v State of Punjab (1976) 2 SCC 868, Swaran Singh v State of Punjab (1976) UJ 33, Swaran Singh v State of
Punjab (1976) 2 SCJ 303; Sub-Divisional Officer and Collector, Shivasagar v Gopal Chandra Khound AIR 1971 SC 1190,
Sub-Divisional Officer and Collector, Shivasagar v Gopal Chandra Khound (1972) 4 SCC 263, Sub-Divisional Officer and
Collector, Shivasagar v Gopal Chandra Khound (1971) SC UJ 550; Parry & Co Ltd v P C Pal, Judge of the Second Industrial
Tribunal, Calcutta AIR 1970 SC 1334 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND 1968 SC 358], Parry & Co Ltd v P C
Pal, Judge of the Second Industrial Tribunal, Calcutta (1970) 2 SCJ 433 [LNIND 1968 SC 358] [LNIND 1968 SC 358] [LNIND
1968 SC 358], Parry & Co Ltd v P C Pal, Judge of the Second Industrial Tribunal, Calcutta [1969] 2 SCR 976 [LNIND 1968 SC
358] [LNIND 1968 SC 358] [LNIND 1968 SC 358]; Syed Yakoob v K S Rahdakrishnan AIR 1964 SC 477, Syed Yakoob v K S
Rahdakrishnan [1964] 5 SCR 64 [LNIND 1963 SC 228] [LNIND 1963 SC 228] [LNIND 1963 SC 228]; Shauquin Singh v Desa
Singh AIR 1970 SC 672; Kaushalya Devi v Bachittar Singh AIR 1960 SC 1168; Sree Meenakshi Mills Ltd, Madurai v Comr of
Income Tax, Madras AIR 1957 SC 49 [LNIND 1956 SC 70] [LNIND 1956 SC 70] [LNIND 1956 SC 70], Sree Meenakshi Mills
Ltd, Madurai v Comr of Income Tax, Madras [1957] SCR 691, Sree Meenakshi Mills Ltd, Madurai v Comr of Income Tax,
Madras (1957) SCJ 1 [LNIND 1956 SC 70] [LNIND 1956 SC 70] [LNIND 1956 SC 70]; Dharangadhra Chemical Works Ltd v
State of Saurashtra AIR 1957 SC 264 [LNIND 1956 SC 99] [LNIND 1956 SC 99] [LNIND 1956 SC 99], Dharangadhra Chemical
Works Ltd v State of Saurashtra (1957) SCJ 208, Dharangadhra Chemical Works Ltd v State of Saurashtra [1957] SCR 152
[LNIND 1956 SC 99] [LNIND 1956 SC 99] [LNIND 1956 SC 99]; Aziz Wani v Director, Consolidation, Srinagar AIR 1971 J & K
67; Amulya Chandra Paul v Collector of Central Excise and Land Customs for Assam, Manipur and Tripura AIR 1971 Tri 3 (the
collector of central excise confiscated some foreign and local coins and imposed a fine on the petitioner without there being any
evidence to establish that the said coins were imported by the accused; the high court quashed the order on the ground of no
evidence); Teja Singh v Union of India AIR 1971 P & H 96, (1970) Rev LR 292, (1970) Pun LJ 460.
6 Union of India v R AIR 1997 SC 2069 [LNIND 1997 SC 569] [LNIND 1997 SC 569] [LNIND 1997 SC 569], Union of India v R
(1997) 9 SCC 446 [LNIND 1997 SC 569] [LNIND 1997 SC 569] [LNIND 1997 SC 569], Union of India v R (1997) 2 SCJ 140;
Union of India v Mohan Singh, (1996) 10 SCC 351 [LNIND 1996 SC 1411] [LNIND 1996 SC 1411] [LNIND 1996 SC 1411];
Mukund Lal Bhandari v Union of India, 1993 AIR SCW 2508; Maharashtra State Board of Secondary and Higher Secondary
Education v K S Gandhi (1991) 2 SCC 716 [LNIND 1991 SC 712] [LNIND 1991 SC 712] [LNIND 1991 SC 712]; Nand Kishore
Prasad v State of Bihar AIR 1978 SC 1277 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore
Prasad v State of Bihar (1978) 3 SCC 366 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand Kishore
Prasad v State of Bihar [1978] 3 SCR 708 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135] (the Supreme
Court emphasised that the disciplinary tribunal must arrive at its conclusion on the basis of some evidentiary material which,
with some degree of definiteness, points to the guilt of the delinquent in respect of the charge against him; suspicion must not
be allowed to take the place of proof even in domestic enquiries); State of Andhra Pradesh v C Chitra Venkata Rao AIR 1975
SC 2151 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975 SC 309], State of Andhra Pradesh v C Chitra Venkata Rao
(1975) 2 SCC 557 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND 1975 SC 309], State of Andhra Pradesh v C Chitra
Venkata Rao (1975) SCC (Lab) 349(the state dismissed the respondent from service after an inquiry by a tribunal; the high
court set aside the dismissal on a writ petition under the Constitution of India art 226; the matter then came in appeal before the
Supreme Court which stated that the high court was not correct in holding that the inquiry before the tribunal as it was similar to
a prosecution in a criminal court; a tribunal's findings are not to be declared invalid because the tribunal does not apply the rule
that the charge against the concerned officer must be proved beyond a reasonable doubt; if there is some evidence to
reasonably support the conclusion of the tribunal that the delinquent officer is guilty of the charge, it is not the function of the
court to review the evidence and to arrive at its own independent findings; the tribunal is the sole judge of the facts so long as
there is some legal evidence to support the findings and the adequacy or reliability of that evidence is not a matter which can be
permitted to be canvassed before the high court, in a writ proceeding); Joao Andrade e Souza v Kashinath S Vediekdir AIR
1971 Goa 2.
7 See the Constitution of India arts 32 and 226 (see generally[80]CONSTITUTIONAL LAW).
8 Indian Overseas Bank v IOB Staff Canteen Workers' Union AIR 2000 SC 1508 [LNIND 2000 SC 646] [LNIND 2000 SC 646]
[LNIND 2000 SC 646], Indian Overseas Bank v IOB Staff Canteen Workers' Union (2000) 4 SCC 245 [LNIND 2000 SC 646]
[LNIND 2000 SC 646] [LNIND 2000 SC 646], Indian Overseas Bank v IOB Staff Canteen Workers' Union (2000) Lab IC 1495
(the findings of fact recorded by a fact finding authority duly constituted for the purpose and which ordinarily must be considered
to have become final, cannot be disturbed for the mere reason of having been based on materials or evidence not sufficient or
credible in the opinion of the writ court to warrant those findings at any rate, as long as they are based upon some material
which are relevant for the purpose or even on the ground that there is yet another view which can be reasonably and possibly
under taken); Syed Yakoob v K S Rahdakrishnan AIR 1964 SC 477, Syed Yakoob v K S Rahdakrishnan [1964] 5 SCR 64
437
Page 34
[LNIND 1963 SC 228] [LNIND 1963 SC 228] [LNIND 1963 SC 228]; Kaushalya Devi v Bachittar Singh AIR 1960 SC 1168;
Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam AIR 1958 SC 398 [LNIND 1958 SC 6] [LNIND 1958
SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam (1958) SCJ 798 [LNIND
1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6], Nagendra Nath Bora v Commissioner of Hills Division and Appeals, Assam
[1958] SCR 1240 [LNIND 1958 SC 6] [LNIND 1958 SC 6] [LNIND 1958 SC 6]; Hari Vishnu Kamath v Ahmad Ishaque AIR 1955
SC 233 [LNIND 1954 SC 174] [LNIND 1954 SC 174] [LNIND 1954 SC 174].
10 Shew Bhagwan Goanka v Collector of Customs AIR 1971 Cal 112 [LNIND 1969 CAL 174] [LNIND 1969 CAL 174] [LNIND
1969 CAL 174], Shew Bhagwan Goanka v Collector of Customs 74 Cal WN 907.
11 Dulal Chandra Hazarika v Assam Board of Revenue, Guahati AIR 1971 Assam 123, Dulal Chandra Hazarika v Assam
Board of Revenue, Guahati (1971) Assam LR 156 (the high court quashed the finding by the revenue board on the ground that
it was not based on evidence, was even contrary to the evidence on record and was vitiated by non consideration of relevant
materials on record).
12 State of Andhra Pradesh v Chitra Venkata Rao AIR 1975 SC 2151 [LNIND 1975 SC 309] [LNIND 1975 SC 309] [LNIND
1975 SC 309], State of Andhra Pradesh v Chitra Venkata Rao (1975) 2 SCC 557 [LNIND 1975 SC 309] [LNIND 1975 SC 309]
[LNIND 1975 SC 309], State of Andhra Pradesh v Chitra Venkata Rao (1975) Lab IC 1585 [LNIND 1975 SC 309] [LNIND 1975
SC 309] [LNIND 1975 SC 309]; Shew Bhagwan Goanka v Collector of Customs AIR 1971 Cal 112 [LNIND 1969 CAL 174]
[LNIND 1969 CAL 174] [LNIND 1969 CAL 174], Shew Bhagwan Goanka v Collector of Customs 74 Cal WN 907; Nand
Kishore Prasad v State of Bihar AIR 1978 SC 1277 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand
Kishore Prasad v State of Bihar (1978) 3 SCC 366 [LNIND 1978 SC 135] [LNIND 1978 SC 135] [LNIND 1978 SC 135], Nand
Kishore Prasad v State of Bihar (1978) 2 BLJR 280.
13 Rupa Ashok Hirra v Ashok Hurra (2002) 4 SCC 388 [LNIND 2002 SC 273] [LNIND 2002 SC 273] [LNIND 2002 SC 273] (the
technicalities associated with the prerogative writs in English law have no role to play under our constitutional scheme).

ADMINISTRATIVE LAW/21. SPECIFIC WRITS/(4) CERTIORARI AND PROHIBITION/D. ISSUANCE IN
CASE OF ERRORS OF FACT/[005.296] Jurisdictional facts
[005.296] Jurisdictional facts There are two types of facts:
(1) facts which an authority has to determine to dispose of a dispute before it; and
(2) facts that must exist before an authority could exercise jurisdiction in a matter.
The latter are known as jurisdictional or collateral facts. A statute may authorise a body to decide the
jurisdictional fact for itself1. In such a case, the scope of judicial review becomes restricted only to the extent
to which it can review an ordinary fact2. When no such power is conferred, judicial review extends to
consideration of the evidence by the court upon its own independent judgement and to decide the existence
of jurisdictional facts. This is because jurisdiction of the body depends on a correct decision as to
jurisdictional facts and by wrongly deciding a jurisdictional fact, a body cannot give jurisdiction to itself that it
does not posses under the law3. Thus, by and large the judicial policy is to leave the decision of the
jurisdictional fact, in the first instance, to the decision making body itself4.
In most of the cases, it is difficult for the court to devise an exhaustive rule to determine whether there exists
a lack of power or whether power has been erroneously exercised5.
1 Lila Vati Bai v State of Bombay AIR 1957 SC 521 [LNIND 1957 SC 25] [LNIND 1957 SC 25] [LNIND 1957 SC 25], Lila Vati
Bai v State of Bombay [1957] SCR 721 [LNIND 1957 SC 25] [LNIND 1957 SC 25] [LNIND 1957 SC 25], Lila Vati Bai v State of
Bombay (1957) SCJ 557.
2 State of Maharashtra v Babulal Kriparam Takkamore AIR 1967 SC 1353 [LNIND 1967 SC 32] [LNIND 1967 SC 32] [LNIND
1967 SC 32], State of Maharashtra v Babulal Kriparam Takkamore [1967] 2 SCR 583 [LNIND 1967 SC 32] [LNIND 1967 SC 32]
[LNIND 1967 SC 32]. As to the meaning of review see CIVIL PROCEDURE[65.773].
3 State of Gujarat v Jamnadas G Pabri AIR 1974 SC 2233 [LNIND 1974 SC 292] [LNIND 1974 SC 292] [LNIND 1974 SC 292],
438
Page 35
State of Gujarat v Jamnadas G Pabri (1975) 1 SCC 138 [LNIND 1974 SC 292] [LNIND 1974 SC 292] [LNIND 1974 SC 292],
State of Gujarat v Jamnadas G Pabri [1975] 2 SCR 330 [LNIND 1974 SC 292] [LNIND 1974 SC 292] [LNIND 1974 SC 292];
Raza Textiles Ltd, Rampur v Income Tax Officer, Rampur AIR 1973 SC 1362 (an authority cannot confer jurisdiction on itself by
deciding a jurisdictional fact wrongly; that the question whether the jurisdictional fact has been rightly decided or not is a
question that is open for examination by the high court in an application for writ of certiorari); Shauqin Singh v Desa Singh AIR
1970 SC 672, Shauqin Singh v Desa Singh (1970) 3 SCC 881, Shauqin Singh v Desa Singh (1970) UJ 281(the Chief
Settlement Commissioner had power under the law in question to cancel an allotment of land if he was satisfied that the order
of allotment of land had been obtained by fraud, false representation or concealment of any material fact; the Supreme Court
held that the jurisdiction of the commissioner arose only if he was satisfied that an allotment was obtained by means of fraud,
false representation or concealment of material facts; that this satisfaction of the commissioner was a jurisdictional fact on the
existence of which alone his power could be exercised; the high court could, therefore, in a writ petition, consider whether there
was due satisfaction by the Chief Settlement Commissioner on materials placed before him and that the order was not made
arbitrarily, capriciously or perversely); Munni Devi v Gokal Chand (1969) 2 SCC 879 [LNIND 1969 SC 331] [LNIND 1969 SC
331] [LNIND 1969 SC 331] (the Uttar Pradesh (Temporary Control of Rent and Eviction) Act 1947 gives power to the district
magistrate to allot a vacant shop; the Act provides that no order made by the district magistrate will be called in question in any
court; that whether a shop is vacant or not is a jurisdictional fact which could not be decided finally by the district magistrate
himself and by reaching an erroneous decision on this point, he could not clothe himself with a jurisdiction which he did not
possess; the order as to vacancy could thus be challenged); State of Madhya Pradesh v Sardar DK Jadav AIR 1968 SC 1186
[LNIND 1968 SC 15] [LNIND 1968 SC 15] [LNIND 1968 SC 15], State of Madhya Pradesh v Sardar DK Jadav [1968] 2 SCR
823 [LNIND 1968 SC 15] [LNIND 1968 SC 15] [LNIND 1968 SC 15], State of Madhya Pradesh v Sardar DK Jadav (1968) 2 SCJ
863 [LNIND 1968 SC 15] [LNIND 1968 SC 15] [LNIND 1968 SC 15] (the MB Abolition of Jagirs Act 1951 abolished all jagirs and
vested all jagir property including jagir lands, forests, trees, fisheries, wells, tanks and the like in the State; however, all tanks,
trees, private wells and buildings on occupied land were excluded from the scope of the provision; if the wells and tanks were
on unoccupied land, only then they stood vested in the State and compensation could be claimed for them under a different
enactment; the Supreme Court held that it was a jurisdictional fact whether the tanks and wells were on occupied land and the
high court could determine this jurisdictional question upon its independent judgment); Naresh Shridhar Mirajkar v State of
Maharashtra AIR 1967 SC 1 [LNIND 1966 SC 74] [LNIND 1966 SC 74] [LNIND 1966 SC 74], Naresh Shridhar Mirajkar v State
of Maharashtra [1966] 3 SCR 744 [LNIND 1966 SC 74] [LNIND 1966 SC 74] [LNIND 1966 SC 74], Naresh Shridhar Mirajkar v
State of Maharashtra (1966) 2 SCA 363; Raja Anand Brahma Shah v State of Uttar Pradesh AIR 1967 SC 1081 [LNIND 1966
SC 190] [LNIND 1966 SC 190] [LNIND 1966 SC 190], Raja Anand Brahma Shah v State of Uttar Pradesh [1967] 1 SCR 373
[LNIND 1966 SC 190] [LNIND 1966 SC 190] [LNIND 1966 SC 190], Raja Anand Brahma Shah v State of Uttar Pradesh (1967)
2 SCJ 830 [LNIND 1966 SC 190] [LNIND 1966 SC 190] [LNIND 1966 SC 190](under Land Acquisition Act 1894 s 17, in case of
urgency, the government can take possession of any waste or arable land without hearing objections as provided in the Act; it
has been held that the character of the land was a condition upon which the jurisdiction of the government depended under s
17; where the jurisdiction of an administrative authority depends upon a preliminary finding of fact, the high court is entitled, in a
proceeding of writ of certiorari to determine, upon its independent judgment, whether or not that finding of fact is correct);
Phongseh Misao v Collector of Land Acquisition AIR 1977 Gau 47, Phongseh Misao v Collector of Land Acquisition (1977)
Assam LR 333; Sumanlal Parekh v Collector of Central Excise and Customs, West Bengal AIR 1974 Cal 158 [LNIND 1973
CAL 22] [LNIND 1973 CAL 22] [LNIND 1973 CAL 22](the Gold (Control) Act 1968 s 8(1) contains a prohibition against any
person owning or having the possession, custody, control of or otherwise acquiring, primary gold; the question was whether the
petitioner was in possession of primary gold in contravention of this provision; the High Court of Calcutta held that whether a
particular article was primary gold or not was a jurisdictional fact and the authorities could assume jurisdiction only on a correct
finding of that fact); Natwarlal Jerambhai Patel v State of Gujarat AIR 1971 Guj 264 [LNIND 1970 GUJ 131] [LNIND 1970 GUJ
131] [LNIND 1970 GUJ 131], Natwarlal Jerambhai Patel v State of Gujarat (1971) 12 Guj LRT 148(the question of urgency is a
jurisdictional fact and could be decided by the court in its independent judgment).
4 Management of Express Necospapers Pvt Ltd, Madras v Workmen AIR 1963 SC 569 [LNIND 1962 SC 253] [LNIND 1962 SC
253] [LNIND 1962 SC 253], Management of Express Necospapers Pvt Ltd, Madras v Workmen [1963] 3 SCR 540 [LNIND 1962
SC 253] [LNIND 1962 SC 253] [LNIND 1962 SC 253]; Modern Match Industries, Gudiatam v Labour Appellate Tribunal of
India, Madras AIR 1957 Mad 688 [LNIND 1956 MAD 174] [LNIND 1956 MAD 174] [LNIND 1956 MAD 174], Modern Match
Industries, Gudiatam v Labour Appellate Tribunal of India, Madras (1957) 2 Mad LJ 135, Modern Match Industries, Gudiatam v
Labour Appellate Tribunal of India, Madras (1958) 1 LLJ 69; Sewji Kutchi v Bajrang Agarwala AIR 1955 Pat 516.
5 Hari Prasad Mulshankar Trivedi v VB Raju AIR 1973 SC 2602 [LNIND 1973 SC 252] [LNIND 1973 SC 252] [LNIND 1973 SC
252], Hari Prasad Mulshankar Trivedi v VB Raju (1974) 3 SCC 415 [LNIND 1973 SC 252] [LNIND 1973 SC 252] [LNIND 1973
SC 252], Hari Prasad Mulshankar Trivedi v VB Raju [1974] 1 SCR 548 [LNIND 1973 SC 252] [LNIND 1973 SC 252] [LNIND
1973 SC 252] (a wrong decision on a question of ordinary residence for the purpose of entering a person's name in the
electoral roll must not be treated as a jurisdictional error; that the statute in question had entrusted the exclusive power to
decide the matter finally to an authority other than a court or a tribunal trying an election petition).

ADMINISTRATIVE LAW/22. PROMISSORY ESTOPPEL/[005.297] Generally
[005.297] Generally The object of the doctrine of promissory estoppel is to ensure that the government
439
Page 36
abides by its promises and representations1. The principle underlying the doctrine of promissory estoppel,
without naming the doctrine as such, was first applied by the Supreme Court against the Central
Government2. However, the doctrine gained recognition with the Supreme Court formally acknowledging the
transition from non-application3 of the doctrine to acceptance4. When the state government takes over a
private company, it is required that the government must honour the assurances provided5. Similarly, the
principle of promissory estoppel would certainly estop a corporation from backing out of its obligation arising
from a solemn promise made by it6. The doctrine is placed on the basis of equity in order to protect innocent
and unsuspecting people from being injured by acting on the promises and representations made by the
government or its officials. The equity in favour of the individual arises by his changing his position on
government representation and not because of any detainment suffered by him7. When the promisee, in fact,
acts in reliance upon the promise, and alters his position, the promise would be enforceable against the
government, at the instance of the promisee, not-withstanding the fact that there is no consideration for the
promise and that it is not recorded in the form of a formal contract as required by the Constitution8. If the
government makes a promise and the promisee acts in reliance upon it and alters his position, there is no
reason why the government must not be compelled to make good such promise like any other private party9.
The doctrine of estoppel can be used both as an offensive and a defensive tool, unlike in Britain, where the
principle of equitable estoppel is used by and large only as a defensive or passive tool and not for offence10.
1 As to doctrine of promissory estoppel see [80]CONSTITUTIONAL LAW.
2 Union of India v Anglo-Afghan Agencies AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC
334], Union of India v Anglo-Afghan Agencies [1968] 2 SCR 366 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC
334], Union of India v Anglo-Afghan Agencies (1968) 2 SCA 31 (the Central Government announced, through an administrative
order, a scheme to promote exports; if a person exported woollen goods, he would be entitled to import raw materials of equal
value. An aggrieved exporter contested this decision and the government countered that the scheme was not binding on it as it
was merely of an administrative nature; the Supreme Court ruled that the scheme was binding on the government and the
exporter was entitled to get the benefit promised by it. Even though the scheme had no statutory force and was merely
administrative in nature and character, the government could not ignore the promise made by it at its mere whim. The claim of
the exporter was founded upon 'the equity which arises' in his favour as a result of the representation made on behalf of the
Union of India in the scheme and the exporter's action in acting upon that representation under the belief that the government
would carry out the representation made by it).
3 State of Kerala v Gwalior Rayon Silk Manufacturing (Weaving) Co Ltd AIR 1973 SC 2734 [LNIND 1973 SC 276] [LNIND 1973
SC 276] [LNIND 1973 SC 276], State of Kerala v Gwalior Rayon Silk Manufacturing (Weaving) Co Ltd (1973) 2 SCC 713
[LNIND 1973 SC 276] [LNIND 1973 SC 276] [LNIND 1973 SC 276], State of Kerala v Gwalior Rayon Silk Manufacturing
(Weaving) Co Ltd [1974] 1 SCR 671 [LNIND 1973 SC 276] [LNIND 1973 SC 276] [LNIND 1973 SC 276]; Assistant Custodian,
Evacuee Property v Brij Kishore Agarwala AIR 1974 SC 2325 [LNIND 1974 SC 305] [LNIND 1974 SC 305] [LNIND 1974 SC
305], Assistant Custodian, Evacuee Property v Brij Kishore Agarwala (1975) 1 SCC 21 [LNIND 1974 SC 305] [LNIND 1974 SC
305] [LNIND 1974 SC 305], Assistant Custodian, Evacuee Property v Brij Kishore Agarwala [1975] 2 SCR 359 [LNIND 1974 SC
305] [LNIND 1974 SC 305] [LNIND 1974 SC 305]; N Ramanatha Pillai v State of Kerala AIR 1973 SC 2641 [LNIND 1973 SC
250] [LNIND 1973 SC 250] [LNIND 1973 SC 250], N Ramanatha Pillai v State of Kerala (1973) 2 SCC 650 [LNIND 1973 SC
250] [LNIND 1973 SC 250] [LNIND 1973 SC 250], N Ramanatha Pillai v State of Kerala [1974] 1 SCR 515 [LNIND 1973 SC
250] [LNIND 1973 SC 250] [LNIND 1973 SC 250] (as a general rule the doctrine of estoppel will not be applied against the state
in its governmental, public or sovereign capacity; an exception arises where its necessary to prevent fraud or manifest
injustice); Excise Comr, Uttar Pradesh, Allahabad v Ram Kumar AIR 1976 SC 2237 [LNIND 1976 SC 211] [LNIND 1976 SC
211] [LNIND 1976 SC 211], Excise Comr, Uttar Pradesh, Allahabad v Ram Kumar (1976) 4 SCC 723 [LNIND 1976 SC 51]
[LNIND 1976 SC 51] [LNIND 1976 SC 51], Excise Comr, Uttar Pradesh, Allahabad v Ram Kumar [1976] 3 SCR 387 [LNIND
1976 SC 51] [LNIND 1976 SC 51] [LNIND 1976 SC 51] (there can be no question of estoppel against the government in the
exercise of its legislative, sovereign or executive powers); Bihar Eastern Gangetic Fishermen Co-operative Society Ltd v Sipahi
Singh AIR 1977 SC 2149 [LNIND 1977 SC 261] [LNIND 1977 SC 261] [LNIND 1977 SC 261], Bihar Eastern Gangetic
Fishermen Co-operative Society Ltd v Sipahi Singh (1977) 4 SCC 145 [LNIND 1977 SC 261] [LNIND 1977 SC 261] [LNIND
1977 SC 261], Bihar Eastern Gangetic Fishermen Co-operative Society Ltd v Sipahi Singh [1978] 1 SCR 375 [LNIND 1977 SC
261] [LNIND 1977 SC 261] [LNIND 1977 SC 261] (the Supreme Court reiterated the above statement).
4 Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh AIR 1979 SC 621 [LNIND 1978 SC 382] [LNIND 1978 SC 382]
[LNIND 1978 SC 382], Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh (1979) 2 SCC 409 [LNIND 1978 SC 382]
[LNIND 1978 SC 382] [LNIND 1978 SC 382], Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh [1979] 2 SCR 641
[LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382]; Century Spinning and Manufacturing Co Ltd v Ulhasnagar
Municipal Council AIR 1971 SC 1021 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND 1970 SC 629], Century Spinning and
Manufacturing Co Ltd v Ulhasnagar Municipal Council (1970) 1 SCC 582 [LNIND 1970 SC 629] [LNIND 1970 SC 629] [LNIND
1970 SC 629], Century Spinning and Manufacturing Co Ltd v Ulhasnagar Municipal Council [1970] 3 SCR 854 [LNIND 1970 SC
629] [LNIND 1970 SC 629] [LNIND 1970 SC 629] (applying the doctrine against a municipality, the Supreme Court observed
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that public bodies were as much bound as private individuals to carry out representations of facts and promises made by them,
relying on which other persons have altered their position to their prejudice. The government is not exempt from the equity
arising out of the acts done by citizens to their prejudice, relying upon the representations as to the future conduct made by the
government. Accordingly, a public authority is not exempt from liability to carry out its obligations arising out of representations
made by it relying upon which a citizen alters his position to his prejudice. The Court stressed that if democracy were to thrive in
India different standards of conduct for the people and the public bodies cannot ordinarily be permitted); Assistant Comr of
Commercial Taxes, Dharwar v Dharmendra Trading Co AIR 1988 SC 1247 [LNIND 1988 SC 288] [LNIND 1988 SC 288]
[LNIND 1988 SC 288], Assistant Comr of Commercial Taxes, Dharwar v Dharmendra Trading Co (1988) 3 SCC 570 [LNIND
1988 SC 288] [LNIND 1988 SC 288] [LNIND 1988 SC 288], Assistant Comr of Commercial Taxes, Dharwar v Dharmendra
Trading Co [1988] 3 SCR 946 [LNIND 1988 SC 288] [LNIND 1988 SC 288] [LNIND 1988 SC 288]; Express Newspapers Pvt
Ltd v Union of India AIR 1986 SC 872 [LNIND 1985 SC 321] [LNIND 1985 SC 321] [LNIND 1985 SC 321], Express Newspapers
Pvt Ltd v Union of India (1986) 1 SCC 133 [LNIND 1985 SC 321] [LNIND 1985 SC 321] [LNIND 1985 SC 321], Express
Newspapers Pvt Ltd v Union of India [1985] Supp 3 SCR 382; see Mangalore Chemicals and Fertilizers Ltd v Dy Comr of
Commercial Taxes AIR 1992 SC 152 [LNIND 1991 SC 340] [LNIND 1991 SC 340] [LNIND 1991 SC 340], Mangalore Chemicals
and Fertilizers Ltd v Dy Comr of Commercial Taxes (1992) Supp 1 SCC 21, Mangalore Chemicals and Fertilizers Ltd v Dy Comr
of Commercial Taxes [1991] 3 SCR 336 [LNIND 1991 SC 340] [LNIND 1991 SC 340] [LNIND 1991 SC 340].
5 S P Dubey v MPSRT Corpn AIR 1991 SC 276 [LNIND 1990 SC 611] [LNIND 1990 SC 611] [LNIND 1990 SC 611], S P
Dubey v MPSRT Corpn (1991) Supp 1 SCC 426, S P Dubey v MPSRT Corpn [1990] Supp 2 SCR 328.
6 Gujarat State Financial Corpn, Ahmedabad v Lotus Hotesls Pvt Ltd, Baroda AIR 1982 Guj 198 [LNIND 1982 GUJ 158]
[LNIND 1982 GUJ 158] [LNIND 1982 GUJ 158], Gujarat State Financial Corpn, Ahmedabad v Lotus Hotesls Pvt Ltd, Baroda
(1983) 2 Guj LR 49 (the principle of promissory estoppel would apply against the corporation in a situation where reliance on
the promise had altered the position of the Company).
[LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382] (the Government of Uttar Pradesh announced a scheme
through newspapers of exempting new industrial units from sales tax for three years and gave a categorical assurance
specifically to the petitioners to the effect that, if they set up a vanaspati factory in the State, its product would be exempt from
sales tax for three years. Subsequently, the government went back on its promise, and sought to withdraw the exemption from
sales tax before the stipulated period, which was challenged through a writ petition; the Supreme Court ruled that the
government was bound by its promise or assurance on the ground of equity. The government's argument that the appellants'
concern was quite profitable and hence no prejudice was caused to them by acting on the government's assurance and setting
up the factory was not held tenable; and that what was material in the situation was the alteration of the position of the
petitioners and not the prejudice caused to them. The court thus placed the doctrine on a more broad-based basis than the
detriment suffered by the promisee);
Pawan Alloys and Casting Pvt Ltd, Meerut v UP State Electricity Board AIR 1997 SC 3910, Pawan Alloys and Casting Pvt Ltd,
Meerut v UP State Electricity Board (1997) 7 JT 224, Pawan Alloys and Casting Pvt Ltd, Meerut v UP State Electricity Board
(1997) 5 Scale 342 (the State Electricity Board held out a promise to new industrialists seeking to establish industries in the
state that they would be given a rebate for three years on charges of electricity consumed by them; but withdrew the concession
before the lapse of three years. The Supreme Court ruled that the Board was bound by the principle of promissory estoppel as
the new industries were attracted to the state relying on the promise made by the Board and had altered their position and
spent large sums of money in establishing the infrastructure).
[LNIND 1978 SC 382]at 642, Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh (1979) 2 SCC 409 [LNIND 1978 SC
382] [LNIND 1978 SC 382] [LNIND 1978 SC 382], Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh [1979] 2 SCR
641 [LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382] (it is elementary that in a republic governed by the rule
of law, no one, howsoever high or low, is above the law. every one is subject to the law as fully and completely as any other and
the Government is no exception. It is indeed the pride of constitutional democracy and rule of law that the Government stands
on the same footing as a private individual insofar as the obligation of the law is concerned the former is equally bound as the
latter).
641 [LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382]; Union of India v Godfrey Philips India Ltd AIR 1986
SC 806 [LNIND 1985 SC 311] [LNIND 1985 SC 311] [LNIND 1985 SC 311], Union of India v Godfrey Philips India Ltd (1985) 4
SCC 369 [LNIND 1985 SC 311] [LNIND 1985 SC 311] [LNIND 1985 SC 311], Union of India v Godfrey Philips India Ltd [1985]
Supp 3 SCR 123.
10 Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh AIR 1979 SC 621 [LNIND 1978 SC 382] [LNIND 1978 SC
382] [LNIND 1978 SC 382]at 631, Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh (1979) 2 SCC 409 [LNIND
1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382], Motilal Padampat Sugar Mills Co Ltd v State of Uttar Pradesh
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ADMINISTRATIVE LAW/22. PROMISSORY ESTOPPEL/[005.298] Scope
[005.298] Scope Proof of reliance on the governmental representation is sufficient to be governed by the
doctrine of promissory estoppel1 and detriment due to the same need not be evidenced2.
Where several representations have been made by the government to a person and he has acted relying on
them, then he can claim the benefit of all the representations3. However, in instances of failure by the
government to fulfil the promises, the court may decide on the basis of equity whether in the specific fact
situation, the concerned party ought to be compensated or the government be held to its representation4.
Executive necessity is no defence for the government to retract from its promise or assurance5.
Since the doctrine of promissory estoppel becomes operative only when the concerned person changes his
position acting on a representation made by an administrative authority6, inference may be drawn that:
(1) the representation in question must be specific, clear and unambiguous7 and unequivocal and
not tentative or uncertain8;and
(2) the aggrieved party must have acted on the representation and not otherwise9.
A promissory estoppel cannot arise when there is no representation or conduct amounting to representation
on the part of the intended to induce the concerned party to change his position10. Furthermore,
representation need not be made to any particular individual person and representation of general
applicability is sufficient to induce a person to act upon it11.
When the terms and conditions were agreed as a result of negotiations between the parties, the very
foundation for promissory estoppel is absent12.
As a general rule, an act or representation made through innocent mistake is no ground for estoppel13.
However, if the mistake remains unrectified for long, equities may arise in favour of the concerned person
and the doctrine of promissory estoppel may be applicable against the Administration14.
1 As to development of the doctrine of promissory estoppel see [005.297].
2 Delhi Cloth and General Mills Ltd v Union of India AIR 1987 SC 2414 [LNIND 1987 SC 683] [LNIND 1987 SC 683] [LNIND
1987 SC 683], Delhi Cloth and General Mills Ltd v Union of India (1988) 1 SCC 86 [LNIND 1987 SC 683] [LNIND 1987 SC 683]
[LNIND 1987 SC 683], Delhi Cloth and General Mills Ltd v Union of India [1988] 1 SCR 383 [LNIND 1987 SC 683] [LNIND 1987
SC 683] [LNIND 1987 SC 683].
SC 683] [LNIND 1987 SC 683] (where a state government represents that if a new enterprise were established in the state, it
would supply electricity at a concessional rate and also grant exemption from payment of sales tax for a certain period, the
government is bound to honour the representations made by it and it would be immaterial whether each of these
representations was wholly or partly responsible for the concerned party to establish his enterprise. It is sufficient if the
concerned company was induced to act on those representations).
4 See State of Himachal Pradesh v Ganesh Wood Products AIR 1996 SC 149 [LNIND 1995 SC 897] [LNIND 1995 SC 897]
[LNIND 1995 SC 897]at 165, State of Himachal Pradesh v Ganesh Wood Products (1995) 6 SCC 363 [LNIND 1995 SC 897]
[LNIND 1995 SC 897] [LNIND 1995 SC 897], State of Himachal Pradesh v Ganesh Wood Products (1995) 6 JT 485 [LNIND
1995 SC 897] [LNIND 1995 SC 897] [LNIND 1995 SC 897] (it is not a hard and fast rule but an elastic one, the objective of
which is to do justice between the parties and to extend an equitable treatment to them; the State permitted several persons to
set up factories for the manufacture of Katha. The petitioner set up his factory but the government withdrew permission on the
ground of insufficiency of raw materials to produce Katha; in the specific fact situation, promissory estoppel applied against the
government, but being a forest based industry, and preservation of forests being a matter of national policy, the Supreme Court
was more inclined to award compensation to the petitioner instead of directing the Government to permit the factory to operate).
5 Aeronautics Employees Co-operative Housing Society Ltd v Government of Andhra Pradesh, Hyderabad AIR 1990 AP 331
[LNIND 1990 AP 8] [LNIND 1990 AP 8] [LNIND 1990 AP 8], Aeronautics Employees Co-operative Housing Society Ltd v
Government of Andhra Pradesh, Hyderabad (1990) 1 Andh WR 840 (the plea of 'executive necessity' cannot be invoked by the
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government to get out of its promise relying on which a person has altered his position).
6 Tapti Oil Industries v State of Maharashtra AIR 1984 Bom 161 [LNIND 1983 BOM 97] [LNIND 1983 BOM 97] [LNIND 1983
BOM 97], Tapti Oil Industries v State of Maharashtra (1984) 86 Bom LR 67 [LNIND 1983 BOM 97] [LNIND 1983 BOM 97]
[LNIND 1983 BOM 97], Tapti Oil Industries v State of Maharashtra (1984) Mah LJ 321 [LNIND 1983 BOM 97] [LNIND 1983
BOM 97] [LNIND 1983 BOM 97] (Promissory estoppel does not apply if the factual matrix is such that the plaintiff has not
changed his position basing himself on the representation made by the concerned authority and he did what he did
independently or irrespective of the government's representation); see S Ramabadran v State of Tamil Nadu AIR 1991 Mad
371 [LNIND 1990 MAD 371] [LNIND 1990 MAD 371] [LNIND 1990 MAD 371], S Ramabadran v State of Tamil Nadu (1991) Writ
LR 1 [LNIND 1990 MAD 371] [LNIND 1990 MAD 371] [LNIND 1990 MAD 371] (no case of promissory estoppel can be made if it
could not be established that the Government gave it any assurance and that it relied and acted upon it and changed its
position. The court emphasized that it was one thing for the company to make a request to the Government and the
Government acceding to that request but quite another thing to contend that the company acted upon government assurance
and changed its position. In the former case, the Government can withdraw the concession granted by it as and when it likes; in
the latter case, the doctrine of promissory estoppel would apply against the Government).
7 Ashok Kumar v Union Territory, Chandigarh AIR 1995 SC 461 at 464, Ashok Kumar v Union Territory, Chandigarh (1995) 1
SCC 631, Ashok Kumar v Union Territory, Chandigarh (1994) 7 JT 531 (non-renewal of a license, as a result of a new policy of
auctioning the sites, to run a telephone booth issued to the petitioner, a handicapped person, under the government policy to
issue such licenses to handicapped persons and riot victims was not governed by the doctrine of promissory estopped against
the government, as it had made no promise to renew the license after a year).
8 Comr of Income-Tax (Central), Calcutta v B N Bhattacharjee AIR 1979 SC 1725 [LNIND 1979 SC 274] [LNIND 1979 SC 274]
[LNIND 1979 SC 274], Comr of Income-Tax (Central), Calcutta v B N Bhattacharjee (1979) 4 SCC 121 [LNIND 1979 SC 274]
[LNIND 1979 SC 274] [LNIND 1979 SC 274], Comr of Income-Tax (Central), Calcutta v B N Bhattacharjee [1979] 2 SCR 1133;
Andhra Pradesh State Electricity Board v Sarada Ferro Alloys Ltd AIR 1993 SC 1521 [LNIND 1993 SC 166] [LNIND 1993 SC
166] [LNIND 1993 SC 166], Andhra Pradesh State Electricity Board v Sarada Ferro Alloys Ltd (1993) 2 SCC 425 [LNIND 1993
SC 166] [LNIND 1993 SC 166] [LNIND 1993 SC 166], Andhra Pradesh State Electricity Board v Sarada Ferro Alloys Ltd [1993]
2 SCR 114 [LNIND 1993 SC 166] [LNIND 1993 SC 166] [LNIND 1993 SC 166]; Uttar Pradesh State Road Transport Corpn v
Uttar pradesh Parivahan Nigam Shishukhs Berozgar Sangh AIR 1995 SC 1115 [LNIND 1995 SC 61] [LNIND 1995 SC 61]
[LNIND 1995 SC 61], Uttar Pradesh State Road Transport Corpn v Uttar pradesh Parivahan Nigam Shishukhs Berozgar Sangh
(1995) 2 SCC 1 [LNIND 1995 SC 61] [LNIND 1995 SC 61] [LNIND 1995 SC 61], Uttar Pradesh State Road Transport Corpn v
Uttar pradesh Parivahan Nigam Shishukhs Berozgar Sangh (1995) 2 JT 26.
9 DCM Ltd v Union of India (1996) 5 SCC 468 [LNIND 1996 SC 1244] [LNIND 1996 SC 1244] [LNIND 1996 SC 1244], DCM
Ltd v Union of India (1996) 7 JT 623, DCM Ltd v Union of India (1996) 5 Scale 826 (there were no facts to show that the
appellant company had altered its position on the basis of any representation or that it had in fact altered its position by acting
upon such representation, or that it had suffered some prejudice sufficient to constitute an estoppel; they were all owners of the
existing factories and no new factory was established on the basis of any representation. The whole case of promissory
estoppel, according to the Court, lacked the necessary factual foundation).
10 Union of India v R R Hingorani AIR 1987 SC 808 [LNIND 1987 SC 867] [LNIND 1987 SC 867] [LNIND 1987 SC 867], Union
of India v R R Hingorani (1987) 1 SCC 551 [LNIND 1987 SC 867] [LNIND 1987 SC 867] [LNIND 1987 SC 867], Union of India v
R R Hingorani [1987] 2 SCR 94 [LNIND 1987 SC 867] [LNIND 1987 SC 867] [LNIND 1987 SC 867] (before an estoppel can
arise there must be first a representation of an existing fact distinct from a mere promise made by one party to another;
secondly that the other party believing it must have been induced to act on the faith of it, thirdly he must have so acted to his
detriment. In the instant case there was no representation or conduct amounting to representation on the part of the
government to induce the allottee to believe that he was permitted to occupy the flat in question on payment of normal rent or
that he was induced to change his position on the faith of it).
11 Home Secretary, Union Territory of Chandigarh v Darshjit Singh Grewal (1993) 4 SCC 25, Home Secretary, Union Territory
of Chandigarh v Darshjit Singh Grewal (1993) 4 JT 387, Home Secretary, Union Territory of Chandigarh v Darshjit Singh
Grewal (1993) 3 Scale 218; Mahalaxmi Rice Mills v State of West Bengal AIR 1996 Cal 162 [LNIND 1995 CAL 280] [LNIND
1995 CAL 280] [LNIND 1995 CAL 280], Mahalaxmi Rice Mills v State of West Bengal (1996) AIHC 3401; Sree Rayalaseema
Alkalies and Allied Chemicals Ltd v Government of Andhra Pradesh AIR 1993 AP 278 [LNIND 1993 AP 102] [LNIND 1993 AP
102] [LNIND 1993 AP 102], Sree Rayalaseema Alkalies and Allied Chemicals Ltd v Government of Andhra Pradesh (1993) 1
APLJ 281 [LNIND 1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993 AP 102], Sree Rayalaseema Alkalies and Allied Chemicals
Ltd v Government of Andhra Pradesh (1993) 1 Andh LT 490 [LNIND 1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993 AP 102].
12 See Indian Aluminium Co Ltd v Karnataka Electricity Board AIR 1992 SC 2169 [LNIND 1992 SC 401] [LNIND 1992 SC 401]
[LNIND 1992 SC 401], Indian Aluminium Co Ltd v Karnataka Electricity Board (1992) 3 SCC 580 [LNIND 1992 SC 401] [LNIND
1992 SC 401] [LNIND 1992 SC 401], Indian Aluminium Co Ltd v Karnataka Electricity Board (1992) 3 JT 535 [LNIND 1992 SC
401] [LNIND 1992 SC 401] [LNIND 1992 SC 401] (such an agreement can be annulled by legislation).
13 Kedar Lal Verma v Secretary, Board of High School and Intermediate Education AIR 1980 All 32, Kedar Lal Verma v
Secretary, Board of High School and Intermediate Education (1979) All LJ 1324, Kedar Lal Verma v Secretary, Board of High
School and Intermediate Education (1980) 6 All LR 30; Prabhat Kishor Sahu v Sambalpur Univeristy AIR 1992 Ori 83 [LNIND
1991 ORI 65] [LNIND 1991 ORI 65] [LNIND 1991 ORI 65]; Reetanjali Pati v Board of Secondary Education, Orissa AIR 1990
Ori 90; Anant Kumar v The Vice-Chancellor, Magadh University, Bodh Gaya AIR 1990 Pat 205, Anant Kumar v The
Vice-Chancellor, Magadh University, Bodh Gaya (1990) BBCJ 424 (marks sheet issued to a candidate showed that he had got
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less than the pass marks in the examination, but was still declared passed due to a clerical mistake. The court ruled that the
Board was not estopped from declaring the candidate as having failed the examination because the doctrine of promissory
estoppel could not be applied to force the Board to do something against the statute).
14 Basanta Kumar Mohanty v Utkal University AIR 1990 Ori 10 [LNIND 1988 ORI 51] [LNIND 1988 ORI 51] [LNIND 1988 ORI
51]; Tripureshwar Mallik v Council of Higher Secondary Education AIR 1990 Ori 228 (the high court did not permit the
University to correct the marks sheet after five years; the court estopped the University from declaring him as having failed the
examination after such a long time); Ruchira Chauhan v Rohilkand University, Bareily AIR 1996 All 12 [LNIND 1995 SC 1173]
[LNIND 1995 SC 1173] [LNIND 1995 SC 1173], Ruchira Chauhan v Rohilkand University, Bareily (1996) All LJ 167; Reeta v
Berhampur University AIR 1993 Ori 27 [LNIND 1992 ORI 10] [LNIND 1992 ORI 10] [LNIND 1992 ORI 10], Reeta v Berhampur
University (1992) 74 Cut LT 603, Reeta v Berhampur University (1992) 2 Ori LR 341; Maxey Charan v Rohilkhand University,
Bareily AIR 1992 All 122 [LNIND 1991 ALL 434] [LNIND 1991 ALL 434] [LNIND 1991 ALL 434], Maxey Charan v Rohilkhand
University, Bareily (1991) 18 All LR 403; see also Sanatan Gauda v Berhampur University AIR 1990 SC 1075 [LNIND 1990 SC
199] [LNIND 1990 SC 199] [LNIND 1990 SC 199], Sanatan Gauda v Berhampur University (1990) 3 SCC 23 [LNIND 1990 SC
199] [LNIND 1990 SC 199] [LNIND 1990 SC 199], Sanatan Gauda v Berhampur University [1990] 2 SCR 273 [LNIND 1990 SC
199] [LNIND 1990 SC 199] [LNIND 1990 SC 199]; Ashok Chand Singhvi v University of Jodhpur AIR 1989 SC 823 [LNIND
1989 SC 36] [LNIND 1989 SC 36] [LNIND 1989 SC 36], Ashok Chand Singhvi v University of Jodhpur (1989) 1 SCC 399
[LNIND 1989 SC 36] [LNIND 1989 SC 36] [LNIND 1989 SC 36], Ashok Chand Singhvi v University of Jodhpur [1989] 1 SCR
182 (the contention of the University that the admission was made by mistake was not held tenable; it was made after
considering all facts and circumstances and objections by the office. Assuming the appellant was admitted by mistake, the
appellant not being at fault, there was no reason why he should suffer for the mistake committed by the University authorities).

ADMINISTRATIVE LAW/22. PROMISSORY ESTOPPEL/[005.299] Exceptions to the doctrine
[005.299] Exceptions to the doctrine The following exceptions have been spelt out to the doctrine of
estoppel:
(1) The doctrine of promissory estoppel, being an equitable doctrine, must yield when the equity
so requires and cannot be invoked when it may be inequitable to enforce it1.
(2) Promissory estoppel, being an equitable remedy, cannot be invoked if it is shown that the
representation was obtained by fraud, as fraud vitiates everything2.
(3) Public interest overrides the doctrine of promissory estoppel4.
However, it is only when the court is satisfied that the overriding public interest requires that the
government must not be held bound by the promise, will it refuse to enforce the promise
against the government5. Moreover, the courts do not interfere where the Government acts in
public interest and neither any fraud or lack of bona fides is alleged nor established6.
(4) Promissory estoppel is not available against the exercise of the legislative function of the
legislature7. However, the abovementioned rule does not apply when the government acts by
way of delegated legislation8.
(5) The plea of promissory estoppel is not available in the event of applicability of the doctrine of
ultra vires9. Promissory estoppel against the state cannot be applied when an officer has acted
directly contrary to the general instructions and specific orders issued by the Government10.
Furthermore, estoppel cannot legitimise an ultra vires, or an unconstitutional, act of the
government. Conversely, an unauthorized promise by the government does not create an
estoppel11.
(6) Promissory estoppel cannot be invoked to compel the government to do any thing prohibited
by law12. Where the liability or obligation is imposed by a statute, or where there is a statutory
prohibition, promissory estoppel cannot be applied to override the prohibition13. Hence, where
a housing scheme was prepared contrary to the master plan and in violation of the procedural
norms prescribed by the relevant statute, the high court refused to apply promissory estoppel
against the government14.
Furthermore, insistence to abide by ultra vires promise made by subordinate officers would
amount to legitimising their ultra vires acts15. Similarly, a promise or agreement to refuse tax
which is due under an Act and realised in accordance with law would be a fraud on the
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Constitution and a breach of faith of the people and hence, the government cannot be
estopped16. Where a student not having the minimum qualification for admission as laid down
in a statutory rule was admitted to the course on the recommendation of the Education
Minister, no estoppel could arise as admission was contrary to the statutory rules17.
(7) There can be no estoppel against a statute. Promissory estoppel cannot be invoked to prevent
the government from discharging its duty under the law18.
DCM Ltd v Union of India (1996) 5 SCC 468 [LNIND 1996 SC 1244] [LNIND 1996 SC 1244] [LNIND 1996 SC 1244], DCM Ltd
v Union of India (1996) 7 JT 623, DCM Ltd v Union of India (1996) 5 Scale 826 (the factual matrix was as follows:
In 1975, the Central Government announced an incentive scheme for five years for new sugar factories and those factories
which would expand their capacities during the period 1-11-75 to 20-10-80. The incentive was the release of more levy-free
sugar. On 16-8-78, sugar control was removed and sugar mills became free to sell their entire production in the free market.
On 17-12-79, quota of levy sugar was reimposed, this time the percentage being higher than that imposed in 1975. The
petitioner claimed that he must get the levy free sugar quota on the basis of the 1975 Scheme.
The Supreme Court rejected the petitioner's claim for having enjoyed 16 months of sugar decontrol, the petitioner could not in
all fairness lay claim to be restored the benefit of the incentives in full now over again though the basic promise became
non-existent.
If it can be shown by the Government or public authority that having regard to the facts as they have transpired it would be
inequitable to hold the Government or public authority to the promise or representation made by it, the court would not raise an
equity in favour of the person to whom the promise or representation is made and enforce the promise or representation against
the Government or public authority. The doctrine of promissory estoppel would be displaced in such a case because on the
facts, equity would not require that the Government or public authority should be held bound by the promise or representation
made by it).
Sharma Transport Co represented by D P Sharma v Government of Andhra Pradesh [2002] 1 LRI 231, Sharma Transport Co
represented by D P Sharma v Government of Andhra Pradesh (2002) 2 SCC 188 [LNIND 2001 SC 2753] [LNIND 2001 SC
2753] [LNIND 2001 SC 2753]; Vasantkumar Radhakisan Vora v Board of Trustees of the Port of Bombay AIR 1991 SC 14
[LNIND 1990 SC 440] [LNIND 1990 SC 440] [LNIND 1990 SC 440], Vasantkumar Radhakisan Vora v Board of Trustees of the
Port of Bombay (1991) 1 SCC 761 [LNIND 1990 SC 440] [LNIND 1990 SC 440] [LNIND 1990 SC 440], Vasantkumar
Radhakisan Vora v Board of Trustees of the Port of Bombay [1990] 3 SCR 825 [LNIND 1990 SC 440] [LNIND 1990 SC 440]
[LNIND 1990 SC 440]; Union of India v Godfrey Philips India Ltd AIR 1986 SC 806 [LNIND 1985 SC 311] [LNIND 1985 SC
311] [LNIND 1985 SC 311], Union of India v Godfrey Philips India Ltd (1985) 4 SCC 369 [LNIND 1985 SC 311] [LNIND 1985
SC 311] [LNIND 1985 SC 311], Union of India v Godfrey Philips India Ltd [1985] Supp 3 SCR 123; B Venkata Rao v Principal,
Andhra Medical College, Visakhapatnam AIR 1989 AP 159 [LNIND 1988 AP 288] [LNIND 1988 AP 288] [LNIND 1988 AP 288],
B Venkata Rao v Principal, Andhra Medical College, Visakhapatnam (1989) 2 Andh LT 491; B Seenaiah v Health University,
Vijayawada AIR 1995 AP 181 [LNIND 1995 AP 129] [LNIND 1995 AP 129] [LNIND 1995 AP 129]; Sree Rayalaseema Alkalies
and Allied Chemicals Ltd v Government of Andhra Pradesh AIR 1993 AP 278 [LNIND 1993 AP 102] [LNIND 1993 AP 102]
[LNIND 1993 AP 102], Sree Rayalaseema Alkalies and Allied Chemicals Ltd v Government of Andhra Pradesh (1993) 1 APLJ
281 [LNIND 1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993 AP 102], Sree Rayalaseema Alkalies and Allied Chemicals Ltd v
Government of Andhra Pradesh (1993) 1 Andh LT 490 [LNIND 1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993 AP 102];
Delhi Cloth and General Mills Ltd v Union of India AIR 1987 SC 2414 [LNIND 1987 SC 683] [LNIND 1987 SC 683] [LNIND 1987
SC 683], Delhi Cloth and General Mills Ltd v Union of India (1988) 1 SCC 86 [LNIND 1987 SC 683] [LNIND 1987 SC 683]
SC 683] [LNIND 1987 SC 683]; Padmasarathy Cylinders and Forgings (Pvt) Ltd, Bangalore v Andhra Pradesh Industrial
Development Corpn Ltd, Hyderabad AIR 1988 AP 33 [LNIND 1987 AP 93] [LNIND 1987 AP 93] [LNIND 1987 AP 93],
Padmasarathy Cylinders and Forgings (Pvt) Ltd, Bangalore v Andhra Pradesh Industrial Development Corpn Ltd, Hyderabad
(1987) 1 Andh LT 363 [LNIND 1987 AP 93] [LNIND 1987 AP 93] [LNIND 1987 AP 93] (the State Industrial Development
Corporation agreed to render financial assistance to a company to start an industrial project subject to the fulfilment of certain
conditions; the corporation refused to release the loan for various reasons like non-fulfilment of certain conditions. The Court
refused to give any relief on the ground of promissory estoppel); see State of Tamil Nadu v N Hari Prasad AIR 1988 Mad 212
[LNIND 1987 MAD 105] [LNIND 1987 MAD 105] [LNIND 1987 MAD 105], State of Tamil Nadu v N Hari Prasad (1987) Writ LR
343 [LNIND 1987 MAD 105] [LNIND 1987 MAD 105] [LNIND 1987 MAD 105]; Jasjeet Films (Pvt) Ltd v Delhi Development
Authority AIR 1980 Del 83 [LNIND 1979 DEL 183] [LNIND 1979 DEL 183] [LNIND 1979 DEL 183], Jasjeet Films (Pvt) Ltd v
Delhi Development Authority (1979) ILR 2 Del 742.
445
Page 42
641 [LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382] (the court would not act on the mere ipse dixit of the
government, for it is the court which has to decide and not the government whether the government should be held exempt from
liability. This is the essence of the rule of law).
5 See Aeronautics Employees Co-operative Housing Society Ltd v Government of Andhra Pradesh, Hyderabad AIR 1990 AP
331 [LNIND 1990 AP 8] [LNIND 1990 AP 8] [LNIND 1990 AP 8], Aeronautics Employees Co-operative Housing Society Ltd v
Government of Andhra Pradesh, Hyderabad (1990) 1 Andh WR 840; Modi Alkalies and Chemicals Ltd v State of Rajasthan
AIR 1992 Raj 51; American Dry Fruits Stores v Union of India AIR 1990 Bom 376 [LNIND 1990 BOM 210] [LNIND 1990 BOM
210] [LNIND 1990 BOM 210]at 389 (the Government must disclose to the Court all the necessary material, because it is for the
Court to decide whether public interest lies and what the equity of the case demands and it is only in such cases where
overriding public interest requires that the Government should not be bound the Court can decide upon it); Bharat Wools,
Ludhiana v State of Punjab AIR 1996 P & H 215, Bharat Wools, Ludhiana v State of Punjab (1997) ILR 1 P & H 121, Bharat
Wools, Ludhiana v State of Punjab (1997) 113 Punj LR 230 (Promissory estoppel cannot be applied so as to debar the
Government from taking a decision in the larger public interest); Union of India v J K Industries Ltd AIR 1991 Raj 45, Union of
India v J K Industries Ltd (1989) 2 Raj LW 386 (the government cannot unilaterally revoke the benefits granted by an earlier
notification and, therefore, the latter notification withdrawing the concession was bad and had to be quashed).
6 Kasinka Trading v Union of India AIR 1995 SC 874 at 883, Kasinka Trading v Union of India (1995) 1 SCC 274, Kasinka
Trading v Union of India (1994) 7 JT 362; Shrijee Sales Corpn v Union of India (1997) 3 SCC 398 [LNIND 1996 SC 2632]
[LNIND 1996 SC 2632] [LNIND 1996 SC 2632], Shrijee Sales Corpn v Union of India (1997) 11 JT 648, Shrijee Sales Corpn v
Union of India (1997) 1 Scale 117; State of Himachal Pradesh v Ganesh Wood Products AIR 1996 SC 149 [LNIND 1995 SC
897] [LNIND 1995 SC 897] [LNIND 1995 SC 897]at 165, State of Himachal Pradesh v Ganesh Wood Products (1995) 6 SCC
363 [LNIND 1995 SC 897] [LNIND 1995 SC 897] [LNIND 1995 SC 897], State of Himachal Pradesh v Ganesh Wood Products
(1995) 6 JT 485 [LNIND 1995 SC 897] [LNIND 1995 SC 897] [LNIND 1995 SC 897], Darshan Oils Pvt Ltd v Union of India AIR
1995 SC 370 [LNIND 1994 SC 1012] [LNIND 1994 SC 1012] [LNIND 1994 SC 1012], Darshan Oils Pvt Ltd v Union of India
(1995) 1 SCC 345 [LNIND 1994 SC 1012] [LNIND 1994 SC 1012] [LNIND 1994 SC 1012], Darshan Oils Pvt Ltd v Union of India
(1995) 1 JT 219; P TR Exports (Madras) Pvt Ltd v Union of India AIR 1996 SC 3461, P TR Exports (Madras) Pvt Ltd v Union of
India (1996) 5 SCC 268, P TR Exports (Madras) Pvt Ltd v Union of India (1996) 6 JT 435.
7 Sree Rayalaseema Alkalies and Allied Chemicals Ltd v Government of Andhra Pradesh AIR 1993 AP 278 [LNIND 1993 AP
102] [LNIND 1993 AP 102] [LNIND 1993 AP 102], Sree Rayalaseema Alkalies and Allied Chemicals Ltd v Government of
Andhra Pradesh (1993) 1 APLJ 281 [LNIND 1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993 AP 102], Sree Rayalaseema
Alkalies and Allied Chemicals Ltd v Government of Andhra Pradesh (1993) 1 Andh LT 490 [LNIND 1993 AP 102] [LNIND 1993
AP 102] [LNIND 1993 AP 102]; N Ramanatha Pillai v State of Kerala AIR 1973 SC 2641 [LNIND 1973 SC 250] [LNIND 1973
SC 250] [LNIND 1973 SC 250], N Ramanatha Pillai v State of Kerala (1973) 2 SCC 650 [LNIND 1973 SC 250] [LNIND 1973 SC
250] [LNIND 1973 SC 250], N Ramanatha Pillai v State of Kerala [1974] 1 SCR 515 [LNIND 1973 SC 250] [LNIND 1973 SC
250] [LNIND 1973 SC 250]; Express Newspapers Pvt Ltd v Union of India AIR 1986 SC 872 [LNIND 1985 SC 321] [LNIND
1985 SC 321] [LNIND 1985 SC 321], Express Newspapers Pvt Ltd v Union of India (1986) 1 SCC 133 [LNIND 1985 SC 321]
[LNIND 1985 SC 321] [LNIND 1985 SC 321], Express Newspapers Pvt Ltd v Union of India [1985] Supp 3 SCR 382; see Vij
Resins (Pvt) Ltd v State of Jammu and Kashmir AIR 1989 SC 1629 [LNIND 1989 SC 325] [LNIND 1989 SC 325] [LNIND 1989
SC 325], Vij Resins (Pvt) Ltd v State of Jammu and Kashmir (1989) 3 SCC 115 [LNIND 1989 SC 325] [LNIND 1989 SC 325]
[LNIND 1989 SC 325], Vij Resins (Pvt) Ltd v State of Jammu and Kashmir [1989] 3 SCR 257 [LNIND 1989 SC 325] [LNIND
1989 SC 325] [LNIND 1989 SC 325] (under the scheme offering land and other facilities to industrialists to set up industries,
formulated by the Government in order to develop industries in the State, the petitioners were given the right to extract and
process oleo resin gum from forests for a long period. The Jammu & Kashmir Extraction of Resin Act 1986, put an end to
private rights to extract oleo resin from government forests without providing compensation to the private owners who were
adversely affected by the legislation. The Supreme Court declared the Act unconstitutional under arts 19 (1) (f) and 31 of the
Constitution as applicable to the State. While promissory estoppel could not apply against the Legislature, it could certainly
apply against the State Government, the Act having been declared unconstitutional).
8 Pournami Oil Mills v State of Kerala AIR 1987 SC 590 [LNIND 1986 SC 529] [LNIND 1986 SC 529] [LNIND 1986 SC 529],
Pournami Oil Mills v State of Kerala (1986) Supp SCC 728 [LNIND 1986 SC 529] [LNIND 1986 SC 529] [LNIND 1986 SC 529],
Pournami Oil Mills v State of Kerala [1987] 1 SCR 654 [LNIND 1986 SC 529] [LNIND 1986 SC 529] [LNIND 1986 SC 529];
Bharat Commerce and Industries Ltd v Union of India (1987) 32 ELT 40 (Bom). As to 'delegated legislation' see [005.009].
See Union of India v Chakra Tyres Ltd (1990) 45 ELT 3 (Mad); Tapti Oil Industries v State of Maharashtra AIR 1984 Bom 161
[LNIND 1983 BOM 97] [LNIND 1983 BOM 97] [LNIND 1983 BOM 97], Tapti Oil Industries v State of Maharashtra (1984) 86
Bom LR 67 [LNIND 1983 BOM 97] [LNIND 1983 BOM 97] [LNIND 1983 BOM 97], Tapti Oil Industries v State of Maharashtra
(1984) Mah LJ 321 [LNIND 1983 BOM 97] [LNIND 1983 BOM 97] [LNIND 1983 BOM 97]; Union of India v Hindustan Platinum
Pvt Ltd (1989) 44 ELT 443 [LNIND 1989 BOM 98] [LNIND 1989 BOM 98] [LNIND 1989 BOM 98] (Bom); Orissa Cement Ltd v
Superintendent, Customs and Central Excise (1992) 61 ELT 256 (Ori); Vikrant Tyres Ltd v Union of Inida (1992) 61 ELT 381
(Kant); Union of India v Rizwan International AIR 1993 Mad 336 [LNIND 1993 MAD 122] [LNIND 1993 MAD 122] [LNIND 1993
MAD 122], Union of India v Rizwan International (1993) 1 Mad LJ 569; Shri Bajrang Extraction Pvt Ltd v Secretary to the
Government of Madhya Pradesh AIR 1993 MP 202 [LNIND 1993 MP 75] [LNIND 1993 MP 75] [LNIND 1993 MP 75].
9 Sharma Transport Co represented by D P Sharma v Government of Andhra Pradesh [2002] 1 LRI 231, Sharma Transport Co
represented by D P Sharma v Government of Andhra Pradesh (2002) 2 SCC 188 [LNIND 2001 SC 2753] [LNIND 2001 SC
2753] [LNIND 2001 SC 2753]. See also Amrit Banaspati Co Ltd v State of Punjab AIR 1992 SC 1075 [LNIND 1992 SC 211]
[LNIND 1992 SC 211] [LNIND 1992 SC 211], Amrit Banaspati Co Ltd v State of Punjab (1992) 2 SCC 411 [LNIND 1992 SC
211] [LNIND 1992 SC 211] [LNIND 1992 SC 211], Amrit Banaspati Co Ltd v State of Punjab [1992] 2 SCR 13 [LNIND 1992 SC
446
Page 43
211] [LNIND 1992 SC 211] [LNIND 1992 SC 211] (one of the incentives announced by the Government in its drive to promote
industrialisation in the State, for those setting up large scale industries, was refund of sales tax; subsequently, the Government
wanted to wriggle out of the obligation arising out of the promissory estoppel and pleaded that the promise was made by
unauthorised officers and that, in 1966, a cabinet committee had decided against refunding sales tax and yet the officials in an
unauthorized manner went ahead with offering incentives to the appellants. Therefore, pleaded the Government, the action of
the officials could not create any right in the appellants' favour). As to doctrine of ultra vires see [005.183].
10 DR Kohli v Atul Products Ltd AIR 1985 SC 537 [LNIND 1985 SC 50] [LNIND 1985 SC 50] [LNIND 1985 SC 50], DR Kohli v
Atul Products Ltd (1985) 2 SCC 77 [LNIND 1985 SC 50] [LNIND 1985 SC 50] [LNIND 1985 SC 50], DR Kohli v Atul Products
Ltd [1985] 2 SCR 832 [LNIND 1985 SC 50] [LNIND 1985 SC 50] [LNIND 1985 SC 50]; Sree Rayalaseema Alkalies and Allied
Chemicals Ltd v Government of Andhra Pradesh AIR 1993 AP 278 [LNIND 1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993
AP 102], Sree Rayalaseema Alkalies and Allied Chemicals Ltd v Government of Andhra Pradesh (1993) 1 APLJ 281 [LNIND
1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993 AP 102], Sree Rayalaseema Alkalies and Allied Chemicals Ltd v Government
of Andhra Pradesh (1993) 1 Andh LT 490 [LNIND 1993 AP 102] [LNIND 1993 AP 102] [LNIND 1993 AP 102]; Chetal Sao v
State of Bihar AIR 1986 Pat 267, Chetal Sao v State of Bihar (1986) Bih LJ 170, Chetal Sao v State of Bihar (1986) Pat LJR
149.
11 Express Newspapers Pvt Ltd v Union of India AIR 1986 SC 872 [LNIND 1985 SC 321] [LNIND 1985 SC 321] [LNIND 1985
SC 321], Express Newspapers Pvt Ltd v Union of India (1986) 1 SCC 133 [LNIND 1985 SC 321] [LNIND 1985 SC 321] [LNIND
1985 SC 321], Express Newspapers Pvt Ltd v Union of India [1985] Supp 3 SCR 382 (no estoppel can legitimise an action
which is ultra vires); P V Balakrishnan Nair v State of Kerala AIR 1994 Ker 6 [LNIND 1993 KER 252] [LNIND 1993 KER 252]
[LNIND 1993 KER 252], P V Balakrishnan Nair v State of Kerala (1994) ILR 2 Ker 139, P V Balakrishnan Nair v State of Kerala
(1994) 1 Ban Cas 477; Bajrang Industries v General Manager, District Industries Centre, Vizianagaram District AIR 1994 AP 10
[LNIND 1993 AP 271] [LNIND 1993 AP 271] [LNIND 1993 AP 271], Bajrang Industries v General Manager, District Industries
Centre, Vizianagaram District (1993) 2 Andh LT 450 [LNIND 1993 AP 271] [LNIND 1993 AP 271] [LNIND 1993 AP 271].
12 Union of India v Godfrey Philips India Ltd AIR 1986 SC 806 [LNIND 1985 SC 311] [LNIND 1985 SC 311] [LNIND 1985 SC
311], Union of India v Godfrey Philips India Ltd (1985) 4 SCC 369 [LNIND 1985 SC 311] [LNIND 1985 SC 311] [LNIND 1985
SC 311], Union of India v Godfrey Philips India Ltd [1985] Supp 3 SCR 123 (promissory estoppel cannot be used to compel the
government or a public authority to carry out a representation or promise which is contrary to law); Home Secretary, Union
Territory of Chandigarh v Darshjit Singh Grewal (1993) 4 SCC 25, Union Territory of Chandigarh v Darshjit Singh Grewal (1993)
4 JT 387, Union Territory of Chandigarh v Darshjit Singh Grewal (1993) 3 Scale 218 (doctrine of promissory estoppel cannot be
invoked against a statutory provision or to support an ultra vires act or to compel the government or a public authority to carry
out a promise which is contrary to law or ultra vires its powers); Ram Nath Sahu v Union of India through Secretary, Ministry of
Agriculture AIR 1996 All 19 [LNIND 1994 ALL 642] [LNIND 1994 ALL 642] [LNIND 1994 ALL 642], Ram Nath Sahu v Union of
India through Secretary, Ministry of Agriculture (1996) All LJ 173
SC 683] [LNIND 1987 SC 683]; Comr of Income-Tax (Central), Calcutta v BN Bhattacharjee AIR 1979 SC 1725 [LNIND 1979
SC 274] [LNIND 1979 SC 274] [LNIND 1979 SC 274], Comr of Income-Tax (Central), Calcutta v BN Bhattacharjee (1979) 4
SCC 121 [LNIND 1979 SC 274] [LNIND 1979 SC 274] [LNIND 1979 SC 274], Comr of Income-Tax (Central), Calcutta v BN
Bhattacharjee [1979] 2 SCR 1133.
14 Hind Housing Co-operative Society Ltd v State of Madhya Pradesh AIR 1987 MP 193 [LNIND 1986 MP 100] [LNIND 1986
MP 100] [LNIND 1986 MP 100].
15 Vasantkumar Radhakisan Vora v Board of Trustees of the Port of Bombay AIR 1991 SC 14 [LNIND 1990 SC 440] [LNIND
1990 SC 440] [LNIND 1990 SC 440], Vasantkumar Radhakisan Vora v Board of Trustees of the Port of Bombay (1991) 1 SCC
761 [LNIND 1990 SC 440] [LNIND 1990 SC 440] [LNIND 1990 SC 440], Vasantkumar Radhakisan Vora v Board of Trustees of
the Port of Bombay [1990] 3 SCR 825 [LNIND 1990 SC 440] [LNIND 1990 SC 440] [LNIND 1990 SC 440] (before making the
public authority responsible for acts of its subordinate, it must be established that the subordinate officer did in fact make the
representation, and as a fact, is competent to make a binding promise on behalf of the public authority or government; ultra
vires acts do not bind the authority).
16 Amrit Banaspati Co Ltd v State of Punjab AIR 1992 SC 1075 [LNIND 1992 SC 211] [LNIND 1992 SC 211] [LNIND 1992 SC
211], Amrit Banaspati Co Ltd v State of Punjab (1992) 2 SCC 411 [LNIND 1992 SC 211] [LNIND 1992 SC 211] [LNIND 1992
SC 211], Amrit Banaspati Co Ltd v State of Punjab [1992] 2 SCR 13 [LNIND 1992 SC 211] [LNIND 1992 SC 211] [LNIND 1992
SC 211]; see Intrans Systems Pvt Ltd v State of Kerala AIR 1996 Ker 161 [LNIND 1995 KER 355] [LNIND 1995 KER 355]
[LNIND 1995 KER 355].
17 Rajesh Namdeo v Awadhesh Pratap Singh Vishwavidyalaya, Rewa AIR 1988 MP 13; Mukesh Kumar Tiwari v Rani
Durgawati Vishwavidyalaya AIR 1989 MP 292, Mukesh Kumar Tiwari v Rani Durgawati Vishwavidyalaya (1989) MPLJ 476;
Vice-Chancellor, University of Allahabad v Som Prakash Ratnakar AIR 2001 All 319 [LNIND 2001 ALL 765] [LNIND 2001 ALL
765] [LNIND 2001 ALL 765], Vice-Chancellor, University of Allahabad v Som Prakash Ratnakar (2001) All LJ 2518,
Vice-Chancellor, University of Allahabad v Som Prakash Ratnakar (2001) 44 All LR 784.
18 Paradise Printers v Union Territory of Chandigarh AIR 1988 SC 354 [LNIND 1987 SC 817] [LNIND 1987 SC 817] [LNIND
1987 SC 817], Paradise Printers v Union Territory of Chandigarh (1988) 1 SCC 440 [LNIND 1987 SC 817] [LNIND 1987 SC
447
Page 44
817] [LNIND 1987 SC 817], Paradise Printers v Union Territory of Chandigarh [1988] 2 SCR 157 [LNIND 1987 SC 817] [LNIND
1987 SC 817] [LNIND 1987 SC 817].
2 As to the principle of natural justice, see [005.054]. and following.

ADMINISTRATIVE LAW/22. PROMISSORY ESTOPPEL/[005.300] Doctrine of estoppel and promissory
estoppels
[005.300] Doctrine of estoppel and promissory estoppels The doctrine of estoppel1 is distinguished from
the equitable doctrine of promissory estoppel2 on the basis of its applicability applicability against the
government3.
The three conditions necessary to be satisfied to invoke the doctrine of estoppel are:
(1) there must be a declaration, act or omission on the part of a person;

(2) by the said declaration, act or omission that person must have intentionally caused or
permitted another person to believe a thing to be true; and
(3) he must have intentionally caused or permitted the said person to act upon such belief4.
Hence, the doctrine of estoppel is a rule of evidence, whereas the doctrine of promissory estoppel is a rule of
equity, creating substantive rights in favour of the person to whom a representation has been made or an
assurance has been given5. A case which may not be covered under the doctrine of estoppel may still be
governed by the scope of equitable doctrine6.
The doctrine of estoppel relates to facts alleged to be actually in existence at the time, and no estoppel
arises if the declaration, act or omission refers to a promise. However, the equitable doctrine of promissory
estoppel covers promises as to the future, or representation containing statements as to the future course of
conduct to be followed by the person making the promise or representation7.
Promissory estoppel will not operate against a statute, and any statement of promise made will not bind the
government if it is against the statute, or has been made in a manner not prescribed by it8. However, under
Indian Evidence Act 18729, estoppel may lie against the government on a representation or statement of
fact, if the statement does not operate against a statute10.
1 As to doctrine of estoppel see generally [140]ESTOPPEL AND WAIVER.
2 As to doctrine of promissory estoppel see [005.297] and following.
3 Municipal Corpn of the City of Bombay v Secretary of State for India in Council (1905) 29 ILR Bom 580, Municipal Corpn of
the City of Bombay v Secretary of State for India in Council (1905) 7 Bom LR 27.
4 Ie the Indian Evidence Act 1872 s 115.
5 As to scope of doctrine of promissory estoppel see[005.298]
6 Union of India v Anglo-Afghan Agencies AIR 1968 SC 718 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC
334], Union of India v Anglo-Afghan Agencies [1968] 2 SCR 366 [LNIND 1967 SC 334] [LNIND 1967 SC 334] [LNIND 1967 SC
334], Union of India v Anglo-Afghan Agencies (1968) 2 SCA 31.
7 Jethabhai Parbhudas v Nathabhai Bavaji (1904) 28 ILR Bom 399, Jethabhai Parbhudas v Nathabhai Bavaji (1904) 6 Bom LR
428; Parshottam Jethalal Soni v Secretary of State AIR 1938 Bom 148, Parshottam Jethalal Soni v Secretary of State 174 IC
67, Parshottam Jethalal Soni v Secretary of State (1937) 39 Bom LR 1257.
8 As to exceptions to the doctrine of promissory estoppel see [005.299].
9 Ie under the Indian Evidence Act 1872 s 115 (when one person has, by his declaration, permitted another person to believe a
448
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thing neither he nor his representative, to deny the truth of that thing).
10 See University of Delhi v Ashok Kumar Chopra AIR 1968 Del 131 [LNIND 1967 DEL 146] [LNIND 1967 DEL 146] [LNIND
1967 DEL 146]at 141; Naba Kishore Gadapalla v Utkal University AIR 1978 Ori 65 [LNIND 1977 ORI 31] [LNIND 1977 ORI 31]
[LNIND 1977 ORI 31], Naba Kishore Gadapalla v Utkal University (1978) ILR Cut 78, Naba Kishore Gadapalla v Utkal
University (1977) 2 Cut WR 658; Uma Shanker Misra v Board of High School and Intermediate Education Uttar Pradesh,
Allahabad AIR 1974 All 290; Nirupama Mohanty v State of Orissa AIR 1977 Ori 123. Cf Shri Krishan v Kurukshetra University,
Kurukshetra AIR 1976 SC 376 [LNIND 1975 SC 446] [LNIND 1975 SC 446] [LNIND 1975 SC 446], Shri Krishan v Kurukshetra
University, Kurukshetra (1976) 1 SCC 311 [LNIND 1975 SC 446] [LNIND 1975 SC 446] [LNIND 1975 SC 446], Shri Krishan v
Kurukshetra University, Kurukshetra [1976] 2 SCR 722 [LNIND 1975 SC 446] [LNIND 1975 SC 446] [LNIND 1975 SC 446];
Union of India v Rasul Ahmed AIR 1970 Ori 157 [LNIND 1969 ORI 18] [LNIND 1969 ORI 18] [LNIND 1969 ORI 18](the railway
authorities charged with the duty of delivering the consignment represented to the plaintiff that the consignment had not arrived
and the consignee having acted on the basis of such representation, a plea of estoppel would be available to the consignee
against the railway administration).

ADMINISTRATIVE LAW/23. LEGITIMATE EXPECTATION/[005.301] In general
[005.301] In general Legitimate expectation includes expectations which go beyond any enforceable legal
right, provided it has some reasonable basis. Expectation may be based upon some express statements or
undertaking by, or on behalf of, the public authority which has the duty of making the decision, or from the
existence of a regular practice which the claimant can reasonably expect to continue. A person may claim a
hearing before his deprived of his legitimate expectation1.
1 Schmidt v Secretary of State for Home Affairs [1969] 2 Ch 149, Schmidt v Secretary of State for Home Affairs [1968] 1 All ER
904 (a foreigner whose permit to stay in Britain had expired, has no right to be heard if he was refused extension of time to stay
longer because a foreigner has no legitimate expectation of being allowed to stay after the expiry of his permit. However, if the
stay permit was being revoked before its expiry, he could claim a hearing as he was being deprived of his legitimate expectation
of being allowed to stay for the period of the permit).
A-G of Hong Kong v Ng Yuen Shiu [1983] 2 AC 629, A-G of Hong Kong v Ng Yuen Shiu [1983] 2 All ER 346, PC (illegal
immigrant was entitled to be heard before being deported because of the government undertaking to that effect) following
Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, Council of Civil Service Unions v Minister for the
Civil Service [1984] 3 All ER 935, HL. See R v Board of Visitors of Hull Prison, exp St Germain [1979] QB 425, R v Board of
Visitors of Hull Prison, exp St Germain [1979] 1 All ER 701, CA; O'Reilly v Mackman [1983] 2 AC 237, O'Reilly v Mackman
[1982] 3 All ER 1124, HL. As to the doctrine of legitimate expectation as prevailing in India see [005.302].

ADMINISTRATIVE LAW/23. LEGITIMATE EXPECTATION/[005.302] Doctrine of legitimate expectation
[005.302] Doctrine of legitimate expectation The doctrine of legitimate expectation is based on the
provisions of the Constitution1. The constitutional provision imposes the duty to act fairly on all public
authorities and, hence, people can have a legitimate expectation that they will be treated fairly by the state
and all its instrumentalities2.
The legitimacy of the expectation of the claimant will be determined in accordance with the larger public
interest wherein other more important considerations may outweigh what would otherwise may have been
the legitimate expectation of the claimant3. Hence, public interest overrides the legitimate expectation of an
individual4.
Salient propositions of the doctrine of legitimate expectation are:
(1) Legitimate expectation provides the applicant sufficient locus standi for judicial review5.
(2) The doctrine is confined to right of a fair hearing6.
449
Page 46
(3) The doctrine does not entitle a person to seek relief directly from administrative authorities as
no crystallised right as such is involved.
(4) Legitimate expectation need not be fulfilled if public interest requires otherwise.
(5) Even if substantive protection of legitimate expectation is envisaged, it does not grant an
absolute right to a particular person. It simply ensures the circumstances in which that
expectation may be denied or restricted.
(6) A case of legitimate expectation arises when a body by representation or past practice
aroused expectation which it would be within its powers to fulfil.
(7) Legitimate expectation cannot be affected by a decision taken by the authority which is
arbitrary, unreasonable and not taken in public interest.
(8) The courts do not interfere with a policy decision7.
However, while the government may be free to change its policy, and the doctrine of legitimate expectation
may not interfere with the discretion of the executive to formulate or reformulate policies, equities may arise
in favour of certain persons when an existing policy is changed, and the Administration must provide for a
transition period for changing to the new policy8.
1 See natural justice [005.051]. See also M P Jain, 'A Treatise on Administrative Law', (Vol 1).
2 Food Corpn of India v Kamdhenu Cattle Feed Industries AIR 1993 SC 1601 [LNIND 1992 SC 794] [LNIND 1992 SC 794]
[LNIND 1992 SC 794], Food Corpn of India v Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 [LNIND 1992 SC 794] [LNIND
1992 SC 794] [LNIND 1992 SC 794], Food Corpn of India v Kamdhenu Cattle Feed Industries [1992] Supp 2 SCR 322 (in all
state actions, the state and its instruments must conform to art 14 of the Constitution of which non-arbitrariness is a significant
fact. No public authority enjoys an unfettered discretionary power and hence possesses powers only to use them for public
good. The principle mentioned above imposes the 'duty to act fairly' and due observance of this obligation as a part of good
administration raises a 'reasonable or legitimate expectation in every citizen to be treated fairly in its interaction with the state
and its instrumentalities, with this element forming a necessary component of the decision-making process 'in all state actions'.
'To satisfy this requirement of non-arbitrariness in a state action, it is therefore, necessary to consider and give due weight to
the reasonable or legitimate expectations of the persons likely to be affected by the decision or else that unfairness in the
exercise of the power may amount to an abuse or excess of power apart from affecting the bona fides of the decision in a given
case. The decision so made would be exposed to challenge on the ground of arbitrariness. The mere reasonable legitimate
expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due
weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation
forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a
relevant factor requiring due consideration in a fair decision-making process').
3 ; British Oxygen Co Ltd v Minister of Technology [1971] AC 610, British Oxygen Co Ltd v Minister of Technology [1970] 3 All
ER 165, British Oxygen Co Ltd v Minister of Technology [1970] 3 WLR 488, British Oxygen Co Ltd v Minister of Technology 49
ATC 154, HL (Legitimate expectation is not merely a procedural benefit or protection but a substantive legitimate expectation
has also been recognized. In the instant case, the applicant had contended that it was his legitimate expectation that either the
licensing policy would not be changed, or that when radical and severe measures were adopted either proper transitional
provisions, or, proper 'pipeline' provisions (ie provision to cover transactions already in progress) would be made by the
Government. The applicant contended that the department was duty bound to give separate consideration to his own peculiar
position and, if appropriate, to make an exception in his favour. Sedley, J, ruled that even though policy change may take place
from time to time, the policy maker should seek to accommodate legitimate expectations.
Hence, it is an obligation to exercise powers fairly, which permits expectations to be counterpoised to policy change, not
necessarily in order to thwart it but in order to seek a proper exception to the policy.
While the court accepts ministerial freedom to formulate and to reformulate policy, it is equally the court's duty to protect the
interest of those individuals whose expectation of different treatment has a legitimacy which in fairness overrules the policy
choice which tends to frustrate it.
Legitimate expectation is now reserved for expectations which are not only reasonable but which will be sustained by the court
in the face of changes of policy).
1992 SC 794] [LNIND 1992 SC 794], Food Corpn of India v Kamdhenu Cattle Feed Industries [1992] Supp 2 SCR 322. (a bona
fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand
judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in
this manner and to this extent).

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6 As to fair hearing see [005.058].
7 See Union of India v Hindustan Development Corpn AIR 1994 SC 988 [LNIND 1993 SC 1080] [LNIND 1993 SC 1080]
[LNIND 1993 SC 1080], Union of India v Hindustan Development Corpn (1993) 3 SCC 499 [LNIND 1993 SC 1080] [LNIND
1993 SC 1080] [LNIND 1993 SC 1080], Union of India v Hindustan Development Corpn (1993) 3 JT 15
8 See note 7 above.

ADMINISTRATIVE LAW/23. LEGITIMATE EXPECTATION/[005.303] Legitimate expectations
[005.303] Legitimate expectations, when may arise Legitimate expectations may arise in the following
situations:
(1) if there is an express promise given by a public authority; or

(2) because of the existence of a regular practice which the claimant can reasonably expect to
continue1.
Where there is a change in policy or in public interest, the position is altered by a rule or legislation, no
question of legitimate expectation may arise2.
The doctrine of legitimate expectation is not applicable in relation to a dispute arising out of a contract qua
contract3.
Furthermore, the doctrine of legitimate expectation cannot be invoked to modify or vary the express terms of
a contract, more so when they are statutory in nature. The contracts are entered into voluntarily pursuant to
public action, that is, floating of tenders or by negotiation and hence there is no compulsion on anyone to
enter into these contracts4. Moreover, no person can have a legitimate expectation that his tender will be
accepted. A tenderer merely has a right to have his tender considered fairly5.
Hence legitimate expectation is not by itself a distinct enforceable right, but failure to consider and give due
weight to it may render the decision arbitrary6.
1 Bharat Wools, Ludhiana v State of Punjab AIR 1996 P & H 215, Bharat Wools, Ludhiana v State of Punjab (1997) ILR 1 P &
H 121, Bharat Wools, Ludhiana v State of Punjab (1997) 113 Punj LR 230 (the Punjab State Knitwear Development
Corporation, a body controlled by the state Government, invited applications for allotment of industrial plots to knit wear
manufacturers. The appellants applied and deposited the earnest money. The managing director of the corporation allotted
plots to the applicants without consulting the allotment committee and they deposited the balance of the price of the plot. In the
meantime, the Minister called for the record and after hearing the parties cancelled the allotment in their favour. They
challenged the cancellation of the allotment on the ground that they were deprived of their legitimate expectation by the
minister. However, the court rejected the contention and upheld the minister's order as there was usurpation of power by the
managing director.
The power to allot industrial plots was vested in the allotment committee. Instead, the power was usurped by the chairman of
the committee who himself made the allotment without reference to the committee; thereby converting himself into sole
repository of power and made offers of allotment whimsically and arbitrarily. The order of allotment thus suffered from patent
arbitrariness.
It was also argued that no fresh applications be invited and the plots to the applicants who had earlier made the applications for
the purpose. The argument was justified on the basis of the legitimate expectation of these applicants. The plea of promissory
estoppel was also raised. The court rejected the argument by saying that the government made no promise that the applicants
would necessarily get a plot "By inviting applications, the government simply invited the individuals to come in a queue for
competition." The plea of promissory estoppel cannot bar the government from taking a decision in larger public interest. The
court pointed out that more than one and half year had elapsed since the applicants were invited for allotment of plots. Land
prices had in the meantime shot up substantially. It would be against public interest to allot the land amongst original applicants
at the price advertised then. 'Public interest warrants that the Government and the corporation get maximum price and the most
competent entrepreneur is given opportunity'. An element of speculation and uncertainty is inherent in that very concept and
that the courts ought not to review administrative decisions on merits; the courts must restrain themselves and restrict claims
451
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only to the legal limitations).
Madras City Wine Merchants' Association v State of Tamil Nadu (1994) 5 SCC 509, Madras City Wine Merchants' Association
v State of Tamil Nadu (1994) 5 JT 655, Madras City Wine Merchants' Association v State of Tamil Nadu (1994) 3 Scale 575
(under the Tamil Nadu Prohibition Act (i) 1937, two sets of rules were promulgated, viz the Tamil Nadu Liquor (Retail Vending)
Rules 1989 and the Tamil Nadu Liquor (Retail Vending in Bar) Rules 1992. Both introduced licensing systems-one for retail
liquor vending and the other for operating a bar. The latter license could be had only by one who had a license under the former
rules. The duration of the bar licensees was one year. In 1993, the Bar Rules 1992, were rescinded. The question arose
whether the holders of the bar licences had a legitimate expectation that their licences would be renewed after a year, the
period for which the licences were initially issued.
Refusing to apply the doctrine of legitimate expectation in the instant situation, the Court pointed out that there was absolutely
no promise of renewal of bar licences at all. The bar rules were subordinate legislation and no fetter could be imposed on repeal
of subordinate legislation whenever needed in public interest. The decision not to renew these licences had been taken much
before the time-limit for renewing the licences. It became necessary to repeal the bar order in public interest).
Ghaziabad Development Authority v Delhi Auto and General Finance Pvt Ltd AIR 1994 SC 2263, Ghaziabad Development
Authority v Delhi Auto and General Finance Pvt Ltd (1994) 4 SCC 42, Ghaziabad Development Authority v Delhi Auto and
General Finance Pvt Ltd (1994) 3 JT 275 (In the master plan prepared for development of an area in Ghaziabad, some land
was reserved for recreational purposes, a part of which belonged to the petitioner, a coloniser. Subsequently, the Government
changed the land use from 'recreational' to 'residential'.
The applicant then submitted an application on for permission to develop his land. The government again changed the land use
of the area from 'residential' to 'recreational'. Accordingly, the application of the appellant was rejected. He challenged the
decision of the government on the ground that after the land use of the area had been changed from 'recreational' to
'residential,' he had a legitimate expectation that he could develop a housing colony on his land. He, accordingly, challenged the
change of user of land as arbitrary and illegal. The Supreme Court rejected the petition saying that no legitimate expectation
could arise when construction of the colony was subject to the permission of the Ghaziabad Development Authority.
The court further went on to observe that the grant of permission by the authority was not automatic and the master plan could
always be amended. The court emphasized that legitimate expectation as such is not an enforceable right. However, non
considerations of legitimate expectation of a person adversely affected by a decision may invalidate the decision on the ground
of arbitrariness. The plea of legitimate expectation relates to procedural fairness in decision-making and forms part of rule of
non-arbitrariness; and it is not meant to confer an independent right enforceable itself).
[LNIND 1978 SC 382] [LNIND 1978 SC 382] [LNIND 1978 SC 382]; see S B International Ltd v Assistant Director General of
Foreign Trade AIR 1996 SC 2921 [LNIND 1996 SC 196] [LNIND 1996 SC 196] [LNIND 1996 SC 196], S B International Ltd v
Assistant Director General of Foreign Trade (1996) 2 SCC 439 [LNIND 1996 SC 196] [LNIND 1996 SC 196] [LNIND 1996 SC
196], S B International Ltd v Assistant Director General of Foreign Trade (1996) 1 JT 588 (the Government announced a
scheme of advance licensing for import of raw materials subject to export of finished goods being made within a specified time
and value added was 1000 per cent. The petitioner entered into an export contract and thereupon made application for grant of
advance import license. Pending his application, the scheme was modified and now the value added was to be 1900%. The
petitioner argued that since he had made application before the date of modification of the policy it ought not to apply to him.
The Supreme Court rejected his contention arguing that mere making of an application does not create any right that the licence
would be granted to him. The Court also rejected the plea of 'promissory estoppel' as the necessary conditions for the same as
laid down in the case were not fulfilled).
4 A C Roy Co v Union of India AIR 1995 Cal 246 [LNIND 1995 CAL 56] [LNIND 1995 CAL 56] [LNIND 1995 CAL 56]; Indian
Aluminium Co Ltd v Karnataka Electricity Board AIR 1992 SC 2169 [LNIND 1992 SC 401] [LNIND 1992 SC 401] [LNIND 1992
SC 401], Indian Aluminium Co Ltd v Karnataka Electricity Board (1992) 3 SCC 580 [LNIND 1992 SC 401] [LNIND 1992 SC 401]
[LNIND 1992 SC 401], Indian Aluminium Co Ltd v Karnataka Electricity Board (1992) 3 JT 535 [LNIND 1992 SC 401] [LNIND
1992 SC 401] [LNIND 1992 SC 401]. As to contracts see generally contracts [95] (a tripartite agreement between the company,
the Electricity Board and the State fixing concessional rate for supply of electricity to the company, a manufacturer of aluminum
was superseded by an Act of the state legislature. The Act empowered the Electricity Board to increase tariff rates
notwithstanding any agreement with the consumers. The increase in electricity rates was challenged by the company on the
ground of legitimate expectation. The Supreme Court refused to apply the legitimate expectation principle to the fact situation in
the instant case on the ground that when relationship between the parties is contractual, there is no scope for application of
legitimate expectation. The agreement was not the outcome of any unilateral promise or assurance held out by the State or the
Board to the Company. The agreement was the result of negotiations between the parties. Hence, the foundation for application
of legitimate expectation was absent).
1992 SC 794] [LNIND 1992 SC 794], Food Corpn of India v Kamdhenu Cattle Feed Industries [1992] Supp 2 SCR 322 (the
452
Page 49
Food Corporation of India invited tenders for sale of a quantity of defective foodgrains. The respondent's tender was the highest
but the FCI did not accept it. Instead, it called all the tenderers for a conference and was able to negotiate a much higher price
for sale of the foodgrains in question than the highest price offered by the tenderer in question. Thus, FCI benefited to the time
of Rs 20 lacs.
The respondent challenged through a writ petition FCI's decision not to accept his tender as arbitrary. He also claimed that he
had a legitimate expectation that his tender being the highest would be accepted. The Supreme Court rejected the petitioner's
contention arguing that a tenderer has no right that his tender would be accepted. A public authority has to act fairly and no
consideration by it of a person's legitimate expectation may make its decision unfair which may amount to an abuse of power
making the decission arbitrary. But the legitimate expectation of a citizen "may not by itself be a distinct enforceable right.
However, there may arise a situation, when the non-consideration of the legitimate expectation of a tenderer may result in the
invalidation of the administrative action in question).
Assistant Excise Comr v Issac Peter (1994) 4 SCC 104, Assistant Excise Comr v Issac Peter (1994) 2 JT 140, Assistant Excise
Comr v Issac Peter (1994) 1 Scale 715; D Wren International Ltd v Engineers India Ltd AIR 1996 Cal 424 [LNIND 1996 CAL
94] [LNIND 1996 CAL 94] [LNIND 1996 CAL 94]; AC Roy Co v Union of India AIR 1995 Cal 246 [LNIND 1995 CAL 56] [LNIND
1995 CAL 56] [LNIND 1995 CAL 56].
6 Mogo Nagi v State of Nagaland AIR 1995 Gau 6 (the state government invited tenders for sale of pipes with a stipulation that
the highest rate would be accepted. The Government accepted the highest tender but allotted certain quantity of the pipes to a
non-tenderer. The court held this to be an arbitrary action on the part of the Government. The Court ruled that the highest
tenderer had legitimate expectation that the entire quantity for which the tender was invited would be allotted to him. The court
observed: 'Legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. In case of a
failure of a State or its instrumentality to give due weight to legitimate expectation of a citizen, it becomes an enforceable right';
Sachindra Kumar v Patna Regional Development Authority AIR 1994 Pat 128, Sachindra Kumar v Patna Regional
Development Authority (1994) 1 Bih LJ 633, Sachindra Kumar v Patna Regional Development Authority (1994) 1 BLJR 324(an
application for allotment of a house plot was made by the petitioner in pursuance of an advertisement by the Patna Regional
Development Authority. While land was allotted by the Authority to several applications who had applied much after the
petitioner, no land was allotted to him. He challenged the action of the authority through a writ petition. The court characterised
the action of the Authority as illegal and irrational. The court also observed: 'the petitioner had a reasonable or legitimate
expectation that the respondent-authority being a State within the meaning of art 12 of the Constitution of India that he would be
allotted a piece of land or a flat in due course; but the authority has failed to act in accordance with its policy decision. It is now
well known that doctrine of legitimate expectation imposes in essence a duty on the public authority to act fairly by taking into
consideration all relevant factors relating to such legitimate expectation).

ADMINISTRATIVE LAW/24. PROPORTIONALITY/[005.304] Meaning
[005.304] Meaning The Principle of proportionality envisages that a public authority must maintain a sense
of proportion between his particular goals and the means he employs to achieve those goals, so that his
action impinges on the individual rights to the minimum extent necessary to preserve the public interest.
Thus, administrative action must bear a reasonable relationship to the general purpose for which the power
has been conferred1.
See Schwartz, 'European Administrative Law', p 680.
The Federal German Constitutional Court has defined the principle of proportionality as follows:
(1) State measures must be suitable for the purpose of facilitating or achieving the pursued objective;
(2) the suitable measures must also be necessary, in the sense that the authority concerned must have no other
mechanism at its disposal; and
(3) the measure must not be disproportionate to the restrictions involved.
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ADMINISTRATIVE LAW/24. PROPORTIONALITY/[005.305] Distinguished from European concept
[005.305] Distinguished from European concept In India, the implication of the principle of proportionality
is that the court will weigh for itself, the advantages and disadvantages of an administrative action. Only if the
balance is advantageous, will the court uphold the administrative action. The principle of proportionality also
envisages that an administrative action could be quashed if it was disproportionate to the mischief at which it
was aimed. Thus, in India, the doctrine makes courts as the primary reviewer of administrative action,
whereas in common law, the courts play the role of a secondary reviewer. Traditionally, in common law, the
courts do not probe into the merits of an administrative action and the review function is entrusted to the
tribunals1.
1 See Schwartz, 'European Administrative Law', p 680.

ADMINISTRATIVE LAW/24. PROPORTIONALITY/[005.306] Applicability in India
[005.306] Applicability in India In India, the principle of proportionality is applied in the limited sense, as an
aspect of the fundamental right to equality before law and equal protection of the laws1. A very restrictive
version of proportionality is applied in the area of punishments awarded by administrative authorities. Thus,
while the quantum of punishment imposed by a disciplinary authority on a civil servant for his misconduct in
service is a matter of discretion of the disciplinary authority2, the punishment, nevertheless, has to be
reasonable because of constitutional constraints3. The court would not interfere with the matter of
punishment on compassionate grounds or because it considers the punishment disproportionate. The court
would interfere only in such extreme cases wherein perversity or irrationality is apparent4. The courts
interfere when the quantum of punishment is shockingly disproportionate5 or when it shocks the conscience
of the court6.
Thus, courts may intervene and reduce punishment imposed by the disciplinary authority in appropriate
cases7.
This principle has also been applied to areas other than punishments awarded to government servants8, for
instance, where administrative action is to be struck down as discriminatory, the courts consider the merits of
the balancing action of the administrator and, in essence, apply the doctrine of proportionality by acting as a
primary reviewing authority9.
Furthermore, in an administrative action affecting fundamental freedoms, proportionality must be applied. In

this area, proportionality of administrative action is to be tested by the courts as a primary reviewing
authority10.
1 E P Royappa v State of Tamil Nadu AIR 1974 SC 555 [LNIND 1973 SC 359] [LNIND 1973 SC 359] [LNIND 1973 SC 359](if
administrative action is arbitrary, it could be struck down under the Constitution of India art 14' arbitrary action by the
administrator is described as one that is irrational and unreasonable). As to the meaning of proportionality see [005.304]. See
also the Constitution of India art 14 (see generally[80]CONSTITUTIONAL LAW).
2 Apparel Export Promotion Council v AK Chopra AIR 1999 SC 625 [LNIND 1999 SC 33] [LNIND 1999 SC 33] [LNIND 1999
SC 33]; BC Chaturvedi v Union of India (1995) 6 SCC 749 [LNIND 1995 SC 1036] [LNIND 1995 SC 1036] [LNIND 1995 SC
1036]; State of Tamil Nadu v A Rajapondian AIR 1995 SC 561 [LNIND 1994 SC 1572] [LNIND 1994 SC 1572] [LNIND 1994
SC 1572].
4 Union of India v R K Sharma AIR 2001 SC 3053 [LNIND 2001 SC 1984] [LNIND 2001 SC 1984] [LNIND 2001 SC 1984](the
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court cannot, while exercising power under arts 32 and 226, interfere with the punishment because the court considers it to be
disproportionate; it is only in extreme cases, which on their face show perversity or irrationality that there can be judicial review;
a court must not interfere merely on compassionate grounds); Om Kumar v Union of India AIR 2000 SC 3689 [LNIND 2000 SC
1585] [LNIND 2000 SC 1585] [LNIND 2000 SC 1585]at 3704 , (where administrative action is questioned as arbitrary under the
Constitution of India art 14, the principle of secondary review applies); Union of India v G Ganayutham AIR 1997 SC 3387
5 Ranjit Thakur v Union of India AIR 1987 SC 2386 [LNIND 1987 SC 964] [LNIND 1987 SC 964] [LNIND 1987 SC 964].
6 BC Chaturvedi v Union of India (1995) 6 SCC 749 [LNIND 1995 SC 1036] [LNIND 1995 SC 1036] [LNIND 1995 SC 1036].
7 Union of India v R K Sharma AIR 2001 SC 3053 [LNIND 2001 SC 1984] [LNIND 2001 SC 1984] [LNIND 2001 SC 1984]; Om
Kumar v Union of India AIR 2000 SC 3689 [LNIND 2000 SC 1585] [LNIND 2000 SC 1585] [LNIND 2000 SC 1585]; Union of
India v G Ganayutham AIR 1997 SC 3387 [LNIND 1997 SC 1123] [LNIND 1997 SC 1123] [LNIND 1997 SC 1123]; VR Katarki v
State of Karnataka AIR 1991 SC 1241 [LNIND 1990 SC 180] [LNIND 1990 SC 180] [LNIND 1990 SC 180](the court refused to
intervene with the punishment imposed as it was disproportionate with the offence); A L Kalra v P & E Corporation of India Ltd
AIR 1984 SC 1361 [LNIND 1984 SC 136] [LNIND 1984 SC 136] [LNIND 1984 SC 136](the appellant was removed from
government service on the ground of misconduct; taking the kind of misconduct in view, the Supreme Court characterised the
punishment of removal from service as arbitrary and quashed the order); Bhagat Ram v State of Himachal Himanchal Pradesh
AIR 1983 SC 454 [LNIND 1983 SC 35] [LNIND 1983 SC 35] [LNIND 1983 SC 35](the penalty imposed must be commensurate
with the gravity of the misconduct and that any penalty disproportionate to the gravity of the misconduct would be violative of
the Constitution of India art 14).
8 Akbar Badruddin v Collector of Customs (1990) 2 SCC 220 (in the instant case, fine imposed on an importer for importing
some banned item was held to be extremely harsh, excessive and unreasonable); Mineral Development Ltd v State of Bihar
AIR 1960 SC 468 [LNIND 1959 SC 224] [LNIND 1959 SC 224] [LNIND 1959 SC 224](the court condemned a government
order cancelling the licence of the petitioner company saying that the contraventions alleged, even if true, appear to be trivial for
the drastic action taken by the State).
9 Om Kumar v Union of India AIR 2000 SC 3689 [LNIND 2000 SC 1585] [LNIND 2000 SC 1585] [LNIND 2000 SC 1585](If,
under the Constitution of India art 14, administrative action is to be struck down as discriminative, proportionality applies and it
is primary review).
10
Om Kumar v Union of India AIR 2000 SC 3689 [LNIND 2000 SC 1585] [LNIND 2000 SC 1585] [LNIND 2000 SC
1585](administrative action in India, affecting fundamental freedoms, has always been tested on the anvil of proportionality in
the last fifty years even though it has not been expressly stated that the principle applied is the principle of proportionality).
See also S Rangarajan v P Jagjivan Ram (1989) 2 SCC 574 [LNIND 1989 SC 196] [LNIND 1989 SC 196] [LNIND 1989 SC
196]; Union of India v Motion Picture Association AIR 1999 SC 2334 [LNIND 1999 SC 1251] [LNIND 1999 SC 1251] [LNIND
1999 SC 1251]; R M Seshadri v District Magistrate AIR 1954 SC 747 [LNIND 1954 SC 121] [LNIND 1954 SC 121] [LNIND
1954 SC 121].

ADMINISTRATIVE LAW/25. GOVERNMENT CONTRACTS/(1) GENERALLY/A. FORMALITIES/[005.307]
Form of contracts
[005.307] Form of contracts All contracts made in the exercise of the executive power of the Union or of a
state must be expressed to be made by the President or by the Governor of the state, as the case may be.
All such contracts and assurances of property made in the exercise of that power must be executed on
behalf of the President or the Governor by such persons and in such manner as he may direct or authorise1.
The provision requiring all government contracts to be made in the name and on the behalf of the Union or
state executive is mandatory and not merely directory in nature. Thus, a contract not couched in the
stipulated form2 cannot be enforced at the instance of any of the contracting parties. The government cannot
be sued and held liable for breach of such a contract and similarly the government cannot enforce such a
contract against the other contracting party3.
There can be no implied contract between the government and another person4.
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The judicial attitude to government contracts has sought to balance two motivations: (1) to protect the
government from unauthorised contracts5; and (2) to safeguard the interests of unsuspecting and unwary
parties who enter into contracts with government officials without fulfilling all the formalities laid down in the
Constitution6. A strict compliance with these conditions may be inequitable to private parties and at the same
time, make government operations extremely difficult and inconvenient in practice. Consequently, depending
upon the facts of each case, the courts may mitigate the rigours of formalities involved and enforce contracts
even when the compliance with the requisite formalities is not full and only substantial7.
A government contract, to be valid, has to be in writing. It does not, however, mean that there must always
be a formal legal document between the government and the other contracting party for the purpose. A valid
contract may emerge through correspondence or through offer and acceptance, if all the conditions8 are
fulfilled9.
A government contract can be entered into on behalf of the government by a person authorised for the
purpose by the President or the Governor, as the case may be. The authority to execute the contract on
behalf of the government may be granted by rules, formal notifications or special orders. The President or
Governor may also give such authority in respect of a particular contract or contracts to an officer other than
the one notified under the rules. Thus, there is no particular mode in which authority may be conferred and it
may be conferred ad hoc on any person10. A contract entered into by an officer not authorised to enter the
same is not valid or binding11.
A contract between the government and a private party, to be enforceable, has to be expressed in the name
of the President or Governor. Though a person authorised by the President or Governor makes a contract, it
will still not be enforceable against the government if it is not expressed to be made on behalf of the
President or Governor12.
The rigours of this rule may be relaxed upon considerations of practical convenience, not only of private
parties entering into agreements with the government but even of the government. Thus, a mere fact that the
signing officer fails to mention that he was signing on behalf of the President, may not be regarded as an
infirmity fatal to the validity of the contract when the contract was expressed to have been made on behalf of
the President13. The court may ignore the technicality if from the correspondence it can reasonably be
inferred that the contract was executed on behalf of the President14.
1 Constitution of India art 299(1) (see generally[80]CONSTITUTIONAL LAW). As to contracts see generally [95]CONTRACT.
2 Ie the form stipulated by the Constitution of India art 299 (see generally[80]CONSTITUTIONAL LAW).
3 Jit Ram Shiv Kumar v State of Haryana AIR 1980 SC 1285 [LNIND 1980 SC 190] [LNIND 1980 SC 190] [LNIND 1980 SC
190]; Mulamchand v State of Madhya Pradesh AIR 1968 SC 1218 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC
48], Mulamchand v State of Madhya Pradesh [1968] 3 SCR 214 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC
48], Mulamchand v State of Madhya Pradesh (1968) SCD 951 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC 48];
Chatturbhuj Vithaldas Jasani v Moreshwar Parashram AIR 1954 SC 236 [LNIND 1954 SC 27] [LNIND 1954 SC 27] [LNIND
1954 SC 27], Chatturbhuj Vithaldas Jasani v Moreshwar Parashram [1954] SCR 817 [LNIND 1954 SC 27] [LNIND 1954 SC 27]
[LNIND 1954 SC 27], Chatturbhuj Vithaldas Jasani v Moreshwar Parashram (1954) SCJ 315 [LNIND 1954 SC 27] [LNIND 1954
SC 27] [LNIND 1954 SC 27]. See also Abdul Rahiman Khan v Sadasiva Tripathi AIR 1969 SC 302 [LNIND 1968 SC 160]
[LNIND 1968 SC 160] [LNIND 1968 SC 160], Abdul Rahiman Khan v Sadasiva Tripathi [1969] 1 SCR 351 [LNIND 1968 SC
160] [LNIND 1968 SC 160] [LNIND 1968 SC 160], Abdul Rahiman Khan v Sadasiva Tripathi (1969) 1 SCJ 335; Konappa
Rudrappa Nadgouda v Vishwanath Reddy AIR 1969 SC 447, Konappa Rudrappa Nadgouda v Vishwanath Reddy [1969] 1 SCR
395, Konappa Rudrappa Nadgouda v Vishwanath Reddy (1969) 2 SCJ 72.
4 KP Chowdhry v State of Madhya Pradesh AIR 1967 SC 203 [LNIND 1966 SC 86] [LNIND 1966 SC 86] [LNIND 1966 SC 86],
KP Chowdhry v State of Madhya Pradesh [1966] 3 SCR 919 [LNIND 1966 SC 86] [LNIND 1966 SC 86] [LNIND 1966 SC 86],
KP Chowdhry v State of Madhya Pradesh (1967) 1 SCJ 119(a person before bidding at an auction, signed a sale notice
agreeing to abide by the terms of the auction; one of the terms was that if the bidder failed to complete the formalities after
acceptance of his bid, his earnest money would be forfeited, the contract would be re-auctioned at his risk and any deficiency
occurring was to be recoverable from him as arrears of land revenue; the question arose whether signing of the sale notice by
the bidder created any contract between the government and the bidder; it was not in full compliance of the Constitution of India
art 299(1); held that there was no contract between the bidder and the government because any implied contracts between
government and another person are ruled out).
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5 State of Punjab v Om Prakash Baldev Krishan AIR 1988 SC 2149 [LNIND 1988 SC 406] [LNIND 1988 SC 406] [LNIND 1988
SC 406](no valid contract between the state government and a tenderer for any work can arise, unless the acceptance letter is
signed in the name of the Governor).
6 Ie the formalities laid down under the Constitution of India art 299 (see generally[80]CONSTITUTIONAL LAW).
7 Union of India v AL Rallia Ram AIR 1963 SC 1685 [LNIND 1963 SC 120] [LNIND 1963 SC 120] [LNIND 1963 SC 120], Union
of India v AL Rallia Ram [1964] 3 SCR 164 [LNIND 1963 SC 120] [LNIND 1963 SC 120] [LNIND 1963 SC 120]; Bhikraj Jaipuria
v Union of India AIR 1962 SC 113 [LNIND 1961 SC 253] [LNIND 1961 SC 253] [LNIND 1961 SC 253], Bhikraj Jaipuria v Union
of India [1962] 2 SCR 880 [LNIND 1961 SC 253] [LNIND 1961 SC 253] [LNIND 1961 SC 253], Bhikraj Jaipuria v Union of India
(1962) 2 SCJ 479 [LNIND 1961 SC 253] [LNIND 1961 SC 253] [LNIND 1961 SC 253]; Chatturbhuj Vithaldas Jasani v
Moreshwar Parashram AIR 1954 SC 236 [LNIND 1954 SC 27] [LNIND 1954 SC 27] [LNIND 1954 SC 27], Chatturbhuj Vithaldas
Jasani v Moreshwar Parashram [1954] SCR 817 [LNIND 1954 SC 27] [LNIND 1954 SC 27] [LNIND 1954 SC 27], Chatturbhuj
Vithaldas Jasani v Moreshwar Parashram (1954) SCJ 315 [LNIND 1954 SC 27] [LNIND 1954 SC 27] [LNIND 1954 SC 27]. See
contra Laliteshwar Prasad Sahi v Bateshwar Prasad AIR 1966 SC 580 [LNIND 1965 SC 249] [LNIND 1965 SC 249] [LNIND
1965 SC 249], Laliteshwar Prasad Sahi v Bateshwar Prasad [1966] 2 SCR 63 [LNIND 1965 SC 249] [LNIND 1965 SC 249]
[LNIND 1965 SC 249], Laliteshwar Prasad Sahi v Bateshwar Prasad (1966) 2 SCJ 241 [LNIND 1965 SC 249] [LNIND 1965 SC
249] [LNIND 1965 SC 249].
8 Ie all the conditions under the Constitution of India art 299 (see generally[80]CONSTITUTIONAL LAW).
9 Union of India v AL Rallia Ram AIR 1963 SC 1685 [LNIND 1963 SC 120] [LNIND 1963 SC 120] [LNIND 1963 SC 120], Union
of India v AL Rallia Ram [1964] 3 SCR 164 [LNIND 1963 SC 120] [LNIND 1963 SC 120] [LNIND 1963 SC 120](the Chief
Director of Purchases, Government of India, invited tenders for purchase of some cigarettes; the respondent's tender was
accepted and the acceptance letter was signed by the Director and it contained an arbitration clause; the Supreme Court held
that the Constitution of India art 299 did not in terms stipulate that only a formal document executed on behalf of the
Government of India with the other contracting party was effective; that in the absence of any direction by the President
prescribing the manner in which a contract is to be executed, a valid contract may result from correspondence between the
parties concerned; a tender for purchase of goods in pursuance of an invitation issued by and acceptance in writing which is
expressed to be made in the name of, the President and executed on his behalf by a person authorised for the purpose would
conform to the requirements of art 299(1)); Bhikraj Jaipuria v Union of India AIR 1962 SC 113 [LNIND 1961 SC 253] [LNIND
1961 SC 253] [LNIND 1961 SC 253], Bhikraj Jaipuria v Union of India [1962] 2 SCR 880 [LNIND 1961 SC 253] [LNIND 1961
SC 253] [LNIND 1961 SC 253], Bhikraj Jaipuria v Union of India (1962) 2 SCJ 479 [LNIND 1961 SC 253] [LNIND 1961 SC 253]
[LNIND 1961 SC 253] (the firm tendered large quantity of foodgrains; the offer was accepted by the Railway Administration; a
scheme to distribute it to railway employees was accepted by the Railway Board; the officers were authorised to take delivery,
transport and distribute it; they fixed programme of inspection, kept wagons for taking delivery, returned empty wagons, entered
into correspondence, accepted bills and railway receipts and made payments of bills; no express authority to execute contracts
had been conferred on the Divisional Superintendent who had issued the purchase orders; nevertheless, the Court inferred
from the facts that he acted under special authority granted to him to enter into the contract for the purchase of foodgrains).
10 State of Bihar v Karam Chand Thapar & Bros Ltd AIR 1962 SC 110 [LNIND 1961 SC 161] [LNIND 1961 SC 161] [LNIND
1961 SC 161], State of Bihar v Karam Chand Thapar & Bros Ltd [1962] 1 SCR 827 [LNIND 1961 SC 161] [LNIND 1961 SC 161]
[LNIND 1961 SC 161], State of Bihar v Karam Chand Thapar & Bros Ltd (1962) 2 SCJ 17.
11 Union of India v NK Pvt Ltd AIR 1972 SC 915 [LNIND 1972 SC 101] [LNIND 1972 SC 101] [LNIND 1972 SC 101], Union of
India v NK Pvt Ltd (1973) 3 SCC 388 [LNIND 1972 SC 101] [LNIND 1972 SC 101] [LNIND 1972 SC 101], Union of India v NK
Pvt Ltd [1972] 3 SCR 437 [LNIND 1972 SC 101] [LNIND 1972 SC 101] [LNIND 1972 SC 101] (the respondent company made
an offer to purchase surplus rails from the Railway Board; the letter accepting the offer was written by the Secretary to the
Railway Board; the Supreme Court ruled that no binding or concluded contract came into effect because the only person
authorised to enter into a contract for the sale of the rails was the Director of Stores and the Secretary was not authorised to
enter into the contract on behalf of the President of India). See also M Mohammed v Union of India AIR 1982 Bom 443 (a view
has been expressed that a contract not complying with the requirements of the Constitution of India art 299 is only relatively
void and not void for all purposes; it means that while the contract is not enforceable by the parties thereto, it can still subsist for
some collateral purposes).
12 Karamshi Jethabhai Somayya v State of Bombay AIR 1964 SC 1714 [LNIND 1964 SC 55] [LNIND 1964 SC 55] [LNIND
1964 SC 55], Karamshi Jethabhai Somayya v State of Bombay [1964] 6 SCR 984 [LNIND 1964 SC 55] [LNIND 1964 SC 55]
[LNIND 1964 SC 55] (there was an agreement for the supply of canal water for the irrigation of a cane farm entered into by
letters; however, no formal contract in the name of the Governor was executed; after supplying water for sometime, the supply
was stopped by the government; the Court found from documentary evidence that though an agreement had been reached
between the government and the party concerned, yet it could not be enforced because no formal document was executed in
the name of the Governor and it was also not clear whether the Superintendent Engineer who had entered into the agreement
was legally authorised to do so; the letters in question mentioned the names of the Minister of Public Works Department as well
as the government but these letters did not purport to emanate from the Governor); Bhikraj Jaipuria v Union of India AIR 1962
SC 113 [LNIND 1961 SC 253] [LNIND 1961 SC 253] [LNIND 1961 SC 253], Bhikraj Jaipuria v Union of India [1962] 2 SCR 880
[LNIND 1961 SC 253] [LNIND 1961 SC 253] [LNIND 1961 SC 253], Bhikraj Jaipuria v Union of India (1962) 2 SCJ 479 [LNIND
1961 SC 253] [LNIND 1961 SC 253] [LNIND 1961 SC 253] (no formal contracts were executed for the supply of foodgrains by
the appellant; he had merely offered to supply foodgrains by letters sent to the Divisional Superintendent, East India Railway
and he had accepted those offers through purchase orders; these purchase orders were not expressed to be made in the name
of the Governor General, nor were they executed on behalf of the Governor General, but were signed by the Divisional
457
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Superintendent himself; the Court ruled that the resultant contracts were unenforceable; the appellant was held not entitled to
claim compensation for the foodgrains supplied by him as the contract was not in the proper form). See also Ghosh Singh
Partners Ltd v Union of India AIR 1959 Cal 287 [LNIND 1958 CAL 94] [LNIND 1958 CAL 94] [LNIND 1958 CAL 94](criticism of
the rule on account of a single defect in the form)
13 Union of India v AL Rallia Ram AIR 1963 SC 1685 [LNIND 1963 SC 120] [LNIND 1963 SC 120] [LNIND 1963 SC 120],
Union of India v AL Rallia Ram [1964] 3 SCR 164 [LNIND 1963 SC 120] [LNIND 1963 SC 120] [LNIND 1963 SC 120].
14 Davecos Garments Factory v State of Rajasthan AIR 1971 SC 141, Davecos Garments Factory v State of Rajasthan (1970)
3 SCC 874.

Award of contracts
[005.308] Award of contracts Prior to 1979, the government enjoyed contractual freedom. when one
person was chosen rather than another, the aggrieved party could not claim the protection because the
choice of the person to fulfil a particular contract was entirely the governments' decision. Also, a government
contract stood on no different footing than a private party1. It was open to the government even as it is to a
private party to choose a person to their liking to fulfil a contract that they wished to perform2.
Presently the view is that the government must not be as free as an individual in the matter of entering into
contracts.
The executive power of a government to award contracts must not be arbitrary or discriminatory3.
The power or discretion of the government in the matter of grant of largess including award of jobs,
contracts, quotas, licences and the like, must be confined and structured by rational, relevant and
non-discriminatory standards or norms and if the government departs from such standards or norms in any
particular case or cases, the action of the government would be liable to be struck down4, unless it can be
shown by the government that the departure was not arbitrary but was based on some valid principle which
in itself was not irrational, unreasonable or discriminatory5.
In contractual sphere, as in all other State actions there is no unfettered discretion in public law. A public
authority possesses powers only to use them for public good. This imposes the duly to act fairly and to adopt
a procedure which is fairplay in action6.
Ordinarily, the contract must be awarded after inviting tenders7. A writ court can interfere if the lowest tender
is illegally rejected8. The rule that the contract must be awarded to the lowest tenderer applies when all
things are equal. If the lowest tenderer does not satisfy the prescribed conditions the contract cannot be
awarded to him9.
Award of a contract may be quashed if the concerned authority exercises power arbitrarily10. Award of a
contract may be quashed on such grounds as, mala fides, corruption, favouritism, discrimination,
arbitrariness, unfairness, illegality, irrationality, improper motives or non-application of mind on the part of the
concerned authority. when award or terms of the contract are arbitrary or unreasonable11 or the contract is
awarded without any publicity, it may be quashed12. Similarly, award of a contract may be quashed if the
concerned authority takes into account irrelevant considerations13 or if the contract is awarded accepting a
tender at a higher rate against the interest of revence14 or if the contract is awarded to one who does not
fulfil the prescribed eligibility conditions15. A writ may be issued to quash the award of a contract by the
government or any of its authority if the contract is entered into for a collateral purpose or if there is
discrimination or unreasonableness16.
However, in some special circumstances, the Court may uphold award of a contract without inviting tenders
for the same17. A contract reached through negotiation between the State and a company to set up as a joint
458
Page 55
venture a multi super speciality hospital to give medical aid to government employees on a no profit no loss
basis and give free medical aid to poor people may be valid even if no tenders are invited for the same18. So
long as the State action is bona fide and reasonable, court may not interfere merely on the ground that no
advertisement was given or publicity made or tenders invited. Similarly, the State can negotiate with a party
to set up an industry in the state19.
1 C K Achutan v State of Kerala AIR 1959 SC 490 [LNIND 1958 SC 161] [LNIND 1958 SC 161] [LNIND 1958 SC 161], C K
Achutan v State of Kerala (1959) SCJ 465 [LNIND 1958 SC 161] [LNIND 1958 SC 161] [LNIND 1958 SC 161], C K Achutan v
State of Kerala (1960) 1 SCA 33.
2 General Electrical and Engineering Co, Trichur v The Chief Engineer AIR 1974 Ker 23 [LNIND 1972 KER 103] [LNIND 1972
KER 103] [LNIND 1972 KER 103], General Electrical and Engineering Co, Trichur v The Chief Engineer (1973) Ker LT 321.
3 Ramana Dayaram Shetty v International Authority of India AIR 1979 SC 1628 [LNIND 1979 SC 275] [LNIND 1979 SC 275]
[LNIND 1979 SC 275], Ramana Dayaram Shetty v International Authority of India (1979) 3 SCC 489 [LNIND 1979 SC 275]
[LNIND 1979 SC 275] [LNIND 1979 SC 275], Ramana Dayaram Shetty v International Authority of India [1979] 3 SCR 1014
4 Kasturilal Lakshmi Reddy v State of Jammu & Kashmir AIR 1980 SC 1992 [LNIND 1980 SC 250] [LNIND 1980 SC 250]
[LNIND 1980 SC 250], Kasturilal Lakshmi Reddy v State of Jammu & Kashmir (1980) 4 SCC 1 [LNIND 1980 SC 250] [LNIND
1980 SC 250] [LNIND 1980 SC 250], Kasturilal Lakshmi Reddy v State of Jammu & Kashmir [1980] 3 SCR 1338 [LNIND 1980
SC 250] [LNIND 1980 SC 250] [LNIND 1980 SC 250]; Premium Granites v State of Tamil Nadu (1994) 2 SCC 691 [LNIND
1994 SC 1219] [LNIND 1994 SC 1219] [LNIND 1994 SC 1219], Premium Granites v State of Tamil Nadu (1994) 2 SCC 691
[LNIND 1994 SC 1219] [LNIND 1994 SC 1219] [LNIND 1994 SC 1219], Premium Granites v State of Tamil Nadu (1994) 1 JT
376; Erusian Equipment and Chemicals Ltd v State of West Bengal AIR 1975 SC 266 [LNIND 1974 SC 357] [LNIND 1974 SC
357] [LNIND 1974 SC 357], Erusian Equipment and Chemicals Ltd v State of West Bengal (1975) 1 SCC 70 [LNIND 1974 SC
357] [LNIND 1974 SC 357] [LNIND 1974 SC 357], Erusian Equipment and Chemicals Ltd v State of West Bengal (1975) 1 All
LR 22. See also Raunaq International Ltd v IVR Construction Ltd AIR 1999 SC 393 [LNIND 1998 SC 1235] [LNIND 1998 SC
1235] [LNIND 1998 SC 1235], Raunaq International Ltd v IVR Construction Ltd (1999) 1 SCC 492 [LNIND 1998 SC 1235]
[LNIND 1998 SC 1235] [LNIND 1998 SC 1235], Raunaq International Ltd v IVR Construction Ltd (1998) 8 JT 411; Sukhdev
Singh v Bhagatram Sardar Singh Raghuvanshi AIR 1975 SC 1331 [LNIND 1975 SC 79] [LNIND 1975 SC 79] [LNIND 1975 SC
79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi (1975) 1 SCC 421 [LNIND 1975 SC 79] [LNIND 1975 SC 79]
[LNIND 1975 SC 79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi [1975] 2 SCR 619.
(1994) 6 SCC 651 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India (1994) 4 JT 532(the principle laid
down in the Constitution of India art 14 has to be kept in view while accepting or refusing a tender); Union of India v Hindustan
Development Corpn AIR 1994 SC 988 [LNIND 1993 SC 1080] [LNIND 1993 SC 1080] [LNIND 1993 SC 1080], Union of India v
Hindustan Development Corpn (1994) 3 SCC 499, Union of India v Hindustan Development Corpn (1994) 3 SCJ 348; Food
Corporation of India v Kamdhenu Cattle Feed Industries AIR 1993 SC 1601 [LNIND 1992 SC 794] [LNIND 1992 SC 794]
[LNIND 1992 SC 794], Food Corporation of India v Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 [LNIND 1992 SC 794]
[LNIND 1992 SC 794] [LNIND 1992 SC 794], Food Corporation of India v Kamdhenu Cattle Feed Industries [1992] Supp 2 SCR
322; Mahabir Auto Stores v Indian Oil Corporation AIR 1990 SC 1031 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND
1990 SC 135], Mahabir Auto Stores v Indian Oil Corporation (1990) 3 SCC 752 [LNIND 1990 SC 135] [LNIND 1990 SC 135]
[LNIND 1990 SC 135], Mahabir Auto Stores v Indian Oil Corporation [1990] 1 SCR 818 [LNIND 1990 SC 135] [LNIND 1990 SC
135] [LNIND 1990 SC 135] at 1037 (the rule of reason and rule against arbitrariness and discrimination, rules of fair play and
natural justice are part of the rule of law, applicable in a situation or action by a State instrumentality; even though the rights of
the citizens are in the nature of contractual rights, the manner, the method and motive of a decision of entering or not entering
into a contract, are subject to judicial review on the touchstone of relevance and reasonable non discrimination); Parashrem
Thakur Dass v Ram Chand AIR 1982 SC 872 [LNIND 1982 SC 48] [LNIND 1982 SC 48] [LNIND 1982 SC 48], Parashrem
Thakur Dass v Ram Chand (1982) 1 SCC 627 [LNIND 1982 SC 48] [LNIND 1982 SC 48] [LNIND 1982 SC 48], Parashrem
Thakur Dass v Ram Chand [1882] 3 SCR 288; Om Prakash Sud v State of Jammu & Kashmir AIR 1981 SC 1001 [LNIND 1981
SC 82] [LNIND 1981 SC 82] [LNIND 1981 SC 82], Om Prakash Sud v State of Jammu & Kashmir (1981) 2 SCC 270 [LNIND
1981 SC 82] [LNIND 1981 SC 82] [LNIND 1981 SC 82], Om Prakash Sud v State of Jammu & Kashmir [1981] 2 SCR 841
[LNIND 1981 SC 82] [LNIND 1981 SC 82] [LNIND 1981 SC 82]; Kasturilal Lakshmi Reddy v The State of Jammu & Kashmir
AIR 1980 SC 1992 [LNIND 1980 SC 250] [LNIND 1980 SC 250] [LNIND 1980 SC 250], Kasturilal Lakshmi Reddy v The State of
Jammu & Kashmir (1980) 4 SCC 1 [LNIND 1980 SC 250] [LNIND 1980 SC 250] [LNIND 1980 SC 250], Kasturilal Lakshmi
Reddy v The State of Jammu & Kashmir [1980] 3 SCR 1338 [LNIND 1980 SC 250] [LNIND 1980 SC 250] [LNIND 1980 SC
250](if the government awards a contract, or leases out or otherwise deals with its property, or grants any other largess, its
action would be liable to be tested for its validity on the touchstone of reasonableness and public interest and if it fails to satisfy
either test, it would be unconstitutional and invalid; the Constitution of India art 14 strikes at arbitrariness in State action and
since the principle of reasonableness and rationality, which is legally as well as philosophically an essential element of equality
or non arbitrariness, is projected by art 14, it must characterise every governmental action, whether it be under the authority of
law or in exercise of executive power without making the law); Ramana Dayaram Shetty v International Authority of India AIR
1979 SC 1628 [LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275], Ramana Dayaram Shetty v International
Authority of India (1979) 3 SCC 489 [LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275], Ramana Dayaram
459
Page 56
Shetty v International Authority of India [1979] 3 SCR 1014 [LNIND 1979 SC 275] [LNIND 1979 SC 275] [LNIND 1979 SC 275];
Lalzawmliana v Mizoram AIR 2001 Gau 23 [LNIND 2000 GAU 175] [LNIND 2000 GAU 175] [LNIND 2000 GAU 175],
Lalzawmliana v Mizoram (2001) 3 Arb LR 149, Lalzawmliana v Mizoram (2001) 1 Gau LR 110 (the government has a right to
either accept or reject the lowest offer but that must be on some rational and reasonable grounds).
6 Food Corporation of India v Kamdhenu Cattle Feed Industries AIR 1993 SC 1601 [LNIND 1992 SC 794] [LNIND 1992 SC
794] [LNIND 1992 SC 794], Food Corporation of India v Kamdhenu Cattle Feed Industries (1993) 1 SCC 71 [LNIND 1992 SC
794] [LNIND 1992 SC 794] [LNIND 1992 SC 794], Food Corporation of India v Kamdhenu Cattle Feed Industries [1992] Supp 2
SCR 322.
7 Sterling Computers Ltd v M & N Publications Ltd AIR 1996 SC 51; V Sivakumar v State of Kerala AIR 1999 Ker 49, V
Sivakumar v State of Kerala (1999) ILR 1 Ker 438 (ordinarily, a contract must be awarded after inviting tenders for the purpose;
this provides an opportunity to all those who may be interested in securing the contract to offer their bids for the purpose; award
of a contract to an individual without inviting tenders is invalid as it amounts to pick and choose which violates the Constitution
of India art 14).
(1994) 6 SCC 651 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India (1994) 4 JT 532; Prestress India
Corpn v Uttar Pradesh State Electricity Board AIR 1988 SC 2035, Prestress India Corpn v Uttar Pradesh State Electricity Board
(1988) Supp SCC 716, Prestress India Corpn v Uttar Pradesh State Electricity Board (1988) 3 JT 428; Harminder Singh v
Union of India AIR 1986 SC 1527 [LNIND 1986 SC 190] [LNIND 1986 SC 190] [LNIND 1986 SC 190], Harminder Singh v Union
of India (1986) 3 SCC 247 [LNIND 1986 SC 190] [LNIND 1986 SC 190] [LNIND 1986 SC 190], Harminder Singh v Union of
India [1986] 3 SCR 63 [LNIND 1986 SC 190] [LNIND 1986 SC 190] [LNIND 1986 SC 190]; Alok Prasad Verma v Union of India
AIR 2001 Pat 211, Alok Prasad Verma v Union of India (2001) 1 BLJ 262, Alok Prasad Verma v Union of India (2000) 3 BLJR
1913; Y Konda Reddy v State of Andhra Pradesh AIR 1997 AP 121 [LNIND 1996 AP 1084] [LNIND 1996 AP 1084] [LNIND
1996 AP 1084], Y Konda Reddy v State of Andhra Pradesh (1997) 1 Andh WR 369; Pritam Singh Gill v State of Punjab AIR
1982 P & H 228, Pritam Singh Gill v State of Punjab (1982) 2 Lab LJ 305, Pritam Singh Gill v State of Punjab (1984) 1 Comp LJ
146.
9 West Bengal Electricity Board v Patel Engineering Co Ltd AIR 2001 SC 682 [LNIND 2001 SC 136] [LNIND 2001 SC 136]
[LNIND 2001 SC 136], West Bengal Electricity Board v Patel Engineering Co Ltd (2001) 2 SCC 451 [LNIND 2001 SC 136]
[LNIND 2001 SC 136] [LNIND 2001 SC 136], West Bengal Electricity Board v Patel Engineering Co Ltd (2001) 2 JT 524 [LNIND
10 Raunaq International Ltd v IVR Construction Ltd AIR 1999 SC 393 [LNIND 1998 SC 1235] [LNIND 1998 SC 1235] [LNIND
1998 SC 1235], Raunaq International Ltd v IVR Construction Ltd (1999) 1 SCC 492 [LNIND 1998 SC 1235] [LNIND 1998 SC
1235] [LNIND 1998 SC 1235], Raunaq International Ltd v IVR Construction Ltd (1998) 8 JT 411; Tata Cellular v Union of India
AIR 1996 SC 11 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India (1994) 6 SCC 651 [LNIND 1994
SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India (1994) 4 JT 532; Delhi Science Forum v Union of India AIR 1996
SC 1356 [LNIND 1996 SC 421] [LNIND 1996 SC 421] [LNIND 1996 SC 421], Delhi Science Forum v Union of India (1996) 2
SCC 405 [LNIND 1996 SC 421] [LNIND 1996 SC 421] [LNIND 1996 SC 421], Delhi Science Forum v Union of India (1996) 2 JT
295; New Horizons Ltd v Union of India (1995) 1 SCC 478 [LNIND 1994 SC 1033] [LNIND 1994 SC 1033] [LNIND 1994 SC
1033]; Union of India v Hindustan Development Corpn AIR 1994 SC 988 [LNIND 1993 SC 1080] [LNIND 1993 SC 1080]
[LNIND 1993 SC 1080], Union of India v Hindustan Development Corpn (1994) 3 SCC 499, Union of India v Hindustan
Development Corpn (1994) 3 SCJ 348. See also Asia Foundation and Construction Ltd v Trafalgar House Construction (I) Ltd
(1997) 1 SCC 738 [LNIND 1996 SC 2161] [LNIND 1996 SC 2161] [LNIND 1996 SC 2161], Asia Foundation and Construction
Ltd v Trafalgar House Construction (I) Ltd (1997) 1 JT 309, Asia Foundation and Construction Ltd v Trafalgar House
Construction (I) Ltd (1996) 9 Scale 428.
11 Centre for Public Interest Litigation v Union of India AIR 2001 SC 80 [LNIND 2000 SC 1367] [LNIND 2000 SC 1367] [LNIND
2000 SC 1367], Centre for Public Interest Litigation v Union of India (2001) 8 SCC 606, Centre for Public Interest Litigation v
Union of India (2001) 2 JT Supp 277; Common Cause, a Registered Society v Union of Indian AIR 1999 SC 2979 [LNIND 1999
SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC 637], Common Cause, a Registered Society v Union of Indian (1999) 6 SCC
667 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC 637], Common Cause, a Registered Society v Union of
Indian (1999) 5 JT 237; G J Fernandez v State of Karnataka AIR 1990 SC 958 [LNIND 1990 SC 55] [LNIND 1990 SC 55]
[LNIND 1990 SC 55], G J Fernandez v State of Karnataka (1990) 2 SCC 488 [LNIND 1990 SC 55] [LNIND 1990 SC 55] [LNIND
1990 SC 55], G J Fernandez v State of Karnataka [1990] 1 SCR 229 [LNIND 1990 SC 55] [LNIND 1990 SC 55] [LNIND 1990
SC 55].
12 MI Builders Pvt Ltd v Radhey Shyam Sahu AIR 1999 SC 2468 [LNIND 1999 SC 612] [LNIND 1999 SC 612] [LNIND 1999
SC 612], MI Builders Pvt Ltd v Radhey Shyam Sahu (1999) 5 Scale 155, MI Builders Pvt Ltd v Radhey Shyam Sahu (1999) 8
SLT 497.
13 Sterling Computers Ltd v M and N Publications Ltd AIR 1996 SC 51.
14 Dutta Associates Pvt Ltd v Indo Mercantiles Pvt Ltd (1997) 1 SCC 53 [LNIND 1996 SC 1894] [LNIND 1996 SC 1894]
[LNIND 1996 SC 1894], Dutta Associates Pvt Ltd v Indo Mercantiles Pvt Ltd (1996) 10 JT 419, Dutta Associates Pvt Ltd v Indo
Mercantiles Pvt Ltd (1996) 8 Scale 422; PSC Engineers Pvt Ltd v State of Tripura AIR 2000 Gau 198 [LNIND 2000 GAU 162]
[LNIND 2000 GAU 162] [LNIND 2000 GAU 162], PSC Engineers Pvt Ltd v State of Tripura (2000) 3 Gau LR 305.
15 Chaitanya Kumar v State of Karnataka AIR 1986 SC 825 [LNIND 1986 SC 115] [LNIND 1986 SC 115] [LNIND 1986 SC
460
Page 57
115], Chaitanya Kumar v State of Karnataka (1986) 2 SCC 594 [LNIND 1986 SC 115] [LNIND 1986 SC 115] [LNIND 1986 SC
115], Chaitanya Kumar v State of Karnataka (1986) 2 SCJ 301 (the award of the contract was quashed by the Supreme Court;
it characterised the award of the contract to ineligible persons in preference to eligible persons as an unusual, wilful and
perverse way of exercising the power of distributing state largess; it was argued on behalf of the State that no loss would be
caused to the State exchequer by the award of the contract; rejecting the argument, the Court pointed out that even if the award
of the contract was not at the expense of the exchequer, there could be no question that what was done was the distribution by
the State of favours loaded with bounty by way of enabling the recipients of the favours to earn enormous profits).
16 Monarch Infrastructure (P) Ltd v Comr, Ulhasnagar Municipal Corpn AIR 2000 SC 2272 [LNIND 2000 SC 858] [LNIND 2000
SC 858] [LNIND 2000 SC 858], Monarch Infrastructure (P) Ltd v Comr, Ulhasnagar Municipal Corpn (2000) 5 SCC 287 [LNIND
2000 SC 858] [LNIND 2000 SC 858] [LNIND 2000 SC 858], Monarch Infrastructure (P) Ltd v Comr, Ulhasnagar Municipal
Corpn (2000) 6 JT 491 (when a term of the tender is changed after the parties have filed their offers in response thereto, it
amounts to changing the rules of the game after it has begun; the only way out is to begin a fresh process of inviting tender all
over again); Raunaq International Ltd v IVR Construction Ltd AIR 1999 SC 393 [LNIND 1998 SC 1235] [LNIND 1998 SC 1235]
[LNIND 1998 SC 1235], Raunaq International Ltd v IVR Construction Ltd (1999) 1 SCC 492 [LNIND 1998 SC 1235] [LNIND
1998 SC 1235] [LNIND 1998 SC 1235], Raunaq International Ltd v IVR Construction Ltd (1998) 8 JT 411; MI Builders Pvt Ltd v
Radhey Shyam Sahu AIR 1999 SC 2468 [LNIND 1999 SC 612] [LNIND 1999 SC 612] [LNIND 1999 SC 612], MI Builders Pvt
Ltd v Radhey Shyam Sahu (1999) 5 Scale 155, MI Builders Pvt Ltd v Radhey Shyam Sahu (1999) 8 SLT 497 (a contract
entered into between the Lucknow Municipal Corporation and a builder to build an underground commercial complex in
municipal park was quashed by the Supreme Court; the Court characterised the contract in question as being against the law
and the master plan; the court declared that the contract was entered into by the corporation without calling tenders; that the
contract was wholly unreasonable and one sided favouring the builder; that the general rule to dispose of public property is to
invite tenders); Tata Cellular v Union of India AIR 1996 SC 11 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v
Union of India (1994) 6 SCC 651 [LNIND 1994 SC 665] [LNIND 1994 SC 665], Tata Cellular v Union of India (1996) 1 Bank
CLR 1 (Government of India invited tenders from Indian companies with a view to license cellular mobile telephone service in
Delhi, Bombay, Calcutta and Madras; the names of successful bidders were notified; this selection was challenged on several
grounds, such as, bias, invoking hidden criteria, irrelevant considerations etc; the Supreme Court quashed the selection of the
two companies on the grounds of arbitrariness and violation of natural justice insofar as Tata Cellular was first selected and was
then left out without being heard); Union of India v M/S Graphic Industries Ltd (1994) 5 SCC 398 (even in contractual matters
public authorities have to act fairly). See also Asia Foundation and Construction Ltd v Trafalgar House Construction (I) Ltd
(1997) 1 SCC 738 [LNIND 1996 SC 2161] [LNIND 1996 SC 2161] [LNIND 1996 SC 2161], Asia Foundation and Construction
Ltd v Trafalgar House Construction (I) Ltd (1997) 1 JT 309, Asia Foundation and Construction Ltd v Trafalgar House
Construction (I) Ltd (1996) 9 Scale 428.
17 Kasturilal Lakshmi Reddy v The State of Jammu & Kashmir AIR 1980 SC 1992 [LNIND 1980 SC 250] [LNIND 1980 SC 250]
[LNIND 1980 SC 250], Kasturilal Lakshmi Reddy v The State of Jammu & Kashmir (1980) 4 SCC 1 [LNIND 1980 SC 250]
[LNIND 1980 SC 250] [LNIND 1980 SC 250], Kasturilal Lakshmi Reddy v The State of Jammu & Kashmir [1980] 3 SCR 1338
[LNIND 1980 SC 250] [LNIND 1980 SC 250] [LNIND 1980 SC 250]; State of Madhya Pradesh v Nandlal Jaiswal AIR 1987 SC
251 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400], State of Madhya Pradesh v Nandlal Jaiswal (1986) 4
SCC 566 [LNIND 1986 SC 400] [LNIND 1986 SC 400] [LNIND 1986 SC 400], State of Madhya Pradesh v Nandlal Jaiswal
18 Tej Singh Sarupriya v Rajsathan State Mines and Minerals Ltd AIR 2001 Raj 225, Tej Singh Sarupriya v Rajsathan State
Mines and Minerals Ltd (2001) 1 Raj LR 239, Tej Singh Sarupriya v Rajsathan State Mines and Minerals Ltd (2000) 4 WLC 423.
19 Kasturilal Lakshmi Reddy v The State of Jammu & Kashmir AIR 1980 SC 1992 [LNIND 1980 SC 250] [LNIND 1980 SC 250]
[LNIND 1980 SC 250], Kasturilal Lakshmi Reddy v The State of Jammu & Kashmir (1980) 4 SCC 1 [LNIND 1980 SC 250]
[LNIND 1980 SC 250] [LNIND 1980 SC 250], Kasturilal Lakshmi Reddy v The State of Jammu & Kashmir [1980] 3 SCR 1338

Contractual liability
[005.309] Contractual liability The President or a Governor is not personally liable in respect of any
contract or assurance made or executed for the purposes of the Constitution or for the purposes of any
enactment relating to the Government of India in force. Similarly, any person making or executing any such
contract or assurance on behalf of the President or a Governor would not be personally liable in respect of
such contracts1.
The immunity against personal liability is purely personal and does not immunise the government from a
contractual liability arising under a government contract2.
461
Page 58
Earlier, when a contract was not in proper form, the exemption from liability did not apply to the officer
executing the contract and it could be enforced against him personally under the Indian Contract Act 18723.
However, presently the position is just the opposite3.
The liability of the government is almost the same as that of a private person, subject to any statutory
provision to the contrary4.
In order to protect innocent parties, the courts have held that if government derives any benefit under an
agreement not fulfilling the requisites5, the Government may be held liable to compensate the other
contracting party6, on the basis of a quasi contractual liability, to the extent of the benefit received. If this
equitable doctrine of restitution is not followed, it may lead to extremely unreasonable consequences and
may even hamper the working of the government7.
A person may be sued for the dues if he has obtained any benefit under a government contract even if the
contract did not conform to all the requisite formalities8. If the government has made any payments under a
void contract, it can recover the same9.
1 State of Bihar v Rani Sonabati Kumari AIR 1954 Pat 513.
2 Ie under the Indian Contract Act 1872 s 230 (see CONTRACT[95.177]). Chatturbhuj Vithaldas Jasani v Moreshwar
Parashram AIR 1954 SC 236 [LNIND 1954 SC 27] [LNIND 1954 SC 27] [LNIND 1954 SC 27], Chatturbhuj Vithaldas Jasani v
Moreshwar Parashram [1954] SCR 817 [LNIND 1954 SC 27] [LNIND 1954 SC 27] [LNIND 1954 SC 27], Chatturbhuj Vithaldas
Jasani v Moreshwar Parashram (1954) SCJ 315 [LNIND 1954 SC 27] [LNIND 1954 SC 27] [LNIND 1954 SC 27].
3 Ie now a contract entered into without complying with the Constitution of India art 299(1) is void. There is no contract in the
eyes of law and so the Indian Contract Act 1872 s 230(3) is inapplicable. See State of Uttar Pradesh v Murari Lal & Bros Ltd
AIR 1971 SC 2210 [LNIND 1971 SC 344] [LNIND 1971 SC 344] [LNIND 1971 SC 344], State of Uttar Pradesh v Murari Lal &
Bros Ltd (1971) 2 SCC 449 [LNIND 1971 SC 344] [LNIND 1971 SC 344] [LNIND 1971 SC 344], State of Uttar Pradesh v Murari
Lal & Bros Ltd [1972] 1 SCR 1 [LNIND 1971 SC 344] [LNIND 1971 SC 344] [LNIND 1971 SC 344].
4 State of Bihar v Abdul Majid AIR 1954 SC 245 [LNIND 1954 SC 23] [LNIND 1954 SC 23] [LNIND 1954 SC 23], State of Bihar
v Abdul Majid [1954] SCR 786 [LNIND 1954 SC 23] [LNIND 1954 SC 23] [LNIND 1954 SC 23], State of Bihar v Abdul Majid
5 Ie requisites as stated under the Constitution of India art 299 (see generally[80]CONSTITUTIONAL LAW).
6 See the Indian Contract Act 1872 s 70 (see CONTRACT[95.130]).
State of West Bengal v BK Mondal & Sons AIR 1962 SC 779 [LNIND 1961 SC 377] [LNIND 1961 SC 377] [LNIND 1961 SC
377], State of West Bengal v BK Mondal & Sons [1962] Supp 1 SCR 876, State of West Bengal v BK Mondal & Sons (1962) 2
SCA 375 [LNIND 1961 SC 377] [LNIND 1961 SC 377] [LNIND 1961 SC 377](a contractor constructed a building at the request
of an official who had accepted his tender; the building was constructed and accepted by the government but the contractor was
not paid; the government argued that the request in pursuance of which the building was constructed was unauthorised and so
there was no privity of contract between the contractor and the government; there was no contract fulfilling the requisites of the
Constitution of India art 299(1) and enforceable as such; the Supreme Court held that though the contract was unenforceable
as it did not fulfil the requisites of art 299(1), yet the State was still liable to pay under the Indian Contract Act 1872 s 70 on a
quasi contract for the work done by the contractor and accepted by the government); Mulamchand v State of Madhya Pradesh
AIR 1968 SC 1218 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC 48], Mulamchand v State of Madhya Pradesh
[1968] 3 SCR 214 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC 48], Mulamchand v State of Madhya Pradesh
(1968) SCD 951 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC 48]; New Marine Coal Co (Bengal) Pvt Ltd v
Union of India AIR 1964 SC 152 [LNIND 1963 SC 96] [LNIND 1963 SC 96] [LNIND 1963 SC 96], New Marine Coal Co (Bengal)
Pvt Ltd v Union of India [1964] 2 SCR 859 [LNIND 1963 SC 96] [LNIND 1963 SC 96] [LNIND 1963 SC 96], New Marine Coal Co
(Bengal) Pvt Ltd v Union of India (1964) 1 SCA 491.
The Indian Contract Act 1872 s 70 lays down the following three conditions for restitution, namely:
(1) the person must lawfully do something for another person or deliver something to him;
(2) in doing so, he must not intend to act gratuitously; and
(3) the other person for whom something is done or to whom something is delivered, must enjoy the benefit
thereof.
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8 Ie sued under the Indian Contract Act 1872 s 70 (see contract [95.130]). State of Orissa v Rajbaldav AIR 1976 Ori 79 [LNIND
1975 ORI 48] [LNIND 1975 ORI 48] [LNIND 1975 ORI 48].
9 Ie recover under the Indian Contract Act 1872 s 65 (see contract [95.125]). Union of India v Sita Ram Jaiswal AIR 1977 SC
329 [LNIND 1976 SC 397] [LNIND 1976 SC 397] [LNIND 1976 SC 397], Union of India v Sita Ram Jaiswal (1976) 4 SCC 505
[LNIND 1976 SC 397] [LNIND 1976 SC 397] [LNIND 1976 SC 397], Union of India v Sita Ram Jaiswal [1977] 1 SCR 979
[LNIND 1976 SC 397] [LNIND 1976 SC 397] [LNIND 1976 SC 397]; Pannalal v Deputy Commissione, Bhandara AIR 1973 SC
1174, Pannalal v Deputy Commissione, Bhandara (1973) 1 SCC 639, Pannalal v Deputy Commissione, Bhandara (1973) UJ
546.

Ratification
[005.310] Ratification Before 1968, though the government could not be sued in respect of informal
contracts, it could accept responsibility for them by ratifying them1. A contract not conforming to all the
required formalities2 was not void in the technical sense and that it could still be ratified3.
When an unauthorised person entered into a contract, the government could ratify it, especially when the
contract was for its benefit4.
Presently, the position is that a contract that does not conform to all the required formalities5 is void and that
no question of ratification of such a contract could arise6.
1 Laliteshwar Prasad Sahi v Bateshwar Prasad AIR 1966 SC 580 [LNIND 1965 SC 249] [LNIND 1965 SC 249] [LNIND 1965
SC 249], Laliteshwar Prasad Sahi v Bateshwar Prasad [1966] 2 SCR 63 [LNIND 1965 SC 249] [LNIND 1965 SC 249] [LNIND
1965 SC 249], Laliteshwar Prasad Sahi v Bateshwar Prasad (1966) 2 SCJ 241 [LNIND 1965 SC 249] [LNIND 1965 SC 249]
[LNIND 1965 SC 249]; Chatturbhuj Vithaldas Jasani v Moreshwar Parashram AIR 1954 SC 236 [LNIND 1954 SC 27] [LNIND
1954 SC 27] [LNIND 1954 SC 27], Chatturbhuj Vithaldas Jasani v Moreshwar Parashram [1954] SCR 817 [LNIND 1954 SC 27]
[LNIND 1954 SC 27] [LNIND 1954 SC 27], Chatturbhuj Vithaldas Jasani v Moreshwar Parashram (1954) SCJ 315 [LNIND 1954
SC 27] [LNIND 1954 SC 27] [LNIND 1954 SC 27]; N Purkayastha v Union of India AIR 1955 Assam 33.
2 As to formalities involved in a government contract see [005.307] and following.
3 State of West Bengal v BK Mondal & Sons AIR 1962 SC 779 [LNIND 1961 SC 377] [LNIND 1961 SC 377] [LNIND 1961 SC
377], State of West Bengal v BK Mondal & Sons [1962] Supp 1 SCR 876, State of West Bengal v BK Mondal & Sons (1962) 2
SCA 375 [LNIND 1961 SC 377] [LNIND 1961 SC 377] [LNIND 1961 SC 377].
4 State of Bihar v Karam Chand Thapar & Bros Ltd AIR 1962 SC 110 [LNIND 1961 SC 161] [LNIND 1961 SC 161] [LNIND
1961 SC 161], State of Bihar v Karam Chand Thapar & Bros Ltd [1962] 1 SCR 827 [LNIND 1961 SC 161] [LNIND 1961 SC 161]
[LNIND 1961 SC 161], State of Bihar v Karam Chand Thapar & Bros Ltd (1962) 2 SCJ 17. See contra Mulamchand v State of
Madhya Pradesh AIR 1968 SC 1218 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC 48], Mulamchand v State of
Madhya Pradesh [1968] 3 SCR 214 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC 48], Mulamchand v State of
Madhya Pradesh (1968) SCD 951 [LNIND 1968 SC 48] [LNIND 1968 SC 48] [LNIND 1968 SC 48](the Court reiterated the view
that the Constitution of India art 299(1) has not been enacted for the sake of mere form and therefore, the formalities prescribed
by it cannot be dispensed with; that if the plea of the government regarding estoppel or ratification is admitted, that would mean
repeal of an important constitutional provision intended for the protection of the general public).
5 Ie the formalities as per the Constitution of India art 299 (see generally[80]CONSTITUTIONAL LAW).
6 State of Uttar Pradesh v Murari Lal & Bros Ltd AIR 1971 SC 2210 [LNIND 1971 SC 344] [LNIND 1971 SC 344] [LNIND 1971
SC 344], State of Uttar Pradesh v Murari Lal & Bros Ltd (1971) 2 SCC 449 [LNIND 1971 SC 344] [LNIND 1971 SC 344] [LNIND
1971 SC 344], State of Uttar Pradesh v Murari Lal & Bros Ltd [1972] 1 SCR 1 [LNIND 1971 SC 344] [LNIND 1971 SC 344]
[LNIND 1971 SC 344].

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No estoppel Estoppel
[005.311] No estoppel Estoppel cannot apply against the government, if it seeks to nullify a contract that is
not in the prescribed form1.
Estoppel can however apply in case of statutory contracts or contracts by statutory bodies, as such contracts
do not fall under the category of government contracts2.
1 Jit Ram Shiv Kumar v State of Haryana AIR 1980 SC 1285 [LNIND 1980 SC 190] [LNIND 1980 SC 190] [LNIND 1980 SC
190]; The Bihar Eastern Gangetic Fishermen Co operative Society v Sipahi Singh AIR 1977 SC 2149 [LNIND 1977 SC 261]
[LNIND 1977 SC 261] [LNIND 1977 SC 261], The Bihar Eastern Gangetic Fishermen Co operative Society v Sipahi Singh
(1977) 4 SCC 145 [LNIND 1977 SC 261] [LNIND 1977 SC 261] [LNIND 1977 SC 261], The Bihar Eastern Gangetic Fishermen
Co operative Society v Sipahi Singh (1977) UJ 586; N Ramanatha v State of Kerala AIR 1973 SC 2641 [LNIND 1973 SC 250]
[LNIND 1973 SC 250] [LNIND 1973 SC 250], N Ramanatha v State of Kerala [1973] 1 SCR 671, N Ramanatha v State of
Kerala (1973) Lab IC 1593; Mulamchand v State of Madhya Pradesh AIR 1968 SC 1218 [LNIND 1968 SC 48] [LNIND 1968 SC
48] [LNIND 1968 SC 48], Mulamchand v State of Madhya Pradesh [1968] 3 SCR 214 [LNIND 1968 SC 48] [LNIND 1968 SC 48]
[LNIND 1968 SC 48], Mulamchand v State of Madhya Pradesh (1968) SCD 951 [LNIND 1968 SC 48] [LNIND 1968 SC 48]
[LNIND 1968 SC 48].
2 Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd AIR 1983 SC 848, Gujarat State Financial Corporation v Lotus
Hotels Pvt Ltd (1983) 3 SCC 379, Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd (1983) 2 SCWR 144.

ADMINISTRATIVE LAW/25. GOVERNMENT CONTRACTS/(1) GENERALLY/B. INAPPLICABILITY OF
FORMALITIES OF GOVERNMENT CONTRACTS/[005.312] Service agreements
[005.312] Service agreements A contract of service with government must not be struck down for
non-compliance with all the provisions of government contracts1. The reason is that once appointed, the
government servant acquires a status and his rights and obligations are no longer determined by the consent
of the two parties. They are determined by statutory rules framed by the government2.
Generally, no formal document is executed between the government and the servant. A government service
starts with a letter of appointment, is subject to the pleasure of the President and may be terminated at will
despite an express condition to the contrary3.
1 Ranjit Kumar Chakravarthy v State of West Bengal AIR 1958 Cal 551 [LNIND 1958 CAL 157] [LNIND 1958 CAL 157] [LNIND
1958 CAL 157], Ranjit Kumar Chakravarthy v State of West Bengal 62 Cal WN 546, Ranjit Kumar Chakravarthy v State of
West Bengal (1958) 2 Lab LJ 392 [LNIND 1958 CAL 104] [LNIND 1958 CAL 104] [LNIND 1958 CAL 104]; Union of India v
Jyotirmoyee Sharma AIR 1967 Cal 461 [LNIND 1966 CAL 130] [LNIND 1966 CAL 130] [LNIND 1966 CAL 130]. As to
government contracts see [005.307] and following.
2 Ie the rules framed by the Constitution of India arts 309-312 (see generally[80]CONSTITUTIONAL LAW).
3 Parshotam Lal Dhingra v Union of India AIR 1958 SC 36 [LNIND 1957 SC 116] [LNIND 1957 SC 116] [LNIND 1957 SC 116],
Parshotam Lal Dhingra v Union of India (1958) SCJ 217, Parshotam Lal Dhingra v Union of India [1958] SCR 828 [LNIND 1957
SC 116] [LNIND 1957 SC 116] [LNIND 1957 SC 116](a service contract with the government is subject to pleasure of the
President/Governor under the Constitution of India art 310(1) and can be terminated at will despite an express condition to the
contrary; it cannot be regarded as a contract in the usual sense of the term and thus, must not be brought within the purview of
art 299(1)).

ADMINISTRATIVE LAW/25. GOVERNMENT CONTRACTS/(1) GENERALLY/B. INAPPLICABILITY OF
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FORMALITIES OF GOVERNMENT CONTRACTS/[005.313] Statutory contracts
[005.313] Statutory contracts The formalities involved in government contracts do not apply to a statutory
contract that is, a contract made in exercise of statutory powers and not general executive powers1.
1 Steel Authority of India Ltd v State of Madhya Pradesh AIR 1999 SC 1630 [LNIND 1999 SC 343] [LNIND 1999 SC 343]
[LNIND 1999 SC 343], Steel Authority of India Ltd v State of Madhya Pradesh (1999) 4 SCC 76 [LNIND 1999 SC 343] [LNIND
1999 SC 343] [LNIND 1999 SC 343], Steel Authority of India Ltd v State of Madhya Pradesh (1999) 3 SCJ 67 [LNIND 1999 SC
343] [LNIND 1999 SC 343] [LNIND 1999 SC 343]; Lalji Khimji v State of Gujarat (1993) Suppl (3) SCC 567, Lalji Khimji v State
of Gujarat [1993] 1 SCR 366 [LNIND 1993 SC 73] [LNIND 1993 SC 73] [LNIND 1993 SC 73], Lalji Khimji v State of Gujarat
(1993) 2 JT 89; State of Haryana v Lal Chand AIR 1984 SC 1326 [LNIND 1984 SC 138] [LNIND 1984 SC 138] [LNIND 1984
SC 138], State of Haryana v Lal Chand (1984) 3 SCC 634 [LNIND 1984 SC 138] [LNIND 1984 SC 138] [LNIND 1984 SC 138],
State of Haryana v Lal Chand [1984] 3 SCR 715 [LNIND 1984 SC 138] [LNIND 1984 SC 138] [LNIND 1984 SC 138](the
Supreme Court considered a contract granting exclusive privilege of liquor vending, executed in exercise of the statutory
powers referable to the Punjab Excise Act 1914 and the rules made under it; the Court held that the grant of exclusive privilege
gave rise to a contract of a statutory nature, distinguished from the one executed under the Constitution of India art 299(1) and
therefore, compliance with art 299(1) was not required in such a case); A Damodaran v State of Kerala AIR 1976 SC 1533
[LNIND 1976 SC 120] [LNIND 1976 SC 120] [LNIND 1976 SC 120], Damodaran v State of Kerala (1976) 3 SCC 61 [LNIND
1976 SC 120] [LNIND 1976 SC 120] [LNIND 1976 SC 120], Damodaran v State of Kerala [1976] 3 SCR 786 [LNIND 1976 SC
121] [LNIND 1976 SC 121] [LNIND 1976 SC 121]; B Channabyre Gowda v State of Mysore AIR 1974 Kant 135, B Channabyre
Gowda v State of Mysore (1974) 1 Kant LJ 33.

ADMINISTRATIVE LAW/25. GOVERNMENT CONTRACTS/(2) GOVERNMENT PROPERTY/[005.314] Sale
of government property
[005.314] Sale of government property The principle for disposing public property is that the sale must
take place openly and the effort must be to get the best price1. The several methods that may be employed
for this purpose are:
(1) public auction;

(2) inviting tenders for the property2.
Mineral rights must be granted not through private negotiations but by holding a public auction where those
interested in the matter may bid against each other. Public auction with open participation and a reserved
price guarantees public interest being fully subserved3.
Sale of an undertaking to the highest bidder after global advertisement inviting tender, at a price that is
above the reserve price fixed by the government may not be considered as vitiated per se. This is because,
in matters of fixation of the reserve price, the court does not interfere, unless the methodology adopted for
the purpose is arbitrary4.
1 Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India AIR 1981 SC 344, Fertilizer Corporation, Kamgar Union,
(Regd) Sindri v Union of India (1981) 1 SCC 568 [LNIND 1980 SC 455] [LNIND 1980 SC 455] [LNIND 1980 SC 455], Fertilizer
Corporation, Kamgar Union, (Regd) Sindri v Union of India [1981] 2 SCR 52(the corporation sold some old machinery, the
operation of which had become uneconomical; the Kamgar Union challenged the sale under the Constitution of India art 14 as
being arbitrary and unfair; the Supreme Court concluded, after going into the facts leading to the impugned sale that it is difficult
to hold that the decision to sell the plant or equipment of the factory was arbitrary, unreasonable or mala fide).
2 State of Uttar Pradesh v Shiv Charan Sharma AIR 1981 SC 1722, State of Uttar Pradesh v Shiv Charan Sharma (1981) Supp
SCC 85, State of Uttar Pradesh v Shiv Charan Sharma (1981) 3 Scale 1369 (public auction with open participation and a
reserved price guarantees public interest being fully subserved).
Haji TM Hassan v Kerala Financial Corpn AIR 1988 SC 157 [LNIND 1987 SC 766] [LNIND 1987 SC 766] [LNIND 1987 SC
766](the Supreme Court has emphasised that public property owned by the state or its instrumentality must be sold generally by
public auction or by inviting tenders; observance of this rule not only fetches the highest price for the property but also ensures
465
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fairness in the activities of the state and public authorities; there must not be any suggestion of discrimination, bias, favouritism
or nepotism; however, there may be situations when departure from this rule may become necessary; however, such situations
must be justified compelling reasons and not by convenience); Sachidanand Pandey v State of West Bengal AIR 1987 SC
1109 [LNIND 1987 SC 159] [LNIND 1987 SC 159] [LNIND 1987 SC 159], Sachidanand Pandey v State of West Bengal (1987)
2 SCC 295 [LNIND 1987 SC 159] [LNIND 1987 SC 159] [LNIND 1987 SC 159], Sachidanand Pandey v State of West Bengal
(1987) 2 SCJ 70 [LNIND 1987 AP 472] [LNIND 1987 AP 472] [LNIND 1987 AP 472]; Chenchu Rami Reddy v Government of
Andhra Pradesh AIR 1986 SC 1158 [LNIND 1986 SC 94] [LNIND 1986 SC 94] [LNIND 1986 SC 94]; Chenchu Rami Reddy v
Government of Andhra Pradesh (1986) 3 SCC 391 [LNIND 1986 SC 94] [LNIND 1986 SC 94] [LNIND 1986 SC 94], Chenchu
Rami Reddy v Government of Andhra Pradesh [1986] 1 SCR 989 [LNIND 1986 SC 94] [LNIND 1986 SC 94] [LNIND 1986 SC
94].
3 Ram & Shyam Co v State of Haryana AIR 1985 SC 1147 [LNIND 1985 SC 188] [LNIND 1985 SC 188] [LNIND 1985 SC 188],
Ram & Shyam Co v State of Haryana (1985) 3 SCC 267 [LNIND 1985 SC 188] [LNIND 1985 SC 188] [LNIND 1985 SC 188],
Ram & Shyam Co v State of Haryana [1985] Supp 1 SCR 541 (in order to settle mineral rights, the government rejected the
highest bid of the petitioner and accepted a bid secretly made by the respondent; the Court quashed the deal as the appellant
suffered an unfair treatment at the hands of the state in discharging its administrative functions thereby violating the
fundamental principle of fairplay in action; the Court pointed out that a welfare state as the owner of the public property does not
enjoy the same freedom as a private owner to deal with his property; that a welfare state exists for the common good of the
largest number and, therefore, it must always strive to obtain the best price for public property so that the money can be used
for common good; also, the State must choose the beneficiary fairly and without discretion and without unfair procedure).
4 Balco Employees Union (Regd) v Union of India (2001) JT 10 SC 466 (51 percent equity in Balco, a government undertaking,
was sold to a private company by inviting tenders through global advertisement; the sale was challenged on various grounds
but the Supreme Court rejected all the contentions and upheld the sale).

ADMINISTRATIVE LAW/25. GOVERNMENT CONTRACTS/(3) ROLE OF WRIT JURISDICTION/[005.315]
Issue of writ in matters of contract
[005.315] Issue of writ in matters of contract Earlier, a writ petition was not considered as an appropriate
remedy for imposing contractual obligations on the government1.
Once the government had entered into a contract with a private party, the relations between the contracting
parties were not governed by any constitutional provision but by the provisions of the Contract Act 1872 that
determined the rights and obligations of the concerned parties2.
However, the present position is that if an action is challenged on grounds of the act being act arbitrary,
unfair or unreasonable, the fact that the dispute also falls within the domain of contractual obligations would
not relieve the State of its obligation to comply with the basic constitutional requirements. An additional
contractual obligation cannot divest the claimant of the constitutional guarantee of non-arbitrariness at the
hands of the State in any of its actions3.
Thus, where the dispute lies purely within the contractual field, a writ petition is not maintainable and the
relations between the parties are governed by the contract that determines the rights and obligations of the
parties inter se. For example, the interpretation and implementation of a clause in a contract cannot be the
subject matter of a writ petition. If a term of a contract is violated or whether the State has made excess
payment to the contractor or not, are disputes of a civil nature to be adjudicated in a civil court and cannot be
decided in writ petitions4. However, contractual obligations may fall under judicial review if there is some
public element involved therein. If the government takes unreasonable and arbitrary decisions while acting in
pursuance of a contract, the matter would fall under the writ jurisdiction5.
If in a contract between government and private persons, the concerned officers seek to exercise statutory or
administrative powers; the exercise of such powers can not be viewed as exercise of powers under the
contract between the government and the private party concerned. This means that a writ petition is
maintainable to challenge the action of a public administrator if he exercises statutory or administrative
power within the frame of contractual relationship6.
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1 CK Achutan v State of Kerala AIR 1959 SC 490 [LNIND 1958 SC 161] [LNIND 1958 SC 161] [LNIND 1958 SC 161], CK
Achutan v State of Kerala (1959) SCJ 465 [LNIND 1958 SC 161] [LNIND 1958 SC 161] [LNIND 1958 SC 161], CK Achutan v
State of Kerala (1960) 1 SCA 33. As to specific writs see [005.279] and following.
2 Divisional Forest Officer v Biswanath Tea Co Ltd AIR 1981 SC 1368 [LNIND 1981 SC 271] [LNIND 1981 SC 271] [LNIND
1981 SC 271], Divisional Forest Officer v Biswanath Tea Co Ltd (1981) 3 SCC 143 [LNIND 1981 SC 251] [LNIND 1981 SC 251]
[LNIND 1981 SC 251], Divisional Forest Officer v Biswanath Tea Co Ltd (1981) SCC Tax 199(a party could not claim under the
Constitution of India art 226 for enforcement of contractual obligations and recover damages; that proper relief for the party
would be to seek specific performance of the contract or damages for its breach in a civil court); Radhakrishna Agarwal v State
of Bihar AIR 1977 SC 1496 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna Agarwal v State
of Bihar (1977) 3 SCC 457 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137], Radhakrishna Agarwal v State
of Bihar [1977] 3 SCR 249 [LNIND 1977 SC 137] [LNIND 1977 SC 137] [LNIND 1977 SC 137](the state government leased out
some forest land for 15 years to collect and exploit sal seeds on payment of royalty; the state government cancelled the lease
for breach of certain conditions thereof; the appellants challenged the order of cancellation of the lease through a writ petition
arguing violation of the Constitution of India art 14; negating the contention, the Supreme Court observed that art 14 would have
applied had the state practised some discrimination against the petitioner at the threshold or at the time of entry into the
contract so as to exclude him or some unreasonable or unsustainable ground; that after the state entered into the contract, the
relations were no longer governed by art 14 but by the legally valid contract which determines the mutual rights and obligations
of the parties inter se); State of Punjab v Balbir Singh AIR 1977 SC 1717 [LNIND 1975 SC 383] [LNIND 1975 SC 383] [LNIND
1975 SC 383](the Supreme Court pointed out that a high court had no jurisdiction to enforce the liabilities arising out of mutually
agreed conditions of contract, in a writ proceeding under the Constitution of India art 226).
3 Kumar Shrilekha Vidyarthi v State of Uttar Pradesh AIR 1991 SC 537 [LNIND 1990 SC 565] [LNIND 1990 SC 565] [LNIND
1990 SC 565], Kumar Shrilekha Vidyarthi v State of Uttar Pradesh (1991) 1 SCC 212 [LNIND 1990 SC 565] [LNIND 1990 SC
565] [LNIND 1990 SC 565], Kumar Shrilekha Vidyarthi v State of Uttar Pradesh [1990] Supp 1 SCR 625.
4 Kerala State Electricity Board v Kurien E Kalathil AIR 2000 SC 2573 [LNIND 2000 SC 936] [LNIND 2000 SC 936], Kerala
State Electricity Board v Kurien E Kalathil (2000) 6 SCC 293 [LNIND 2000 SC 936] [LNIND 2000 SC 936], Kerala State
Electricity Board v Kurien E Kalathil (2000) 8 JT 167; NT Abraham v State of Kerala AIR 2000 SC 3459, NT Abraham v State of
Kerala AIR 2000 SCW 2140, NT Abraham v State of Kerala (1999) 9 SCC 280; Radharaman Enterprises v Cuttack Municipal
Corporation AIR 2001 Ori 57 [LNIND 2000 ORI 100] [LNIND 2000 ORI 100] [LNIND 2000 ORI 100], Radharaman Enterprises v
Cuttack Municipal Corporation (2001) (91) Cut LT 108.
5 Union of India v Graphic Industries Co AIR 1995 SC 409, Union of India v Graphic Industries Co (1994) 5 SCC 398;
Assistant Excise Comr v Issac Peter (1994) 4 SCC 104; Mahabir Auto Stores v Indian Oil Corporation AIR 1990 SC 1031
[LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC 135], Mahabir Auto Stores v Indian Oil Corporation (1990) 3 SCC
752 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC 135], Mahabir Auto Stores v Indian Oil Corporation [1990] 1
SCR 818 [LNIND 1990 SC 135] [LNIND 1990 SC 135] [LNIND 1990 SC 135]; Dwarkadas Marfatia & Sons v Board of Trustees
of the Port of Bombay AIR 1989 SC 1642 [LNIND 1989 SC 261] [LNIND 1989 SC 261] [LNIND 1989 SC 261]; Gujarat State
Financial Corporation v Lotus Hotels Pvt Ltd AIR 1983 SC 848, Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd
(1983) 3 SCC 379, Gujarat State Financial Corporation v Lotus Hotels Pvt Ltd (1983) 2 SCWR 144.
6 Divisional Forest Officer, South Kheri v Ram Sanehi Singh AIR 1973 SC 205, Divisional Forest Officer, South Kheri v Ram
Sanehi Singh (1971) 3 SCC 864, Divisional Forest Officer, South Kheri v Ram Sanehi Singh (1970) SCD 181; Surendra Nath v
Delhi Development Authority AIR 1988 Del 277; MS Desai & Co v Hindustan Petroleum Corpn Ltd AIR 1987 Guj 20, MS Desai
& Co v Hindustan Petroleum Corpn Ltd (1986) Guj LH 1170, MS Desai & Co v Hindustan Petroleum Corpn Ltd (1987) 1 28 Guj
LR 375.

ADMINISTRATIVE LAW/26. TORTIOUS LIABILITY OF GOVERNMENT AND COMPENSATION/[005.316]
Legal basis of liability
[005.316] Legal basis of liability The Government of India or of any state, may sue or be sued by the name
of the Union of India or the state, respectively. The Union or a state can thus, be sued as a juristic
personality. However, the Government of India or of a state, may be sued only in relation to their respective
affairs in cases as the Dominion of India and the corresponding Indian states might have sued or been sued,
if the Constitution had not been enacted. This, however, is subject to any law made by Parliament or a state
Legislature. Thus, the liability of the Centre or of a state, is co-terminus with that of the Dominon of India or a
province, before the Constitution of India became effective on 26 January 19501.

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Doctrine of sovereign immunity
[005.317] Doctrine of sovereign immunity Earlier, where an act was done in the exercise of sovereign
powers, which could not be lawfully exercised, except by a sovereign or a delegate of the sovereign, no
action would lie. The Secretary of State would be liable for damages occasioned by the negligence of
government servants, if the negligence was such as would render the ordinary employer liable1. Thus, apart
from statutory provisions, suits could be brought against the East India Company and consequently, against
the Secretary of State as a successor to the Company, in respect of acts done by private individuals, without
sovereign powers. The Secretary of State was not liable for any thing done in exercise of sovereign powers2.
1 P & O Steam Navigation Co v Secretary of State 5 Bom HCR App I (there is a great and clear distinction between acts done
in the exercise of what are usually termed as sovereign powers and acts done in the conduct of undertakings which might be
carried on by private individuals without having such powers delegated to them).
2 Secretary of State v Hari Bhanji ILR 5 Mad 273 (the government was liable for all acts other than an act of state and that the
distinction based on sovereign and non sovereign functions was not well founded; the view was taken that the acts of the
government fell either outside or within, the municipal law and that it was only the former of which the courts could not take
cognisance).

Restrictive government liability in pre-constitution era
[005.318] Restrictive government liability in pre-constitution era In the pre-constitution era, the judicial
view favoured restricted governmental liability. Government could not be held liable for consequences arising
out of exercise of sovereign powers. A large number of functions, such as running of railways, running of
government hospitals, were characterised as sovereign functions of the government and so it was held
immune from any liability arising from exercising such functing1. Only a very few functions were
characterised as non-sovereign or private for which the government could be held liable in torts2.
1 Thangarajan v Union of India AIR 1975 Mad 32 [LNIND 1973 MAD 337] [LNIND 1973 MAD 337] [LNIND 1973 MAD 337](a
military truck was carrying carbon dioxide gas from the factory to a navy ship; due to rash driving a ten year old boy was injured;
the court refused to award any damages on the ground that he was injured diving the discharge of a sovereign function); Union
of India v Harbans Singh AIR 1959 Punj 39 (no cause of action arose when a person was billed by rash and negligent driving of
a military truck by a military driver while engaged on military duty because it was held to the a sovereign function); Gurucharan
v State of Madras AIR 1942 Mad 539 (no suit would be against the government for wrongful confinement as it was discharging
a sovereign function); Ettic C v Secretary of State AIR 1939 Mad 663 [LNIND 1939 MAD 49] [LNIND 1939 MAD 49] [LNIND
1939 MAD 49](the Secretary of State was held not liable for torts of the servant employed in a government hospital as
maintenance of hospitals for public benefit out of public revenue was regarded as a sovereign function); Mata Prasad v
Secretary of State AIR 1931 Oudh 29 (the plaintiff was committed for the offence of embezzlement; later, it transpired that he
had not committed the offence with which he was charged; he brought a suit for damages against the Secretary of State and
the suit was dismissed because it was a sovereign function of the government to take cognisance of offences and try them);
Secretary of State v Cockraft AIR 1915 Mad 993 (the plaintiff was injured by the negligent leaving of a heap of gravel on a
military road over which he was walking; the suit brought by the plaintiff for damages against the plaintiff for damages against
the government was held not maintainable because the military and the maintenance of military roads was a sovereign and not
a private, function).
2 Government functions that were held private and non-sovereign are as follows:
(1) The forest Range Officer wrongfully interfered with the removal of timber by the purchaser of the forest. The
Secretary of State was held liable for the officer's wrongful acts as these arose out of the exercise of
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commercial and not sovereign functions: Secretary of State v Sheoramjee AIR 1952 Nag 213.
(2) A suit for damages for wrongful interference with the plaintiff's property could be brought against the
government, as such a suit would have lain against the East India Company: Secretary of State v Moment 40
IA 48.
(3) Where the government detained any land, goods and chattels belonging to a subject, the Government was
held liable to pay compensation: State of Bihar v Sonabati AIR 1954 Pat 513; Uday Chand v Province of
Bengal 51 Cal WN 537.
Accordingly, the government was held liable to pay damages for trespass over and injury to, the plaintiff's property by troops during the
Second World War: Union of India v Ram Kamal AIR 1953 Assam 116.
Government was held liable in damages for removing earth from the plaintiff's land and placing it on the railway track under construction:
AIR 1952 Assam 141.

Expanded liability in post-constitution era
[005.319] Expanded liability in post-constitution era The rule that the government is not liable if any injury
is caused to any one in the discharge of a sovereign function still prevails. The government is liable in
damages for the negligence of its servants if the negligence is such that as would render an ordinary
employer liable. However, the scope of sovereign functions has been curtailed. Many functions, which were
characterised as sovereign in earlier days, have now come to be characterised as non-sovereign; that is,
functions that even a private person may exercise. Therefore, now the state can be held liable in respect of
more functions than was the case earlier1.
A sovereign function is one that can be performed only by the state and not by private individuals and is
non-justiciable. To identify a nonsovereign function, it must be analysed whether the function is such as can
be performed by an ordinary person2. Sovereign functions of the State have been restricted to only a few
primary and inalienable functions, such as, administration of justice, maintenance of law and order,
repression of crime and the like. Barring these functions, a constitutional government cannot claim any
immunity3.
In the non-sovereign area, the principle of vicarious liability operates between the government and its
employees4.
Following functions have been held to be non-sovereign by the Supreme Court:
(1) bus service run by the State5;

(2) banking business run by the State6;
(3) activities of the public works department of the State7;
(4) construction of a reservoir for facilitating supply of drinking water to the residents of a town8;
(5) use of a military vehicle performing a non military task, such as, carrying hockey or basket ball
teams to an Indian AIR Force Station to play matches against the Indian AIR Force9;
(6) famine relief work10;
(7) railways run by the State11; and
(8) government hospitals run by the State12.
Finally, in the modern context, with the expansion of State functions under the impact of the director
principles as well as under the impact of the concept of welfare state13, it is extremely difficult to characterise
a function as sovereign or non-sovereign14. Further, while a wider view of State liability has come to be
adopted in many common law countries, Parliament in India failed to ameliorate the situation15.
1
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The judicial history of how the liability of government was expanded is as follows:
State of Rajasthan v Vidhyawati AIR 1962 SC 933 [LNIND 1962 SC 46] [LNIND 1962 SC 46] [LNIND 1962 SC 46](the driver of
a jeep, owned and maintained by the State of Rajasthan for the official use of the collector, drove it rashly and negligently, while
bringing it back from the workshop after repairs and fatally injured a pedestrian; the state was held vicariously liable for the
negligence of the driver; the court deliberated that since we have, by our Constitution, established a Republican form of
government and since one of our objectives is to establish a socialistic state with its varied industrial and other activities
employing a large army of servants, there is no justification in principle that the state must not be held liable vicariously for the
tortious act of its servants).
However, in Kasturi Lal Ralia Ram Jain v State of Uttar Pradesh AIR 1965 SC 1039 [LNIND 1964 SC 245] [LNIND 1964 SC
245] [LNIND 1964 SC 245]the court went back to the pre-constitution position: No claim lay for compensation if the tortious act
was committed in the course of an undertaking or employment which was referable to the exercise of sovereign power.
2 Union of India v Savita Sharma AIR 1979 J & K 6 (a military truck going to the railway, station to bring military personnel to
the unit headquarters dashed against a vehicle and injured its occupants; the driver of the truck was held as not engaged in
performing any sovereign function as transportation of military personnel from one place to another could be performed by any
one).
3 Common Cause, A Regd Society v Union of India AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND
1999 SC 637]; Nagendra Rao & Co v State of Andhra Pradesh AIR 1994 SC 2663 [LNIND 1994 SC 789] [LNIND 1994 SC 789]
[LNIND 1994 SC 789](no civilised system can permit an executive to play with the people of its own country and claim that it is
entitled to act in any manner as it is sovereign).
4 State of Madhya Pradesh v Chiroji Lal AIR 1981 MP 65 [LNIND 1980 MP 81] [LNIND 1980 MP 81] [LNIND 1980 MP 81];
State of Orissa v Padmalochan AIR 1975 Ori 41 [LNIND 1974 ORI 20] [LNIND 1974 ORI 20] [LNIND 1974 ORI 20](the function
is sovereign when to maintain law and order, police uses lathi charge on an unruly procession; such an action is non-justifiable).
5 Amulya Patnaik v Orissa AIR 1967 Ori 116; State of Madras v ESI Corpn AIR 1967 Mad 372 [LNIND 1965 MAD 159] [LNIND
1965 MAD 159] [LNIND 1965 MAD 159](plying of buses by government, by way of commercial activity, does not amount to
running the buses on public service; the State is therefore, liable to pay compensation for injuries caused by negligent driving of
such buses); Satya Narain v District Engineer Public Works Department AIR 1962 SC 1161 [LNIND 1962 SC 62] [LNIND 1962
SC 62] [LNIND 1962 SC 62].
6 State v Hindustan Lever AIR 1972 All 486 (sub-treasury conducted on an ordinary banking business was not a sovereign
function and thus, the government was to be liable as any other private individual).
7 State v Ram Pratap AIR 1972 MP 219 [LNIND 1972 MP 111] [LNIND 1972 MP 111] [LNIND 1972 MP 111].
8 State of Mysore v Ramchandra AIR 1972 Bom 93 [LNIND 1970 BOM 78] [LNIND 1970 BOM 78] [LNIND 1970 BOM 78].
9 Union of India v Sadashiv AIR 1985 Bom 345 [LNIND 1985 BOM 2] [LNIND 1985 BOM 2] [LNIND 1985 BOM 2](a cyclist
was knocked down while a crane belonging to the defence department was being towed away for repairs by army personnel;
the function of towing away was not held to be a sovereign function); Pushpinder Kaur Sekhon v Corporal Sharma AIR 1985 P
& H 81 (government was held liable when an accident occurred because of the negligence of the driver of a missile carrier);
Union of India v Savita Sharma AIR 1979 J & K 6 (the driver of a military vehicle while driving to the railway station to bring
jawans of the army from there to the unit headquarters, injured some person on the way by his rash and negligent driving;
government was held liable to pay compensation as the act of transportation, even of jawans, was not a sovereign function as
the act could be performed even by a private transporter); India v Sugrabai AIR 1969 Bom 13 [LNIND 1967 BOM 114] [LNIND
1967 BOM 114] [LNIND 1967 BOM 114](transportation of records, ranging machines and other equipment in a military truck
from the workshop to the school of artillery was held to be a non-sovereign function).
10 Shyam Sunder v State of Rajasthan AIR 1974 SC 890 [LNIND 1974 SC 95] [LNIND 1974 SC 95] [LNIND 1974 SC
95](famine relief work by the state has been held to be a non-sovereign function as it is a function which can be undertaken by
private individuals).
11 Chirman, Railway Board v Chandrima Das AIR 2000 SC 988 [LNIND 2000 SC 182] [LNIND 2000 SC 182] [LNIND 2000 SC
182](running of railways is a commercial activity and establishing yatri niwas at various railway stations to provide lodging and
boarding facilities to passengers on payment of charges is regarded as a port of commercial activity of the Union of India; this
activity cannot be equated with the exercise of sovereign power).
12 Achutrao Haribhav Khodara v State of Maharashtra (1996) 2 SCC 634 [LNIND 1996 SC 441] [LNIND 1996 SC 441] [LNIND
1996 SC 441] (a poor lady having a number of children got herself operated at a government hospital for complete sterilisation;
thereafter she gave birth to a child; for the negligence of the hospital staff, the Supreme Court awarded damages to the lady,
equal to the cost of bringing up the unwanted child up to the age of 18; this establishes the principle of vicarious liability of the
state for the negligence of its medical officers); Pachim Banga Khet Mazdoor Samity v State of West Bengal AIR 1996 SC 2426
[LNIND 1996 SC 914] [LNIND 1996 SC 914] [LNIND 1996 SC 914]; Legal Aid Committee v State of Bihar (1991) 3 SCC 482; Dr
Jacob Georgbe v State of Kerala (1994) 3 SCC 430 [LNIND 1994 SC 417] [LNIND 1994 SC 417] [LNIND 1994 SC 417]; Mohd
Shafi Suleman Kazi v Dr Vilas Dhondu Kavishwar AIR 1982 Bom 27.
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13 See the Constitution of India arts 36-51: These Articles prescribe certain social welfare goals for the State to achieve (see
14 Functions of the government, in a welfare State, are manifold, all of which cannot be termed as activities relating to exercise
of sovereign powers. The functions of the State not only relate to the defence of the country or the administration of justice but
they extend to many other spheres as, for example, education, commercial, social economic, political and even marital. These
activities cannot be said to be related to sovereign power: Chairman Railway Board v Chandrima Das AIR 2000 SC 988
The difficulty of characterising a governmental activity as sovereign or non-sovereign can be highlighted by some judicial
pronouncements:
Running a railway was regarded as a sovereign function ( Bata Shoe Co v Union of India AIR 1954 Bom 129 [LNIND 1953 BOM
1] [LNIND 1953 BOM 1] [LNIND 1953 BOM 1]) but a non-sovereign by another high court (Maharaja Bose v Government
General in Council AIR 1952 Cal 242)and the Supreme Court held it to be a non-sovereign function (Union of India v Ladulal
Jain AIR 1963 SC 1681 [LNIND 1963 SC 98] [LNIND 1963 SC 98] [LNIND 1963 SC 98]) .
15 In all democratic countries, a wider view of state liability has now come to be accepted than was the case in India. Before
1947, in Britain, the Crown was immune from any liability for torts committed by its servants because of the common law maxim
that the King can do no wrong which implies that neither the King can authorise a wrong nor any wrong be imputed to him. The
position was changed by the Crown Proceedings Act 1947, which made the Crown, within certain exceptions, liable in torts like
a private person of full age and capacity. The exceptions are defence of the realm, maintenance of armed forces and postal
service: Wade, 'Administrative Law' (1982) p 698.

Applicability of 'respondent superior'
[005.320] Applicability of 'respondent superior' A restriction on the state liability for tortious acts of its
servants, arising out of the maxim 'respondent superior', is that the master is not liable for the acts of his
servants, performed in the discharge of a duty imposed on them by law1. However, where the impugned act
has been expressly authorised by the State or the State has profited by its performance, the maxim does not
apply and the master would be liable2. In such cases, the State is liable for the wrongful acts of the servants,
even if they have been performed under statutory duties3.
The vicarious liability of the State is linked with the negligence of its officers. If the officer can be sued
personally, there is no reason or rationale for the proposition that the State cannot be sued. If a suit is
maintainable against the officer personally, then there is no reason to doubt that it would not be maintainable
against the state4.
1 State of Rajasthan v Rikhabchand AIR 1961 Raj 64 [LNIND 1960 RAJ 157] [LNIND 1960 RAJ 157] [LNIND 1960 RAJ 157];
Union of India v Dhansar Coal Co AIR 1959 Pat 347 (under the Rajasthan Public Safety Ordinance 1948, the Government of
Rajasthan conferred power on the Commissioner to make arrests; the Commissioner arrested the plaintiff and the state
government approved the action; the order of the Commissioner was found not to have been made in good faith; the plaintiff's
suit for damages against the state government was rejected on the ground that the Commissioner was exercising a statutory
power; that the delegation did not make him an agent of the Government for he had to exercise his own discretion in the matter;
in the circumstances, the Maxim 'respondent superior' did not apply; where a government officer purports to act under a
statutory power conferred upon him, he cannot be said to be acting as an ordinary agent of the State and whatever wrong he
does is his own and not that of his employer); Union of India v Ayed Ram AIR 1958 Pat 347 (hard coke, supplied by the plaintiff
to a jute mill, belonging to the Military Department, was rejected as it was not up to the specification; the Deputy Coal
Commissioner then gave directions for its disposal by sale and for payment of the price thus realised to the plaintiff; this was
done under the statutory powers conferred on the Commissioner by the Coal Control Order; the plaintiff brought a suit against
the Government of India to recover the price stipulated but it was dismissed and the Government was held not liable; the court
ruled that assuming that the Commissioner exceeded his statutory authority, the plaintiff must have sued him and not the
Government for the doctrine of respondent superior could not be applied so as to make the Government responsible when the
Commissioner was acting in exercise of his statutory powers and not under the control or order of the Government); Uday
Chand v Province of Bengal 51 Cal WN 537 (a certain quality of nonduty-pad tobacco was seized from the plaintiffs shop and
the Collector of Central Excise, acting under the Central Excise and Salt Act 1985 s 33, confiscated the seized tobacco which
could be released on payment of duty and fine; the plaintiff paid the duty and the fine but thereafter, the tobacco was sold by the
department and the sale proceeds deposited in the government treasury; the plaintiff brought a suit against the Union of India
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for damages for the tort of conversion; the Union of India was held not liable, for the department acted under statutory power;
however, to the extent the sale proceeds were deposited in the treasury, the Government was benefited and the plaintiff was
entitled to the refund of this money); Secretary of State v Ramnath AIR 1934 Cal 128; Ram Shankar v Secretary of State AIR
1932 All 575 (the deputy collector paid some money to a person who was no entitled to it by mistake; the Secretary of State
was held not liable for the mistake of the deputy collector as it was committed in exercise of his statutory duties); Secretary of
State v Srigobinda Choudhari AIR 1932 Cal 834 (a suit for damages against the Secretary of State for misfeasance, wrongs,
negligence or omissions of duties of managers appointed by the court of wards was rejected because these officers of the
government acted in exercise of statutory powers); Ross v Secretary of State AIR 1915 Mad 434 (the Secretary of State was
held not liable for the wrongful acts of the district magistrate done by him in the exercise of statutory authority).
Tobin v The Queen 143 ER 1148; Nireaha v Baker 190 IAC 561; Shivabhajan v Secretary of State ILR 28 Bom 314 (certain
bundles of hay were attached by the chief constable of Mahim because they were believed to be stolen property; the person
from whose possession hay was attached was prosecuted but acquitted; the hay was lost in the meantime and the person
concerned sued the Secretary of State of compensation for negligence of the chief constable; the Secretary of State was not
liable as the chief constable had acted under powers conferred on him by the Code of Criminal Procedure 1973).
2 State of Uttar Pradesh v Chhotey Lal AIR 1967 All 327 [LNIND 1965 ALL 69] [LNIND 1965 ALL 69] [LNIND 1965 ALL 69];
State of Saurashtra v Vallabhdas AIR 1956 Sau 65 (confiscation of grams, their detention and release, were expressly
authorised by the Saurashtra Government and no discretion was left to its officers; the government was, therefore, held liable
for the loss occasioned to the importers).
3 Law Commission of India, (1st Report) p 33.
4 N Nagendra Rao & Co v State of Andhra Pradesh AIR 1994 SC 2663 [LNIND 1994 SC 789] [LNIND 1994 SC 789] [LNIND
1994 SC 789](a fertiliser belonging to the appellants was seized by the district revenue officer in exercise of statutory powers
under the Essential Commodities Act 1955 s 6A; no steps were taken, as required by the statutory provisions, to dispose of the
fertiliser with the result that it deteriorated in quality in course of time the collector released the stock of fertiliser as no violation
of any law by the appellants could be established; the appellants filed a suit for compensation against the State of Andhra
Pradesh for negligence of its officers; the State was held liable to pay the value of the damaged fertiliser to the appellants along
with interest thereon, though it could be argued that the concerned official was acting in pursuance of statutory powers).

Act of State
[005.321] Act of State An act of state is an act of a sovereign against another sovereign or an alien outside
its territory. As an act of state derives its authority not from municipal law but from ultra legal or supra legal
means and municipal courts have no power to examine its propriety or legality. There is legal immunity in
respect of acts done by the State against an alien outside its territory1. An act of State cannot be questioned
or made the subject of legal proceedings, in municipal courts.
There cannot an act of State by the government against its own subjects2. An act done by a State against its
own citizens is not immune from judicial scrutiny and its legality and validity must be tested under the
municipal law and in municipal courts3.
The concept of act of State has been invoked by the courts in India in several cases, both in pre-constitution4
as well as post-constitution days5.
1 Eshugbayi Ebko v State of Nigeria (1931) AC 662; Johnstone v Pedlar (1912) 2 AC 262.
2 B K Mahapatra v State of Orissa AIR 1988 SC 24 [LNIND 1987 SC 721] [LNIND 1987 SC 721] [LNIND 1987 SC 721].
3 P V Rao v Khusaldas AIR 1949 Bom 277.
Nawab of Carnatic v East India Company 30 ER 391 and 521 (1791-93) (a suit brought by the nawab against the East India
Company, for an account of rents of his territories while in company's possession under a political treaty between the company
and the nawab; the suit was dismissed as it was a matter between two sovereign--the company and the nawab; the company
acted all through in its political capacity).
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East India Co v Syed Ally (1827) 7 MIA 555 (resumption by the government, of a jagir, granted by the former nawab of
Carnatic, before the date of cession to the East India Company was held to be an act of sovereign power and so example from
the jurisdiction of the courts).
Secretary of State v Kamachee Boyee Sahaba 7 MIA 476 (a claim was made to the property by the East India Company; on
the death of the Raja of Tanjore without heirs; the Privy Council ruled that as the act was an act of State which was not
grounded in municipal law, the courts had no jurisdiction in the matter, for transactions between independent states were
governed by laws other than the municipal laws).
Ex-Raja of Coorg v East India Co (1860) 54 ER 642 (the company had made war against the Raja of Coorg, annexed his
territory and taken his property; the raja filed suit against the company but it was dismissed on the ground that the company had
acted in its sovereign capacity).
See however Forester v Secretary of State IA Supp Vol 10 (the Government of India, on the death of Begum Sumroo,
resumed property formerly belonging to her; the legality of this action was questioned by her heirs; it appeared that Begum
Sumroo had not acquired the position of a sovereign and that she was a British subject at the time of her death and that the
seizure of property was not by arbitrary power belonging to a sovereign but was resumption under colour of legal title, of lands
previously held from the government by a subject under a particular tenure, on the alleged determination of that tenure; it was
held that, as the seizure of land was under colour of title, it could not be an act of State and the questions raised in the suit were
cognisable by a municipal court).
5 Dalmia Dadri Cement Co v Commissioner of Income Tax AIR 1958 SC 816 [LNIND 1958 SC 65] [LNIND 1958 SC 65]
[LNIND 1958 SC 65](the Dalmia Dadri Cement Company obtained some concessions in 1938 from the ruler of Jind; in 1948,
Jind was merged with several other states to form a bigger state known as the Union of Patiala; by a law promulgated by it, the
Union abrogated all laws operating in all the former states and made the laws prevailing in the State of Patiala uniformly
applicable throughout the Union of Patiala and thus, the Income Tax Act 1961 became applicable to Dalmia Dadri Cement
Company; the company claimed exemption from payment of income tax by virtue of the concession originally granted to it by
the ruler of Jind; the Supreme Court, however, rejected the contention because when the State of Jind was merged and a new
sovereignty was born; the rights granted by the state could be enforced against the Union of Patiala only if it recognised them
by conduct or affirmative declarations; the Union of Patiala did not affirm the contract between the company and the Jind ruler;
on the other hand, it abrogated all those rights by abrogating all old laws prevailing in the various states and applying the
Patiala laws not having assumed the obligation, it could not pass it to any Part-B state or the Central Government and so the
company was liable to be taxed); Amar Singhji v State of Rajasthan AIR 1955 (El) SC 504; Amarchand Butial v Union of India
State of Saurashtra v Memon Haji Ismail AIR 1959 SC 1383 [LNIND 1959 SC 139] [LNIND 1959 SC 139] [LNIND 1959 SC
139](the administration of the princely state of Junagadh was taken over by the government of India and some property
previously sifted by the former Nawab of Junagadh was resumed; the Supreme Court ruled that Junagadh was a sovereign
state when its administration was assumed by the Indian Government; the subjects of the state were aliens and not Indian
citizens at the time and therefore, the resumption of the property was an act of State, for which no action could be brought in the
court); State of Gujarat v Vora Fiddali AIR 1964 SC 1043 [LNIND 1964 SC 22] [LNIND 1964 SC 22] [LNIND 1964 SC 22].

Compensation and writs
[005.322] Compensation and writs Ordinarily, a person has to file a civil suit against the government to
claim compensation for its tortious liability. The Supreme Court and the high courts may award compensation
to the injured parties through writ petitions1. This may be done where the fundamental right to life and
personal liberty has been breached or in questions of public law2.
When a person's fundamental right is infringed, he has a public law remedy of seeking compensation from
the State and this public law remedy is in addition to the private law remedy by way of a civil suit for
damages3.
1 As to the writ jurisdiction of the Supreme Court and high courts see [005.000] and following. See the Constitution of India arts
32 and 226 (see generally[80]CONSTITUTIONAL LAW).
2 State of Andhra Pradesh v Challa Ramkrishna Reddy AIR 2000 SC 2083 [LNIND 2000 SC 741] [LNIND 2000 SC 741]
[LNIND 2000 SC 741](when a prisoner was killed in a bomb attack on him while lodged in the prison, the Supreme Court
awarded compensation for breach of his right to life guaranteed by the Constitution of India art 21; even a prisoner has
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fundamental rights including other human rights; in the instant case, damages were awarded against the State for negligence of
its prison staff that resulted in the death of a prisoner; fundamental rights, which also include basic human rights, continue to be
available to a prisoner and those rights cannot be defeated by pleading the old and archaic defence of immunity in respect of
sovereign acts); Chairman, Railway Board v Mrs Chandrima AIR 2000 SC 988 [LNIND 2000 SC 182] [LNIND 2000 SC 182]
[LNIND 2000 SC 182]; Nilabati Behera v State of Orissa AIR 1993 SC 1960 [LNIND 1993 SC 1167] [LNIND 1993 SC 1167]
[LNIND 1993 SC 1167]; Rudul Sah v State of Bihar AIR 1983 SC 1086 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND
1983 SC 181], Rudul Sah v State of Bihar (1983) 4 SCC 141 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND 1983 SC
181], Rudul Sah v State of Bihar [1983] 3 SCR 508 [LNIND 1983 SC 181] [LNIND 1983 SC 181] [LNIND 1983 SC 181] (it
cannot be understood as laying a law that in every case of tortious liability recourse must be had to a suit; when there is
negligence on the face of it and infringement of art 21 is there, it cannot be said that there will be any bar to proceed under art
226 of the Constitution).
3 D K Basu v State of West Bengal AIR 1997 SC 610 [LNIND 1996 SC 2177] [LNIND 1996 SC 2177] [LNIND 1996 SC 2177];
Dr Jacob George v State of Kerala (1994) 3 SCC 430 [LNIND 1994 SC 417] [LNIND 1994 SC 417] [LNIND 1994 SC 417]
(compensation awarded for negligence in government hospitals); Nilabati Behera v State of Orissa AIR 1993 SC 1960 [LNIND
1993 SC 1167] [LNIND 1993 SC 1167] [LNIND 1993 SC 1167]; (compensation awarded for custodial death); People's Union
for Democratic Rights v State of Bihar AIR 1987 SC 355 [LNIND 1986 SC 531] [LNIND 1986 SC 531] [LNIND 1986 SC
531](compensation awarded for police atrocities); Bhim Singh v State of Jammu & Kashmir AIR 1986 SC 494 [LNIND 1985 SC
350] [LNIND 1985 SC 350] [LNIND 1985 SC 350]; Rudul Sah v State of Bihar AIR 1983 SC 1086 [LNIND 1983 SC 181]
[LNIND 1983 SC 181] [LNIND 1983 SC 181], Rudul Sah v State of Bihar (1983) 4 SCC 141 [LNIND 1983 SC 181] [LNIND 1983
SC 181] [LNIND 1983 SC 181], Rudul Sah v State of Bihar [1983] 3 SCR 508 [LNIND 1983 SC 181] [LNIND 1983 SC 181]
[LNIND 1983 SC 181] (compensation awarded for illegal detention).
M Vijaya v Chairman and Managing Director, Singreni Collieries Co Ltd AIR 2001 AP 502 (the writ petition was maintainable as
art 21 guarantees a dignified human existence and not a mere animal existence; art 21 confers a right to enjoy all faculties of
life and it casts a delegation on the State to protect and preserve human life); Paschim Banga Khet Mazdoor Samity v State of
West Bengal AIR 1996 SC 2426 [LNIND 1996 SC 914] [LNIND 1996 SC 914] [LNIND 1996 SC 914]((HIV infected blood was
transfused in a woman patient in a hospital because of the negligence of the hospital staff; the woman claimed compensation
from the state by moving a writ petition under the Constitution of India art 226; the hospital was run by a government
corporation).

ADMINISTRATIVE LAW/27. MISFEASANCE IN PUBLIC OFFICE/[005.323] Meaning
[005.323] Meaning In the tort of misfeasance in public office, damages are payable:
(1) when an official acts maliciously, in the performance of his duty and with the intent of inflicting
injury on a person; and
(2) where an official knowingly acts without lawful authority and causes damage to some person1.
The tort comes into being when there is conscious abuse of power on the part of a public authority. The
necessary element of this tort is either malice or knowledge of invalidity on the part of the concerned official.
The tort includes malicious abuse of power, deliberate maladministration and other unlawful acts committed
by a person holding a public office. Administration is liable in tort to pay damages when it acts maliciously in
the performance of its duty with the intent of inflicting injury on a person2.
Where a decision maker takes into account an irrelevant consideration, it may create a right to damages for
misfeasance in public office, if it can be the proved that the action complained of was done knowingly or
maliciously3. Proof of ill will, malice or specific intent to injure is not essential to the tort. It would be enough if
the plaintiff establishes that the defendant acted unlawfully, in a manner foreseeably injurious to the plaintiff4.
There is thus, a tort which has been called misfeasance in public office and which includes malicious abuse of power, deliberate
maladministration and also other unlawful acts causing injury: Wade, 'Administrative Law' (1995) pp 789-790.
A public authority may be liable where there is an exercise or non-exercise of public power: (1) which is either affected by
malice towards the plaintiff; or (2) the decision-maker knows the power to be unlawful; and (3) the plaintiff is, in consequence,
deprived of a benefit or suffers other loss: De Smith, 'Judicial Control of Administrative Action' (1995) p 74.
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Misfeasance in public office must at least involve an act done in the exercise or purported exercise by the public officer, of some
power or authority, with which he is clothed by virtue of the office he holds and which is done in bad faith or without reasonable
cause: Calvelery v Chief Constable (1989) 1 All ER 1025, 1031. See generally [285]TORT.
2 Dunlop v Woollahara Municipal Council (1981) 2 WLR 693.
3 A few cases in which the concept of misfeasance in public office has been applied are:
(1) Roncarelli v Duplissis (1959) 16 DLR (2d) 689 (a citizen who suffers damages as a result of flagrant misuse
of public power aimed at him has the right to an award of damages in civil action in tort; damages may be
payable when there is malicious abuse of power because of the deliberate intent to injure without legal
justification).
(2) Gersham v Manitoba Vegetable Products Marketing Board (1976) 69 DLR (3d) 114 (the principle that public
bodies must not use their powers for purposes incompatible with the purposes envisaged by the statutes,
under which they derive such powers, cannot be in doubt; thus, it is clear that a citizen who suffers damages
as a result of flagrant abuse of public power aimed at him has the right to an award of damages, in a civil
action in tort).
4 Bourgoin SA v Ministry of Agriculture [1985] 3 All ER 585, 598 (the Minister of Agriculture revoked the license of the plaintiff
to import turkeys from abroad into the United Kingdom on the ground that they would spread diseased; the minister however,
later, conceded that the ban was imposed as an anti competitive measure with a view to protect English turkey producers; the
minister knew that his conduct was in breach of the Treaty of Rome art 30, which prohibited unjustifiable import restrictions; the
minister also knew that his action of revocation would and was calculated to injure the plaintiffs in their business and he also
knew that protection of English turkey producers was not a purpose for the achievement of which powers had been conferred
on him by law; the defendants argued that they were not actuated by any intent to injure the plaintiff but by a need to protect the
British interests; on behalf of the plaintiffs it was argued that it was sufficient for liability under the tort to arise; if the defendant
knew at the time that his conduct was ultra vires and would injure the plaintiffs, as it did; albeit the defendant's purpose in acting
as he did was not the infliction of that injury; the court ruled in favour of the plaintiffs on this point).

ADMINISTRATIVE LAW/27. MISFEASANCE IN PUBLIC OFFICE/[005.324] Types of misfeasance
[005.324] Types of misfeasance There are two types of tort of misfeasance in public office1:
(1) where the conduct is specifically intended to injure a person; or

(2) where the conduct is without the knowledge of whether the concerned officer has power.
Where power is exercised mala fide and there is abuse of power, the affected person is entitled to claim
compensation2. However, when power is exercised in an arbitrary manner and damages may be payable by
him to the government, even if no one is specifically injured. This is the concept of absolute liability of public
servants for misfeasance3.
When injury is caused to a third party, by misuse of power by the concerned authority, he may seek
damages for the loss caused4.
There must be an identifiable claimant whose interest was damaged by a public officer maliciously or with
the knowledge that the impugned action was likely to injure the interest of that person5.
If a minister's order is merely unlawful, it could be quashed on judicial review but there would be no remedy
by way of damages. However, if the minister had knowingly abused his power so as to injure the concerned
party, damages may be a remedy. However, the Supreme Court has referred the matter to the Constitution
Bench for consideration6.
1 Three Rivers District Council v Bank of England (III) [1996] 3 All ER 558.
2 A few recent pronouncements of the Supreme Court have very well established the tort of misfeasance in public office in
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India:
(1) Prem Lal v Government of Uttar Pradesh AIR 1962 All 2333 (the power of requesting two motor vehicles
belonging to the plaintiff were exercised under the Uttar Pradesh Requisition of Motor Vehicles Emergency
Powers Act 1947, not because the government genuinely needed the vehicles but to teach him a lesson; it was
held that the requisitioning order was mala fide and an abuse of power and that the plaintiff was entitled to file
a suit for compensation against the government).
(2) Lucknow Development Authority v M K Gupta AIR 1994 SC 789 (even after the full payment was made for the
flat, it was not handed over to the petitioner for two years; in case harassment is caused by the mala fide acts
of a public servant, then it is he who must be held responsible for such behaviour).
3 Common Cause, A Registered Society v India (1996) 6 SCC 530 [LNIND 1996 SC 1542] [LNIND 1996 SC 1542] [LNIND
1996 SC 1542] (central minister allotted 15 petroleum retail outlets to several persons in his discretion; this action of the
minister was challenged through a public interest litigation writ petition in the Supreme Court under art 32; after studying the
relevant files, pertaining to these allotments and also the affidavits field by the secretary to the concerned ministry and by the
allottees justifying the allotments made to them, the court came to the conclusion that there was nothing in the record to show
that the minister kept any guidelines in view while making these allotments; as mentioned above, no criteria was fixed no
guidelines were kept in view, none knew how many petrol pumps were available, applications were not invited and the allotment
of petrol pumps were made in an arbitrary and discriminatory manner; the court declared that it was high time that the public
servants be held responsible for their mala fide acts in the discharge of their functions as public servants); Shivsagar Tiwari v
Union of India (1996) 6 SCC 558 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873].
4 Shivsagar Tiwari v Union of India (1996) 6 SCC 558 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873].
See contra Common Cause v Union of India (III) AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999
SC 637](reviewing one of its decision in a review petition being filed, the court ruled that although the act of the minister was
arbitrary and illegal, in the facts and circumstances of the case, the tort of misfeasance had not been committed by the minister;
the court explained that the tort has been defined as malicious abuse of power, deliberate maladministration and unlawful acts
causing injury; the tort imposes liability on a public officer who does an act, which to his knowledge, amounts to an abuse of his
office and which causes damage).
5 Common Cause v Union of India (III) AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC
637](obtaining compensation for a tortiously inflicted loss is generally perceived as the aim of the law of tort by the plaintiff;
judgment in favour of the plaintiff can be given and loss suffered by him can be redressed only when a finding of a breach of an
obligation by the tortfeasor is recorded; it is the compensatory function of tort which is invoked by the plaintiff in a court; unless
there is identifiable plaintiff; there cannot be any order for compensation or damages to redress the loss caused to that plaintiff).
6 Shiela Kaul v Shivsagar Tiwari AIR 2002 SC 2868.

ADMINISTRATIVE LAW/28. WAIVER/(1) GENERALLY/[005.325] Meaning
[005.325] Meaning The general proposition of law is that a person may waive his right and that once he
does so, he cannot claim it later. However, a waiver arises only when the person concerned knows about his
right and then waives the same. Thus, for a waiver to arise, the parties must apply their minds to the subject
matter as to what was to be waived1.
Waiver is voluntary relinquishment or intentional abandonment or relinquishment of a known right, benefit,

privilege or advantage, which but for waiver, the party could have enjoyed2. There can be no waiver, unless
the person against whom waiver is claimed had full knowledge of his rights and facts enabling him to take
effectual action for the enforcement of such rights3.
The maxim that ignorance of law is no excuse cannot be carried to the extent of saying that every person
must be presumed to know the law to be invalid and either he must have refused to submit to it or he must
now incur the peril of the bar of waiver being raised against him4.
Waiver will not apply where the Legislature lacks the very competence to enact the law. . If the statute is
beyond the competence of the legislature, as for example, when a State enacts a law which is within the
exclusive competence of the Union, it would be a nullity. Thus, there would be no question of a wavier in
such a case5.
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1 Superintendent of Taxes, Dhubri v Onkarmal Nathmal Trust AIR 1975 SC 2065 [LNIND 1975 SC 191] [LNIND 1975 SC 191]
[LNIND 1975 SC 191], Superintendent of Taxes, Dhubri v Onkarmal Nathmal Trust (1976) 1 SCC 766 [LNIND 1975 SC 191]
[LNIND 1975 SC 191] [LNIND 1975 SC 191], Superintendent of Taxes, Dhubri v Onkarmal Nathmal Trust [1975] Supp SCR
365.
2 Basheshar Nath v Comr of Income Tax, Delhi and Rajasthan AIR 1959 SC 149 [LNIND 1958 SC 147] [LNIND 1958 SC 147]
[LNIND 1958 SC 147], Basheshar Nath v Comr of Income Tax, Delhi and Rajasthan (1959) SCJ 1207 [LNIND 1958 SC 147]
[LNIND 1958 SC 147] [LNIND 1958 SC 147], Basheshar Nath v Comr of Income Tax, Delhi and Rajasthan (1959) 35 ITR 190
3 Associated Hotels of India Ltd v S B Sardar Ranjit Singh AIR 1968 SC 933 [LNIND 1967 SC 365] [LNIND 1967 SC 365]
[LNIND 1967 SC 365], Associated Hotels of India Ltd v S B Sardar Ranjit Singh [1968] 2 SCR 548 [LNIND 1967 SC 365]
[LNIND 1967 SC 365] [LNIND 1967 SC 365], Associated Hotels of India Ltd v S B Sardar Ranjit Singh (1968) 2 SCJ 441
[LNIND 1967 SC 365] [LNIND 1967 SC 365] [LNIND 1967 SC 365]; Greater Bombay Municipal Corporation v Hakimwadi
Tenants Association AIR 1988 SC 233 [LNIND 1987 SC 782] [LNIND 1987 SC 782] [LNIND 1987 SC 782]; Greater Bombay
Municipal Corporation v Hakimwadi Tenants Association (1988) Supp SCC 55 [LNIND 1987 SC 782] Greater Bombay
Municipal Corporation v Hakimwadi Tenants Association (1988) 1 SCJ 78 [LNIND 1987 SC 782] [LNIND 1987 SC 782] [LNIND
1987 SC 782]; Shrikrishandas Tikara v State of Madhya Pradesh AIR 1977 SC 1691, Shrikrishandas Tikara v State of Madhya
Pradesh (1977) 2 SCC 741, Shrikrishandas Tikara v State of Madhya Pradesh (1977) UJ 331; Motilal Padampat (waiver could
not apply as there was nothing to show that the appellants had full knowledge of their right and that they intentionally
abandoned the same).
4 Yousuf Ali Abdulla Fazalbhoy v MS Kasbekar AIR 1982 Bom 143, Yousuf Ali Abdulla Fazalbhoy v MS Kasbekar (1982) 2
Ren CR 484.
5 Behram Khurshid Pesikaka v State of Bombay AIR 1955 SC 123 [LNIND 1954 SC 116] [LNIND 1954 SC 116] [LNIND 1954
SC 116], Behram Khurshid Pesikaka v State of Bombay [1955] 1 SCR 613 [LNIND 1954 SC 116] [LNIND 1954 SC 116] [LNIND
1954 SC 116], Behram Khurshid Pesikaka v State of Bombay (1955) SCJ 73 [LNIND 1954 SC 116] [LNIND 1954 SC 116]
[LNIND 1954 SC 116].

ADMINISTRATIVE LAW/28. WAIVER/(2) WAIVER OF RIGHTS/[005.326] Fundamental rights
[005.326] Fundamental rights The fundamental rights, including the right to life and personal liberty
guaranteed by the Constitution of India cannot be waived. This is because no person can, by any act or
conduct, relieve the state of the solemn obligation imposed on it by the Constitution1. The Constitution is not
only the paramount law of land; it is the source and substance of all laws. Its provisions are conceived in
public interest and intended to serve public purpose. The Constitution has conferred fundamental rights not
only for the benefit of the individuals but also to secure the larger social interests and thus, no individual can
barter away the freedoms conferred on him by the Constitution2. They cannot be compromised nor can there
be any estoppel against their exercise3.
1 Basheshar Nath v Comr of Income Tax, Delhi and Rajasthan AIR 1959 SC 149 [LNIND 1958 SC 147] [LNIND 1958 SC 147]
[LNIND 1958 SC 147], Basheshar Nath v Comr of Income Tax, Delhi and Rajasthan (1959) SCJ 1207 [LNIND 1958 SC 147]
[LNIND 1958 SC 147] [LNIND 1958 SC 147], Basheshar Nath v Comr of Income Tax, Delhi and Rajasthan (1959) 35 ITR 190
[LNIND 1958 SC 147] [LNIND 1958 SC 147] [LNIND 1958 SC 147](under Taxation on Income (Investigation Commission) Act
1947 s 8A, the Central Government appointed an income tax investigation commission to which the government could refer for
investigation and report any case in which the government had prima facie reasons for believing that a person had substantially
evaded payment of income tax; the appellant's case was referred to the commission and he settled his case for a payment of
Rs 3,50,000 and was allowed to pay the sum in monthly instalments of Rs 5000; later the Supreme Court declared the Act to be
unconstitutional vis vis the Constitution of India art 14; the appellant paid a few instalments even after the Court's
pronouncement, but then stopped making payments on the ground that the settlement became invalid and of no effect because
of the unconstitutionality of the relevant law; the government contended that the settlement was enforceable as he had waived
his fundamental right under the Constitution of India art 14 by his conduct; the Court unanimously decided in appellant's favour
and held that there was no waiver by him of his rights as he could not be presumed to know that the Act in question was
constitutionally invalid; the Court declared that the Constitution of India art 14 is an admonition to the state as a matter of public
policy with a view to implement its object of ensuring equality).
See also AIR India v Nargesh Meerza AIR 1981 SC 1829 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366],
India v Nargesh Meerza (1981) 4 SCC 335 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366], India v Nargesh
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Meerza (1981) 2 LLJ 314 [LNIND 1981 SC 366] [LNIND 1981 SC 366] [LNIND 1981 SC 366]. See generally
2 Olga Tellis v Bombay Municipal Corpn AIR 1986 SC 180 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215],
Olga Tellis v Bombay Municipal Corpn (1985) 3 SCC 545 [LNIND 1985 SC 215] [LNIND 1985 SC 215] [LNIND 1985 SC 215],
Olga Tellis v Bombay Municipal Corpn (1986) Cr LR (SC) 23(in a writ proceeding in the high court, the pavement dwellers gave
an undertaking that they would not claim any fundamental right to put up huts on pavements or public roads and that they would
not obstruct the demolition of their huts after a certain date; later when the huts were sought to be demolished after the
specified date, the pavement dwellers put up the plea that they were protected by the Constitution of India art 21; it was argued
in the Supreme Court that they could not raise the plea in view of their previous undertaking; however, the Supreme Court
rejected the argument saying that fundamental rights cannot be waived).
3 Nar Singh Pal v Union of India, AIR 2000 SC 1401 [LNIND 2000 SC 541] [LNIND 2000 SC 541], Nar Singh Pal v Union of
India, (2000) 3 SCC 589, Nar Singh Pal v Union of India, (2000) 2 SLR 592, 594 (a casual labourer with the department of
telecom had worked continuously for 10 years and had thus acquired the temporary status; he was prosecuted for a criminal
offence but was ultimately acquitted; in the meantime, his services were terminated and he questioned the order of termination
but also accepted retrenchment benefit; the Supreme Court ruled that his service could not have been terminated without a
departmental inquiry and without giving him a hearing; that acceptance of retrenchment benefit by him did not mean that he had
surrendered all his constitutional rights; accordingly, the order of termination was quashed by the Court and he was reinstated
in service).

ADMINISTRATIVE LAW/28. WAIVER/(2) WAIVER OF RIGHTS/[005.327] Statutory rights
[005.327] Statutory rights Whether a statutory right can be waived or not by an individual depends on
whether the statute has conferred rights and privileges exclusively on the person involved or on third persons
as well. In must be seen whether waiver by a party denies the benefit solely given to him or third party
interests are also involved. The doctrine of waiver will not apply in the latter case. Even if the benefit accruing
from a statute vests exclusively in the person waiving that right, still the wavier may not be applicable on the
grounds of public policy, public interest or public morality. Considerations of public policy in disallowing
waiver are more important than those of individual benefit1.
A mandatory provision can only be waived if it is not conceived in public interest2. There cannot be a waiver
of a statutory right if there is a mistake of law on part of both the parties3.
1 The Director of Inspection of Income Tax (Investigation), New Delhi v Pooran Mall & Sons AIR 1975 SC 67 [LNIND 1974 SC
283] [LNIND 1974 SC 283] [LNIND 1974 SC 283], The Director of Inspection of Income Tax (Investigation), New Delhi v Pooran
Mall & Sons (1975) SCC (Tax) 446; Murlidhar Aggarwal v State of Uttar Pradesh AIR 1974 SC 1924 [LNIND 1974 SC 202]
[LNIND 1974 SC 202] [LNIND 1974 SC 202], Murlidhar Aggarwal v State of Uttar Pradesh (1974) 2 SCC 472, Murlidhar
Aggarwal v State of Uttar Pradesh [1975] 1 SCR 575 [LNIND 1974 SC 202] [LNIND 1974 SC 202] [LNIND 1974 SC 202] (the
question of waiver by a tenant of a statutory right given to him by Uttar Pradesh (Temporary) Control of Rent and Eviction Act
1947 s 3 arose; section 3 of the Act provided that no suit would be filed by a landlord against a tenant for his eviction without the
permission of the district magistrate; an agreement between the parties, however, provided that no party would claim the benefit
of that Act; the landlord filed a suit for eviction of the tenant without taking the permission of the district magistrate; the court
posed the question whether s 3 was enacted for the benefit of the tenants or whether there was a public policy underlying it
which precluded a tenant from waiving its benefit; it was held that s 3 was based on public policy and was intended to protect
the weaker section of the community with a view to ultimately protecting the interest of the community in general by creating
equality of bargaining power and thus, the statutory right could not be waived); see also Lachoo Mal v Radhey Shyam AIR
1971 SC 2213 [LNIND 1971 SC 119] [LNIND 1971 SC 119] [LNIND 1971 SC 119], Lachoo Mal v Radhey Shyam (1971) SCD
407 [LNIND 1971 SC 119] [LNIND 1971 SC 119] [LNIND 1971 SC 119], Lachoo Mal v Radhey Shyam (1971) UJ 343 (such
provisions of a Rent Control Act as are for the benefit of the landlord can be waived by him as he is not in the same weak
bargaining position as a tenant). As to the meaning of waiver see [005.325]
2 Dhirendra Nath Gorai v Sudhir Chandra Ghosh AIR 1964 SC 1300 [LNIND 1964 SC 58] [LNIND 1964 SC 58] [LNIND 1964
SC 58], Dhirendra Nath Gorai v Sudhir Chandra Ghosh [1963] 1 SCR 1001, Dhirendra Nath Gorai v Sudhir Chandra Ghosh
(1964) 1 SCWR 524.
3 State of Kerala v Aluninium Industries Ltd (1965) 15 STC 689 SC (the petitioners filed their sales tax return showing their
taxable turnover and paid the tax accordingly; later, they realised that some part of the turnover was not taxable under the
Constitution and so they applied for refund; the government refused to refund the money taking the plea of waiver against the
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petitioners; it was held that there could be no question of waiver when the mistake of law was common to both the parties; the
petitioners had not raised the question relating to exemption of the turnover under the Constitution and the sales tax officer did
not have any occasion to consider it); See contra Central Camera Co Ltd v Government of Madras (1971) 27 STC 112 [LNIND
1970 MAD 9] [LNIND 1970 MAD 9] [LNIND 1970 MAD 9] (Mad).

ADMINISTRATIVE LAW/28. WAIVER/(2) WAIVER OF RIGHTS/[005.328] Waiver of natural justice
[005.328] Waiver of natural justice Waiver may be implied if the party or his legal representative is aware
of the disqualification of the decision-maker and acquiesced in the proceedings by failing to object at the
earliest practicable opportunity1.
If the initial notice is bad, acquiescence by the party concerned does not preclude him from subsequently
contesting it2.
The rule of audi alteram partem3 embodies the principle that a reasonable opportunity of being heard is to be
given to the interested person. This requirement is satisfied if inspite of an adequate notice by the authority
to the aggrieved to present his case, he does not come forward to take advantage of the opportunity as he
may waive his right to do so4.
If the relevant Act specifically provides for an oral hearing5, the demand for such a hearing may not be
necessary6. However, if the relevant statute is silent on this point, then the demand for such a hearing may
be necessary. In the absence of such a demand, failure to give an oral hearing may not amount to a breach
of natural justice7.
1 (the alleged bias in a member of the tribunal does not render the proceedings invalid if it is shown that the objection against
the presence of the member in question had not been taken by the party even though the party knew about the circumstances
giving rise to the allegations about the alleged bias and was aware of his right to challenge the presence of the member in the
tribunal; waiver cannot always and in every case be inferred merely from the failure of the party to take the objection; it can be
inferred only if and after it is shown that the party knew about the relevant facts and was aware of his right to take the objection
in question); Rustom Cavasjee Cooper v Union of India AIR 1970 SC 564, Rustom Cavasjee Cooper v Union of India (1970) 1
SCC 248, Rustom Cavasjee Cooper v Union of India (1970) 1 SCJ 564 (where the Supreme Court Bench adjudicating upon the
constitutional validity of the statute nationalising the 14 major banks had two judges holding some shares in some of the
nationalised banks; the Attorney General, on behalf of the Government of India, waived the objection against those Judges
hearing the case; accordingly, the Bench proceeded with the hearing).
2 Munnich v Godstone Rural District Council (1966) 1 WLR 427.
3 As to audi alteram partem see [005.054].
4 Farid Ahmad Abdul Samad v The Municipal Corporation of the City of Ahmedabad AIR 1976 SC 2095 [LNIND 1976 SC 240]
[LNIND 1976 SC 240] [LNIND 1976 SC 240], Farid Ahmad Abdul Samad v The Municipal Corporation of the City of Ahmedabad
(1976) 3 SCC 719 [LNIND 1976 SC 240] [LNIND 1976 SC 240] [LNIND 1976 SC 240], Farid Ahmad Abdul Samad v The
Municipal Corporation of the City of Ahmedabad (1976) 2 SCWR 172(when in a disciplinary proceeding under the Constitution
of India art 311, an opportunity was given to a civil servant to explain his conduct and he did not avail of the same, it was held
that the principles of natural justice were not violated if the inquiry was conducted ex parte); Shahoodul Haque v The Registrar,
Co op Societies, Bihar AIR 1974 SC 1896, Shahoodul Haque v The Registrar, Co op Societies, Bihar (1974) Lab IC 1276,
Shahoodul Haque v The Registrar, Co op Societies, Bihar (1974) 2 Serv LR 547.
6 State of Assam v Gauhati Municipality AIR 1976 SC 1398 [LNIND 1976 SC 129] [LNIND 1976 SC 129] [LNIND 1976 SC
129]; Mayes v Mayes [1971] 1 WLR 679, 683.
7 Mayes v Mayes [1971] 1 WLR 679, 683 (a rule of natural justice which goes to the very basis of judicature cannot be waived);
Tan Boon Chee, David v Medical Council of Singapore [1980] 2 MLJ 116 (on the question as to whether there was a waiver of
the breach of natural justice because the appellant who was present at the hearing with his counsel failed to raise any objection
then and there and allowed the proceedings to continue, the court answered in the negative; the breaches of natural justice in
the case were so fundamental that they could not be waived; it was a clear breach of natural justice for a member of the Council
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to participate in a decision without hearing all the evidence and the submissions made; the principles of natural justice having
been violated, the decision of the Council could not be allowed to stand).

ADMINISTRATIVE LAW/28. WAIVER/(3) LACK OF JURISDICTION AND ULTRA VIRES/[005.329]
Generally
[005.329] Generally An ultra vires act is void and it cannot be validated by an individual through waiver or
acquiescence. Waiver cannot cure the defect of jurisdiction where the authority lacks inherent jurisdiction in
the matter.
A waiver cannot confer on a tribunal, with limited statutory jurisdiction, any power to act beyond that
jurisdiction nor can it estop the consenting party from subsequently maintaining that such a tribunal has
acted without jurisdiction.
While a party cannot waive a jurisdictional defect, he can waive an objection based on an irregular exercise
of jurisdiction1.
1 Superintendent of Taxes, Dhubri v Onkarmal Nathmal Trust AIR 1975 SC 2065 [LNIND 1975 SC 191] [LNIND 1975 SC 191]
[LNIND 1975 SC 191], Superintendent of Taxes, Dhubri v Onkarmal Nathmal Trust (1976) 1 SCC 766 [LNIND 1975 SC 191]
[LNIND 1975 SC 191] [LNIND 1975 SC 191], Superintendent of Taxes, Dhubri v Onkarmal Nathmal Trust [1975] Supp SCR
365; AC Jose v Sivan Pillai AIR 1984 SC 921 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66], AC Jose v Sivan
Pillai (1984) 2 SCC 656 [LNIND 1984 SC 66] [LNIND 1984 SC 66] [LNIND 1984 SC 66], AC Jose v Sivan Pillai (1984) UJ 558
(in a few constituencies in Kerala, at the time of the election to the State Legislature, the Election Commission ordered casting
of votes through mechanical appliances; the appellant, who was a candidate, was present at the meetings when the
Commission took this decision but he raised no objection thereto at the time; later, when he was defeated at the election, he
challenged the order of the Election Commission as ultra vires the Commission; the plea of waiver was raised against him
insofar as he had not opposed the introduction of this process though he was present at the meeting personally; the Supreme
Court held the argument wholly untenable and held that there could not be any estoppel against a constitutional or statutory
provision; that whether or not the appellant agreed or participated in the meeting which was held before introduction of the
voting machines, if such a process was not permissible or authorised by law he could not be estopped from challenging the
same); Bar Council of Delhi v Surijeet Singh AIR 1980 SC 1612 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC
224], Bar Council of Delhi v Surijeet Singh (1980) 4 SCC 211 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC
224], Bar Council of Delhi v Surijeet Singh [1980] 3 SCR 946 [LNIND 1980 SC 224] [LNIND 1980 SC 224] [LNIND 1980 SC
224] (the petitioner was a candidate at the election for membership of the Bar Council of Delhi; he was defeated and then he
challenged the election on the ground that the names of 2000 voters out of a total of 5000 voters were wrongly excluded; the
Supreme Court held that the electoral roll was prepared according to an invalid statutory provision and so the whole election
was vitiated; the petitioner could not be estopped from challenging a void election merely because he took part in the election
by standing as a candidate or by exercising his franchise; there was no question of approbation and reprobation at the same
time in such a situation).

ADMINISTRATIVE LAW/29. PUBLIC INTEREST LITIGATION/[005.330] Introduction
[005.330] Introduction The theory underlying public interest litigation (PIL) is that if public duties are to be
enforced or rights of the people are to be protected, then the initiative and zeal of public spirited persons or
organisations must be harnessed by enabling them to file writ petitions even though they may not have been
directly injured in their own rights. The interest affected may be so diffused and fragmented that the injury to
each person may be very small and there may not be any incentive to an individual to undertake court action
to vindicate his own interest or grievance. Thus, PIL is allowed to vindicate societal interests1.
The grievance in a public interest action is about the content and conduct of governmental action in relation
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to the constitution or statutory rights of segments of society and in certain circumstances the conduct of
government policies2.
The proceedings in a PIL intends to vindicate and effectuate the public interest by prevention of violation of
rights of that segment of the society which, owing to poverty, ignorance and social and economic
disadvantages, cannot themselves assert those rights. Thus, the technique of PIL serves to provide an
effective remedy to enforce group rights and interests3.
The court may initiate PIL proceedings suo motu and it is not always necessary to file a formal writ petition
before the court4. Through PIL, the courts play their role in a constructive manner with a view to promote the
welfare of the people and strengthen the democratic fabric in the country5. However, public interest is a
weapon that has to be used with great care and circumspection. The judiciary must be careful to see that
under the guise of redressing a public grievance it does not encroach upon the sphere reserved by the
Constitution for the Executive and the Legislature. Thus, a letter may be treated as a writ petition only if it is
addressed by the aggrieved person or by a public-spirited individual. Otherwise, the court is not bound to
treat every letter as a writ petition6.
1 SP Gupta v Union of India AIR 1982 SC 149, SP Gupta v Union of India (1981) Supp SCC 87, SP Gupta v Union of India
(1982) Rajdhani LR 389. See generally [245]PUBLIC INTEREST LITIGATION.
A few typical PIL cases are as follows:
(1) Rural Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh AIR 1985 SC 652 [LNIND 1985
SC 82] [LNIND 1985 SC 82] [LNIND 1985 SC 82], Rural Litigation and Entitlement Kendra, Dehradun v State
of Uttar Pradesh (1985) 2 SCC 431 [LNIND 1985 SC 82] [LNIND 1985 SC 82] [LNIND 1985 SC 82], Rural
Litigation and Entitlement Kendra, Dehradun v State of Uttar Pradesh (1985) 2 Cur CC 70 (commenting on the
case, the court observed the case brings into sharp focus the conflict between development and conservation
and services to emphasise the need for reconciling the two in the larger interest of the country).
(2) Chaitanya Kumar v State of Karnataka AIR 1986 SC 825 [LNIND 1986 SC 115] [LNIND 1986 SC 115] [LNIND
1986 SC 115], Chaitanya Kumar v State of Karnataka (1986) 2 SCC 594 [LNIND 1986 SC 115] [LNIND 1986
SC 115] [LNIND 1986 SC 115], Chaitanya Kumar v State of Karnataka (1986) 2 SCJ 301(a contract awarded
by the state government to a few persons was set aside; the court observed that it cannot close its eyes and
persuade itself to uphold mischievous executive actions which have been so exposed; when arbitrariness and
perversion are writ large and brought out clearly, the court cannot shirk its duty and refuse its writ; that
advancement of the public interest and avoidance of the public mischief are the paramount consideration).
(3) Gaurav Jain v Union of India AIR 1997 SC 3021 [LNIND 1997 SC 917] [LNIND 1997 SC 917] [LNIND 1997
SC 917], Gaurav Jain v Union of India (1997) 8 SCC 114 [LNIND 1997 SC 917] [LNIND 1997 SC 917] [LNIND
1997 SC 917], Gaurav Jain v Union of India (1997) 2 SCJ 334 (a question was raised concerning rehabilitation
of the children of prostitutes and the court issued suitable directions for the purpose).
(4) Common Cause, a Registered Society v Union of Indian AIR 1999 SC 2979 [LNIND 1999 SC 637] [LNIND
1999 SC 637] [LNIND 1999 SC 637], Common Cause, a Registered Society v Union of Indian (1999) 6 SCC
667 [LNIND 1999 SC 637] [LNIND 1999 SC 637] [LNIND 1999 SC 637], Common Cause, a Registered
Society v Union of Indian (1999) 5 JT 237; Shiv Sagar Tiwari v Union of India AIR 1997 SC 1483 [LNIND 1996
SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873], Shiv Sagar Tiwari v Union of India (1996) 6 SCC
558 [LNIND 1996 SC 1873] [LNIND 1996 SC 1873] [LNIND 1996 SC 1873], Shiv Sagar Tiwari v Union of India
(1997) 1 UJ SC 1; Common Cause, A Registered Society v Union of India AIR 1997 SC 1886 [LNIND 1996
SC 2843] [LNIND 1996 SC 2843] [LNIND 1996 SC 2843], A Registered Society v Union of India (1996) 6 SCC
(5) Vineet Narain v Union of India AIR 1998 SC 889 [LNIND 1997 SC 1657] [LNIND 1997 SC 1657] [LNIND 1997
SC 1657], Vineet Narain v Union of India (1998) 1 SCC 226 [LNIND 1997 SC 1657] [LNIND 1997 SC 1657]
[LNIND 1997 SC 1657], Vineet Narain v Union of India (1998) 2 SCJ 322(a writ petition in public interest was
field in the Supreme Court under the Constitution of India art 32, to raise the important question of impartiality,
independence and integrity of the Central Bureau of Investigation; the court issued detailed directions for the
purpose).
(6) M C Mehta v Union of India AIR 1987 SC 1086 [LNIND 1986 SC 539] [LNIND 1986 SC 539] [LNIND 1986 SC
539], 1090, M C Mehta v Union of India (1987) 1 SCC 395 [LNIND 1986 SC 539] [LNIND 1986 SC 539]
[LNIND 1986 SC 539], M C Mehta v Union of India [1987] 1 SCR 819 [LNIND 1986 SC 539] [LNIND 1986 SC
539] [LNIND 1986 SC 539](gas escaped from a factory engaged in the production of chemicals and fertilisers;
applications for compensation to those affected by the gas were filed against the company in the Supreme
Court by the Delhi Legal Aid and Advice Board and the Delhi Bar Association under the Constitution of India
art 32 read with art 21; the Supreme Court held that the applications were maintainable; the Supreme Court
asserted that art 32 lays a constitutional obligation on the Supreme Court to protect the fundamental rights of
the people; it is in realisation of this constitutional obligation that the Supreme Court has innovated new
methods and strategies for enforcement of the fundamental rights, particularly, in the case of the poor and the
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disadvantaged who are denied their basic human rights; that procedure is merely a hand maiden of justice and
it must not stand in the way of access to justice to the weaker sections of the society); Centre for Public
Interest Litigation v Union of India (1995) Supp 3 SCC 382; N Parthasarathy v Controller of Capital Issues AIR
1991 SC 1420 [LNIND 1991 SC 219] [LNIND 1991 SC 219] [LNIND 1991 SC 219], N Parthasarathy v
Controller of Capital Issues AIR 1991 SCW 1119.
2 Ranji Thomas v Union of India (2000) 2 SCC 81; Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India AIR
1981 SC 344, Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India (1981) 1 SCC 568 [LNIND 1980 SC 455]
[LNIND 1980 SC 455] [LNIND 1980 SC 455], Fertilizer Corporation, Kamgar Union, (Regd) Sindri v Union of India [1981] 2 SCR
52.
3 Sheela Barse v Union of India AIR 1988 SC 2211, Sheela Barse v Union of India (1988) 4 SCC 226, Sheela Barse v Union of
India (1988) 3 JT 765.
4 MC Mehta v Union of India AIR 1987 SC 1086 [LNIND 1986 SC 539] [LNIND 1986 SC 539] [LNIND 1986 SC 539], 1090, MC
Union of India (1987) JT 1 (the court has reiterated that letters addressed to individual Judges must not be rejected merely
because they are not couched in the preferred form of address, that is, to the court or to the Chief Justice and his companion
Judges; similarly, letters must not be rejected on the ground that they are not supported by an affidavit; the court must not adopt
a rigid stance in this respect otherwise access to the court will become difficult for the poor and disadvantaged persons as well
as even for official action groups); Bandhua Mukti Morcha v Union of India AIR 1984 SC 802 [LNIND 1983 SC 564] [LNIND
1983 SC 564] [LNIND 1983 SC 564], Bandhua Mukti Morcha v Union of India (1984) 3 SCC 161 [LNIND 1983 SC 564] [LNIND
1983 SC 564] [LNIND 1983 SC 564], Bandhua Mukti Morcha v Union of India [1984] 2 SCR 67 [LNIND 1983 SC 564] [LNIND
1983 SC 564] [LNIND 1983 SC 564]; Ram Kumar Misra v State of Bihar AIR 1984 SC 537 [LNIND 1983 SC 262] [LNIND 1983
SC 262] [LNIND 1983 SC 262], Ram Kumar Misra v State of Bihar (1984) 2 SCC 451, Ram Kumar Misra v State of Bihar [1983]
3 SCR 1011 [LNIND 1983 SC 262] [LNIND 1983 SC 262] [LNIND 1983 SC 262]; Neeraja Chowdhary v State of Madhya
Pradesh AIR 1984 SC 1099, Neeraja Chowdhary v State of Madhya Pradesh (1984) 3 SCC 243, Neeraja Chowdhary v State of
Madhya Pradesh (1984) 1 Scale 874; Labourers Working on Salal Hydro Project v State of Jammu & Kashmir AIR 1984 SC
177 [LNIND 1983 SC 75] [LNIND 1983 SC 75] [LNIND 1983 SC 75], Labourers Working on Salal Hydro Project v State of
Jammu & Kashmir (1983) 2 SCC 181 [LNIND 1983 SC 75] [LNIND 1983 SC 75] [LNIND 1983 SC 75], Labourers Working on
Salal Hydro Project v State of Jammu & Kashmir [1983] 2 SCR 473 [LNIND 1983 SC 75] [LNIND 1983 SC 75] [LNIND 1983 SC
75] (a news item was published in a newspaper regarding the pitiable conditions in which the migrant labourers working on the
Salal Project were working; the People's Union for Democratic Rights thereupon addressed a letter to a Supreme Court Judge
drawing his attention to the news item; the letter was placed before a Bench of the Supreme Court; the letter was treated as a
writ petition; accordingly, hearing were started and the Court provided relief to the labourers in question); Veena Sethi v State
of Bihar AIR 1983 SC 339, Veena Sethi v State of Bihar (1982) 2 SCC 583, Veena Sethi v State of Bihar (1982) UJ SC 543.
Sheela Barse v State of Maharashtra AIR 1983 SC 378 [LNIND 1983 SC 57] [LNIND 1983 SC 57] [LNIND 1983 SC 57](a
journalist, wrote a letter to the Supreme Court complaining of the custodial violence on women in the police lock up and the
court treated the letter as formal writ petition); Prem Shankar Shukla v Delhi Administration AIR 1980 SC 1535 [LNIND 1980
SC 215] [LNIND 1980 SC 215] [LNIND 1980 SC 215], Prem Shankar Shukla v Delhi Administration (1980) 3 SCC 562, Prem
Shankar Shukla v Delhi Administration [1980] 3 SCR 855 [LNIND 1980 SC 215] [LNIND 1980 SC 215] [LNIND 1980 SC 215].
5 Padma v Hiralal Motilal Desarda AIR 2002 SC 3252 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621],
Padma v Hiralal Motilal Desarda (2002) 7 SCC 564 [LNIND 2002 SC 1621] [LNIND 2002 SC 1621] [LNIND 2002 SC 1621],
Padma v Hiralal Motilal Desarda (2002) 9 SRJ 94 (while hearing a public interest litigation, the courts are obliged to see the
conduct and activities of a public body constituted with the avowed object of serving the society and to see that its activities
bear no colour except being transparent, are guided with the object of public good and are within the four corners of law
governing the same).
6 State of Himachal Pradesh v A Parent of a Student of Medical College, Shimla AIR 1985 SC 910 [LNIND 1985 SC 123]
[LNIND 1985 SC 123] [LNIND 1985 SC 123], State of Himachal Pradesh v A Parent of a Student of Medical College, Shimla
(1985) 3 SCC 169 [LNIND 1985 SC 123] [LNIND 1985 SC 123] [LNIND 1985 SC 123], State of Himachal Pradesh v A Parent of
a Student of Medical College, Shimla (1985) 2 SCWR 48.

ADMINISTRATIVE LAW/29. PUBLIC INTEREST LITIGATION/[005.331] Locus standi
[005.331] Locus standi There is no limitation that the fundamental right sought to be enforced must belong
to the very person who seeks to move the court1. Whenever there is a violation of a fundamental right, any
one can move the Supreme Court for the enforcement of such fundamental right. Therefore, whenever there
is violation of a fundamental right of any class of persons who because of poverty or disability or socially or
economically disadvantaged position cannot themselves take resort to the court, a member of the public can
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come forward to espouse their causes 2. This is in dilution of the traditional rule of standing wherein only the
person directly aggrieved could take recourse to the court. The position presently is that any member of the
public, having sufficient interest in the cause being espoused by him, can maintain an action for judicial
redress for public injury arising from breach of public duty or from violation of some provision of the
Constitution or of some law and seek enforcement of the public duty and observance of such constitutional
or legal provision3.
However, there are two restrictions in this regard:
(1) a complete stranger having no interest in the cause he is seeking to espouse cannot invoke a
PIL;
(2) personal interest cannot be enforced in the garb of PIL4.
In order to utilise the initiative and zeal of public minded persons and organisations in enforcing public duties
and protecting the diffused rights and interests, the tool of PIL was found to be appropriate. Thus, such
interest groups are now allowed to move the court and act for a general or group interest, even though, they
may not be directly injured in their own rights5.
1 See generally [205]LIMITATION OF ACTIONS.
564]; J Mohapatra v State of Orissa AIR 1984 SC 1572 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J
Mohapatra v State of Orissa (1984) 4 SCC 103 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386], J
Mohapatra v State of Orissa [1985] 1 SCR 322 [LNIND 1984 SC 386] [LNIND 1984 SC 386] [LNIND 1984 SC 386] (today the
law with respect to locus standi has considerably advanced and in the case of public interest litigation, it is not necessary that a
petitioner must himself have a personal interest in the matter); S P Gupta v President of India AIR 1982 SC 149, S P Gupta v
President of India (1981) Supp SCC 87, S P Gupta v President of India [1982] 2 SCR 365; Maharaj Singh v State of Uttar
Pradesh AIR 1976 SC 2602 [LNIND 1976 SC 414] [LNIND 1976 SC 414] [LNIND 1976 SC 414], Maharaj Singh v State of Uttar
Pradesh (1977) 1 SCC 155 [LNIND 1976 SC 414] [LNIND 1976 SC 414] [LNIND 1976 SC 414] (locus standi has a larger ambit
in current legal semantics than the accepted, individualistic jurisprudence of old).
3 DS Nakara v Union of India 1983 SC 130, DS Nakara v Union of India (1983) 1 SCC 305 [LNIND 1982 SC 208] [LNIND 1982
SC 208] [LNIND 1982 SC 208], DS Nakara v Union of India (1983) SCC (Lab) 145(a medical practitioner who is interested in
maintaining and promoting public health and an association formed for upholding public causes through litigation can maintain
writ petitions challenging government decision to sell arrack in polythene containers; the grievance projected by the petitioners,
if substantiated, would show that the government action may result in serious damage to public health; the question whether
selling arrack in a polythene sachet is unsafe and a health hazard deserves serious consideration, particularly in the light of the
Constitution of India ; the cause sought to be espoused is a public cause and the petitioners are acting bona fide and, therefore,
they have sufficient interest in the matter to maintain writ petitions); S P Gupta v President of India AIR 1982 SC 149, S P Gupta
v President of India (1981) Supp SCC 87, S P Gupta v President of India [1982] 2 SCR 365; People's Union for Democratic
Rights v Union of India AIR 1982 SC 1473 [LNIND 1982 SC 135] [LNIND 1982 SC 135] [LNIND 1982 SC 135], People's Union
for Democratic Rights v Union of India (1982) 2 SCC 494 [LNIND 1982 SC 135] [LNIND 1982 SC 135] [LNIND 1982 SC 135],
People's Union for Democratic Rights v Union of India (1982) 2 Lab LJ 454.
4 Kunwar Pal Singh v State of Uttar Pradesh AIR 2002 All 27 [LNIND 2001 ALL 924] [LNIND 2001 ALL 924] [LNIND 2001 ALL
924], Kunwar Pal Singh v State of Uttar Pradesh (2002) AIHC 851, Kunwar Pal Singh v State of Uttar Pradesh (2001) All LJ
2690.
5 M C Mehta v Union of India AIR 1999 SC 291 [LNIND 1998 SC 909] [LNIND 1998 SC 909] [LNIND 1998 SC 909], M C
Mehta v Union of India AIR 1998 SCW 3811, M C Mehta v Union of India (1998) 8 SCC 206 [LNIND 1998 SC 909] [LNIND
1998 SC 909] [LNIND 1998 SC 909]; MC Mehta v Union of India AIR 1998 SC 2340 [LNINDORD 1998 SC 2] [LNINDORD
1998 SC 2] [LNINDORD 1998 SC 2], MC Mehta v Union of India AIR 1998 SCW 2311, MC Mehta v Union of India (1998) 6
SCC 60 [LNINDORD 1998 SC 2] [LNINDORD 1998 SC 2] [LNINDORD 1998 SC 2]; Indian Councilfor Enviro Legal Action v
Union of India AIR 1996 SC 1446 [LNIND 1996 SC 353] [LNIND 1996 SC 353] [LNIND 1996 SC 353], Indian Councilfor Enviro
Legal Action v Union of India (1996) 3 SCC 212 [LNIND 1996 SC 353] [LNIND 1996 SC 353] [LNIND 1996 SC 353], Indian
Councilfor Enviro Legal Action v Union of India (1996) 2 JT 196; DD Vyas v Ghaziabad Development Authority, Ghaziabad AIR
1993 All 58, DD Vyas v Ghaziabad Development Authority, Ghaziabad (1993) All LJ 86, DD Vyas v Ghaziabad Development
Authority, Ghaziabad (1992) All CJ 705; Bangalore Medical Trust v BS Mundappa AIR 1991 SC 1902 [LNIND 1991 SC 315]
[LNIND 1991 SC 315] [LNIND 1991 SC 315], Bangalore Medical Trust v BS Mundappa (1991) 2 Scale 131 [LNIND 1991 SC
315] [LNIND 1991 SC 315] [LNIND 1991 SC 315], Bangalore Medical Trust v BS Mundappa (1991) 3 JT 172; MC Mehta v
Union of India AIR 1991 SC 1132 [LNIND 1991 SC 147] [LNIND 1991 SC 147] [LNIND 1991 SC 147], MC Mehta v Union of
India (1991) 2 SCC 137; Subhash Kumar v State of Bihar AIR 1991 SC 420 [LNIND 1991 SC 13] [LNIND 1991 SC 13] [LNIND
483
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1991 SC 13], Subhash Kumar v State of Bihar (1991) 1 SCC 598 [LNIND 1991 SC 13] [LNIND 1991 SC 13] [LNIND 1991 SC
13], Subhash Kumar v State of Bihar [1991] 1 SCR 5 [LNIND 1991 SC 13] [LNIND 1991 SC 13] [LNIND 1991 SC 13];
Sachidanand Pandey v State of West Bengal AIR 1987 SC 1109 [LNIND 1987 SC 159] [LNIND 1987 SC 159] [LNIND 1987 SC
159], Sachidanand Pandey v State of West Bengal (1987) 2 SCC 295 [LNIND 1987 SC 159] [LNIND 1987 SC 159] [LNIND
1987 SC 159], Sachidanand Pandey v State of West Bengal (1987) 2 SCJ 70 [LNIND 1987 AP 472] [LNIND 1987 AP 472]
[LNIND 1987 AP 472]; MC Mehta v Union of India AIR 1987 SC 965 [LNIND 1986 SC 40] [LNIND 1986 SC 40] [LNIND 1986
SC 40], MC Mehta v Union of India (1986) 2 SCC 176 [LNIND 1986 SC 40] [LNIND 1986 SC 40] [LNIND 1986 SC 40], MC
Mehta v Union of India (1986) 1 SCJ 383; MC Mehta v Union of India AIR 1988 SC 1037 [LNIND 1987 SC 663] [LNIND 1987
SC 663] [LNIND 1987 SC 663], MC Mehta v Union of India (1987) 4 SCC 463 [LNIND 1987 SC 663] [LNIND 1987 SC 663]
[LNIND 1987 SC 663], MC Mehta v Union of India (1988) 1 UJ 75; Rural Litigation Entitlement Kendra, Dehradun v State of
Uttar Pradesh AIR 1985 SC 652 [LNIND 1985 SC 82] [LNIND 1985 SC 82] [LNIND 1985 SC 82], Rural Litigation Entitlement
Kendra, Dehradun v State of Uttar Pradesh (1985) 2 SCC 431 [LNIND 1985 SC 82] [LNIND 1985 SC 82] [LNIND 1985 SC 82],
Rural Litigation Entitlement Kendra, Dehradun v State of Uttar Pradesh (1985) UJ 594; Hussainara Khatoon v Home Secretary,
State of Bihar AIR 1979 SC 1360, Hussainara Khatoon v Home Secretary, State of Bihar (1980) 1 SCC 81, Hussainara
Khatoon v Home Secretary, State of Bihar [1979] 1 SCR 169 (a retired Inspector General of Police and a member of the
National Police Commission published two articles in the India Express, an English Daily, describing the plight of undertrials in
Bihar Jails; a lawyer felt so outraged by the revelations made in these articles that she moved a writ of habeas corpus in the
Supreme Court based on these articles on behalf of the undertrials).

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(1) GENERAL REMEDIES/A. UNDER
CIVIL PROCEDURE/[005.332] Introduction
[005.332] Introduction A person may vindicate his legal right against an administrative authority by way of
filing a civil suit in a court claiming proper relief. The person may resort to this remedy if he desires a relief
that he may not possibly get by invoking the writ jurisdiction. For instance, a writ may not be available to
enforce payment of money or a claim for damages accruing from a civil liability as such matters may be
determined through a civil suit1. A suit may also be preferred against a writ petition if determination of a claim
against the administration involves decision on questions of fact on the basis of evidence produced by the
concerned parties. The high courts are extremely reluctant to undertake such a task in writ proceedings2.
The general rule of law is that when an infringement of a legal right is alleged, a cause of action arises and,
unless there is a bar to the entertainment of the suit, the ordinary civil courts are bound to entertain the
claim3. A civil court has inherent power to decide the question of its own jurisdiction4. The courts have
jurisdiction to try all suits of a civil nature, excepting suits of which cognisance is either expressly or impliedly
barred5. This reinforces the legal maxim of ubi jus ibi remedium, that every right has a remedy6. The
jurisdiction of the civil court is all embracing, except to the extent it is excluded by an express provision of law
or by clear intendment arising from such law7. Furthermore, suits against the government for damages,
arising out of a tort or breach of a contract, though may be filed under Code of Civil Procedure 19088, are
subject to a few constitutional restrictions9. If there is no implied or express bar, a civil suit can be filed
against an administrative authority and proper relief sought against it. Suits for injunctions and declarations
under the Specific Relief Act 1963 are some other appropriate remedies to achieve the desired ends10.
1 See the Civil Procedure Code 1908 s 9 (see CIVIL PROCEDURE[65.050])
2 See note 1 above.
3 Thomas v Hotz Hotels Ltd AIR 1969 Del 3 [LNIND 1967 DEL 142] [LNIND 1967 DEL 142] [LNIND 1967 DEL 142].
4 Bhatia Co-olperative Housing Society Ltd v DC Patel AIR 1953 SC 16 [LNIND 1952 SC 64] [LNIND 1952 SC 64] [LNIND
1952 SC 64], Bhatia Co-olperative Housing Society Ltd v DC Patel [1953] SCR 185 [LNIND 1952 SC 64] [LNIND 1952 SC 64]
[LNIND 1952 SC 64], Bhatia Co-olperative Housing Society Ltd v DC Patel (1952) SCJ 642.
5 The Code of Civil Procedure 1908 s 9: a suit may be barred impliedly or expressly by a statute against an administrative
authority; This is because being a statutory provision, its scope can be curtailed by another statutory provision (see CIVIL
PROCEDURE[65.050] and following).
6 PMA Metropolitan v Mohan Mar Marthoma AIR 1995 SC 2001 [LNIND 1995 SC 680] [LNIND 1995 SC 680] [LNIND 1995 SC
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680](the Code of Civil Procedure 1908 s 9 would, therefore, be available in every case where the dispute has the characteristic
of affecting one's rights which are not only civil but of civil nature).
7 Code of Civil Procedure 1908 s 9 makes no distinction between a statutory right or a right arising at common law.
8 See the Civil Procedure Code 1908 s 9 (see CIVIL PROCEDURE [65.050] and following).
9 See [80]CONSTITUTIONAL LAW.
10 Provincial Government of Madras, Represented by District Collector v J S Basappa AIR 1964 SC 1873 [LNIND 1963 SC
261] [LNIND 1963 SC 261] [LNIND 1963 SC 261], Provincial Government of Madras, Represented by District Collector v J S
Basappa [1964] 5 SCR 517 [LNIND 1963 SC 261] [LNIND 1963 SC 261] [LNIND 1963 SC 261], Provincial Government of
Madras, Represented by District Collector v J S Basappa (1964) 15 STC 144 (a suit may be filed for refund of sales tax which
has been paid under a mistake of law). As to when a suit for declarations and injunctions is maintenable or not see
INJUNCTIONS[170.031]-[170.032].

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(1) GENERAL REMEDIES/A. UNDER
CIVIL PROCEDURE/[005.333] Exclusion of suits
[005.333] Exclusion of suits The jurisdiction conferred on the civil courts1 is very expansive. civil courts are
entitled to try all suits of civil nature. This is based on the principle ubi jus ibi remedium2.
However, under Code of Civil Procedure 1908, a civil court cannot try a suit whose cognisance is barred
either expressly or impliedly. Such exclusion is not to be readily inferred and the presumption to be drawn
must be in the favour of existence rather than exclusion of jurisdiction of the civil courts to try civil suits3.
Where the exclusion of the civil court's jurisdiction is expressly provided for, the question whether the statute
in question provides an adequate or sufficient remedy may be relevant but is not, decisive. However, when
exclusion is pleaded as a matter of necessary implication, such considerations are not only important but
may even be decisive4.
In the absence of any express provision in a statute, barring the jurisdiction of the court, an examination of
the statutory provisions may lead to the conclusion that jurisdiction is excluded. In such a case, the court has
to enquire whether the statute provides an adequate and efficacious alternative remedy. If the answer is in
the affirmative, it can be concluded that jurisdiction of the civil court is barred. However, if no such adequate
and effective remedy is provided, then exclusion of jurisdiction cannot be inferred5.
Where jurisdiction of the court is barred expressly or impliedly, the court would nonetheless retain its
jurisdiction to entertain and adjudicate upon the suit provided the plea raised before the court goes to the
root of the matter and would, if upheld, lead to the conclusion that the impugned order is a nullity6.
In order to bar judicial review, the statutes often declare the decision made by a body to be final7. The impact
of such a finality clause is to exclude the jurisdiction of the civil court if the concerned body is entitled to
confer adequate remedy what the civil court would normally do in a suit8. However, the finality clause does
not exclude a case where the provisions of the particular statute have not been complied with9 or the
statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure10. A finality
clause does not bar a civil suit to challenge the ultra vires decision of an authority whose decisions are
declared to be final. Thus, no suit challenging a jurisdictional error can be barred by the concerned
authority11.
An ouster clause cannot bar the jurisdiction of civil court to entertain a suit questioning the constitutionality of
the parent statute and of any action thereunder. The constitution being the fundamental law of the land, the
normal remedy of a suit must be available obtaining redress against the violation of the constitutional
provision12.
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1 Ie under the Code of Civil Procedure 1908 s 9 (see CIVIL PROCEDURE[65.528]).
2 As to the meaning of ubi jus ibi remedium see generally [285]TORT.
3 Dhruv Green Field Ltd v Hukum Singh AIR 2002 SC 2841 [LNIND 2002 SC 477] [LNIND 2002 SC 477] [LNIND 2002 SC
477], Dhruv Green Field Ltd v Hukum Singh (2002) 6 SCC 416 [LNIND 2002 SC 477] [LNIND 2002 SC 477] [LNIND 2002 SC
477], Dhruv Green Field Ltd v Hukum Singh (2002) 3 SCJ 707; State of Andhra Pradesh v Manjeti Laxmi Kantha Rao AIR 2000
SC 2220 [LNIND 2000 SC 587] [LNIND 2000 SC 587] [LNIND 2000 SC 587], State of Andhra Pradesh v Manjeti Laxmi Kantha
Rao (2000) 3 SCC 689 [LNIND 2000 SC 587] [LNIND 2000 SC 587] [LNIND 2000 SC 587], State of Andhra Pradesh v Manjeti
Laxmi Kantha Rao (2000) 3 Scale 61 [LNIND 2000 SC 587] [LNIND 2000 SC 587] [LNIND 2000 SC 587].
4 State of Tamil Nadu v Ramalinga AIR 1986 SC 794 [LNIND 1985 SC 163] [LNIND 1985 SC 163] [LNIND 1985 SC 163],
State of Tamil Nadu v Ramalinga (1985) 4 SCC 10 [LNIND 1985 SC 163] [LNIND 1985 SC 163] [LNIND 1985 SC 163], State of
Tamil Nadu v Ramalinga (1986) UJ 489 (an ouster clause which provides that an order made by a specified authority must be
final and must not be liable to be questioned in any court of law does not exclude the jurisdiction of a civil court in all cases);
Ram Swarup v Shikar Chand AIR 1966 SC 893 [LNIND 1965 SC 305] [LNIND 1965 SC 305] [LNIND 1965 SC 305], Ram
Swarup v Shikar Chand [1966] 2 SCR 55; Kamla Mills Ltd v State of Bombay AIR 1965 SC 1942 [LNIND 1965 SC 147] [LNIND
1965 SC 147] [LNIND 1965 SC 147], Kamla Mills Ltd v State of Bombay [1966] 1 SCR 64 [LNIND 1965 SC 147] [LNIND 1965
SC 147] [LNIND 1965 SC 147], Kamla Mills Ltd v State of Bombay (1965) 16 STC 6133.
477], Dhruv Green Field Ltd v Hukum Singh (2002) 3 SCJ 707 (where a revenue statute provides for a person aggrieved by an
assessment thereunder, a specific remedy to be sought in a particular forum, in a particular way, the remedy must be sought in
that forum in that manner and all other forums and modes of seeking remedy are excluded).
A few cases on implied exclusion of jurisdiction of civil court are as follows:
(1) Som Datta Bukders Ltd v Kanpur Jal Sansthan AIR 2002 All 249 [LNIND 2002 ALL 627] [LNIND 2002 ALL
627] [LNIND 2002 ALL 627], Som Datta Bukders Ltd v Kanpur Jal Sansthan (2002) All CJ 1896, Som Datta
Bukders Ltd v Kanpur Jal Sansthan (2002) 2 All CJ 479; Munshi Ram v Municipal Committee, Chheharta AIR
1979 SC 1250 [LNIND 1979 SC 174] [LNIND 1979 SC 174] [LNIND 1979 SC 174], Munshi Ram v Municipal
Committee, Chheharta (1979) 3 SCC 83 [LNIND 1979 SC 174] [LNIND 1979 SC 174] [LNIND 1979 SC 174],
Munshi Ram v Municipal Committee, Chheharta [1979] 3 SCR 463 [LNIND 1979 SC 174] [LNIND 1979 SC
174] [LNIND 1979 SC 174].
(2) Raja Ram Kumar Bhargav v Union of India AIR 1988 SC 752 [LNIND 1987 SC 1064] [LNIND 1987 SC 1064]
[LNIND 1987 SC 1064], Raja Ram Kumar Bhargav v Union of India (1988) 1 SCC 681 [LNIND 1987 SC 1064]
[LNIND 1987 SC 1064] [LNIND 1987 SC 1064], Raja Ram Kumar Bhargav v Union of India [1988] 2 SCR 352
[LNIND 1987 SC 1064] [LNIND 1987 SC 1064] [LNIND 1987 SC 1064](while considering the provisions of the
Income tax Act 1961, the Supreme Court has held that wherever a right, not pre existing in common law, is
created by statute and that statute itself provides a machinery for the enforcement of the right, both the right
and the remedy having been created unto flatu and finality is intended to result of the statutory proceedings,
then, even in the absence of an exclusionary provision, the civil court's jurisdiction is impliedly barred).
(3) Chandrakant Tukaram Nikam v Municipal Corporation of Ahmedabad AIR 2002 SC 997 [LNIND 2002 SC 103]
[LNIND 2002 SC 103] [LNIND 2002 SC 103], Chandrakant Tukaram Nikam v Municipal Corporation of
Ahmedabad (2002) 2 SCC 542 [LNIND 2002 SC 103] [LNIND 2002 SC 103] [LNIND 2002 SC 103],
Chandrakant Tukaram Nikam v Municipal Corporation of Ahmedabad (2002) 1 UJ SC 526; Rajasthan State
Road Transport Corporation v Krishna Kant AIR 1995 SC 1715 [LNIND 1995 SC 618] [LNIND 1995 SC 618]
[LNIND 1995 SC 618], Rajasthan State Road Transport Corporation v Krishna Kant (1995) 5 SCC 75 [LNIND
1995 SC 618] [LNIND 1995 SC 618] [LNIND 1995 SC 618], Rajasthan State Road Transport Corporation v
Krishna Kant (1995) 2 SCJ 511. On the other hand, when a dispute between a workman and his employer
arises under the general contract law, the civil court has jurisdiction to entertain the same: see ITI Ltd v
Siemens Public Communications Networks Ltd AIR 2002 SC 2308, ITI Ltd v Siemens Public Communications
Networks Ltd (2002) 2 UJ SC 1111, ITI Ltd v Siemens Public Communications Networks Ltd (2002) 4 Scale
655; Bhatia International v Bulk Trading SA AIR 2002 SC 1432 [LNIND 2002 SC 1441] [LNIND 2002 SC 1441]
[LNIND 2002 SC 1441], Bhatia International v Bulk Trading SA (2002) 4 SCC 105 [LNIND 2002 SC 1441]
[LNIND 2002 SC 1441] [LNIND 2002 SC 1441], Bhatia International v Bulk Trading SA (2002) 2 SCJ 420
[LNIND 2002 SC 1441] [LNIND 2002 SC 1441] [LNIND 2002 SC 1441] (while examining a particular provision
of a statute to find out whether the jurisdiction of a court is ousted or not, the principle of universal application
is that ordinarily the jurisdiction may not be ousted, unless the very statutory provision explicitly indicates or
even by inferential conclusion the court arrives at the same when such a conclusion is the only conclusion);
Rajasthan State Road Transport Corporation v Krishna Kant AIR 1995 SC 1715 [LNIND 1995 SC 618] [LNIND
1995 SC 618] [LNIND 1995 SC 618], Rajasthan State Road Transport Corporation v Krishna Kant (1995) 5
SCC 75 [LNIND 1995 SC 618] [LNIND 1995 SC 618] [LNIND 1995 SC 618], Rajasthan State Road Transport
Corporation v Krishna Kant (1995) 2 SCJ 511; Ram Kumar v State of Haryana AIR 1987 SC 2043 [LNIND
1987 SC 604] [LNIND 1987 SC 604] [LNIND 1987 SC 604], Ram Kumar v State of Haryana (1987) Supp SCC
582, Ram Kumar v State of Haryana [1987] 3 SCR 1057 [LNIND 1987 SC 604] [LNIND 1987 SC 604] [LNIND
1987 SC 604]; Sirsi Municipality, by its President, Sirsi v Cecelia Kom Francis Tellis AIR 1973 SC 855 [LNIND
1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16], Sirsi Municipality, by its President, Sirsi v Cecelia Kom
Francis Tellis (1973) 1 SCC 409 [LNIND 1973 SC 16] [LNIND 1973 SC 16] [LNIND 1973 SC 16], Sirsi
486
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Municipality, by its President, Sirsi v Cecelia Kom Francis Tellis (1973) SCC (Lab) 207.
(4) the policy underlying the Industrial Disputes Act 1947 is to provide a speedy, inexpensive and effective forum
for resolution of disputes between the workmen and their employers; the idea is to protect the workman from
being caught into the labyrinth of civil courts; the tribunals created by the Act have power to give a broader
range of remedies than what the civil courts can provide; thus, it is in the interest of the workmen that industrial
disputes are adjudicated in the fora created by the Industrial Disputes Act 1947 and not in a civil court.
477], Dhruv Green Field Ltd v Hukum Singh (2002) 3 SCJ 707; Ram Swarup v Shikar Chand AIR 1966 SC 893 [LNIND 1965
SC 305] [LNIND 1965 SC 305] [LNIND 1965 SC 305], Ram Swarup v Shikar Chand [1966] 2 SCR 55.
7 For instance, the Industrial Disputes Act s 17 declares every award of Labour Court, Industrial Tribunal or National Tribunal as
final.
8 Syed Mohd Baquir El Edroos v State of Gujrat AIR 1981 SC 2016 [LNIND 1981 SC 405] [LNIND 1981 SC 405] [LNIND 1981
SC 405]; Dhulabhai v State of Madhya Pradesh AIR 1969 SC 78 [LNIND 1968 SC 99] [LNIND 1968 SC 99] [LNIND 1968 SC
99]; Bharat Kala Bhandar v Dhamangaon Municipality AIR 1966 SC 249 [LNIND 1965 SC 105] [LNIND 1965 SC 105] [LNIND
1965 SC 105](a suit was field to refund the tax collected by a municipality in violation of the Constitution of India art 276; the
Municipal Act provided a machinery for the assessment of the tax; however, the Supreme Court found the machinery not
efficacious and therefore, ruled that the jurisdiction of the civil court was not excluded).
9 Venkataraman & Co v State of Madras AIR 1966 SC 1089 [LNIND 1965 SC 262] [LNIND 1965 SC 262] [LNIND 1965 SC
262](a suit would be maintainable to question the order of a tribunal created by statute even when its order is, expressly or by
necessary implication, made final, if the said tribunal abuses its power or does not act under the Act but in violation of its
provisions).
10 Pabbojan Tea Co v Dy Comr AIR 1968 SC 271 [LNIND 1967 SC 236] [LNIND 1967 SC 236] [LNIND 1967 SC 236];
Secretary of State v Mask & Co AIR 1940 PC 105 [LNIND 1940 PC 9] [LNIND 1940 PC 9] [LNIND 1940 PC 9](where it was
stated that the jurisdiction of the civil courts would not be excluded where the statutory tribunal had not acted in conformity with
the fundamental principles of judicial procedure).
11 Surajmal Banshindhar v Muncipal Board Ganganagar AIR 1977 SC 246; Bharat Kala Bhandar v Dhamangoan Municipality
AIR 1966 SC 249 [LNIND 1965 SC 105] [LNIND 1965 SC 105] [LNIND 1965 SC 105]; Poona Municipility v Dattaraya AIR 1965
SC 555 [LNIND 1964 SC 174] [LNIND 1964 SC 174] [LNIND 1964 SC 174]; Anisminic Ltd v Foreign Compensation
Commission, (1969) 2 WLR 163.
12 Venkataraman & Co v State of Madras AIR 1966 SC 1089 [LNIND 1965 SC 262] [LNIND 1965 SC 262] [LNIND 1965 SC
262](a suit would be maintainable for refund of sales tax collected under a statutory provision later declared to be
unconstitutional); Dhulabhai v State of Madhya Pradesh AIR 1969 SC 78 [LNIND 1968 SC 99] [LNIND 1968 SC 99] [LNIND
1968 SC 99](the ouster clause read that an assessment made or order passed by the authorities under the Act or the rules
made there under must not be called in question in any court; the state government imposed sales tax on sales by importers of
certain commodities by issuing notifications under the relevant statute; these notifications were held to be unconstitutional under
the Constitution of India art 301; the assessee then filed civil suits claiming refund of the tax paid by them; the Supreme Court
ruled that the suit for refund would lie in spite of the ouster clause; the court maintained that the question of ultra vires of a law
would always be open to the civil courts; that a finality clause could not mean that even void or invalid laws must be enforced
without a remedy; that when a provision is already declared unconstitutional or the constitutionality of the provision is to be
challenged, a suit is open).

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(1) GENERAL REMEDIES/B.
JURISDICTION OF HIGH COURTS/[005.334] Generally
[005.334] Generally A high court may call for the record of any case decided by any court subordinate to the
high court and make such order as it thinks fit if the subordinate court: (1) has acted outside its jurisdiction; or
(2) has failed to exercise its jurisdiction; or (3) has acted illegally; or (4) has acted with material irregularity in
exercising its jurisdiction1. The provision is operative only when no appeal lies from the subordinate court to
the high court2. The power conferred on the high court3 is in the nature of power of superintendence of high
courts over subordinate courts, to keep them within the bounds of their jurisdiction4.
A claims tribunal constituted under Motor Vehicles Act 19885 is a civil court for purposes of Code of Civil
Procedure 19086 and therefore, a revision against its order lies under it7. However, a high court may take a
487
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contrary view8. For instance, the authority under the Payment of Wages Act 1936 has been held not to be
subordinate to a high court9. Similarly, under the Workmen's Compensation Act 1923, the Commissioner is
not a body subordinate to a high court and thus, an order passed by the commissioner would not be
reviewable by the high court10. This however, is not a general rule11. Furthermore, a high court can always
exercise review power over such bodies12. A high court cannot interfere when the order is within the
jurisdiction of the subordinate court, even if the order is right or wrong or in accordance with law or not,
unless it has exercised its jurisdiction illegally or with material irregularity13.
1 See the Code of Civil Procedure s 115 (see CIVIL PROCEDURE[65.796] and following).
2 The Law Commission of India (54th report, 1976): in view of the Constitution of India art 227, it is no longer necessary to
retain Code of Civil Procedure s 115 and its omission is recommended.
The Jt. Committee of Parliament, on the other hand, felt that, in spite of the alternative remedy available in the Constitution of
India art 227, the Code of Civil Procedure 1908 s 115 ought to be retained as it serves a useful purpose as an inexpensive and
easy remedy.
3 Ie the power conferred by the Code of Civil Procedure 1908 s 115 (see CIVIL PROCEDURE[65.796] and following).
4 ITI Ltd v Siemens Public Communications Networks Ltd AIR 2002 SC 2308, ITI Ltd v Siemens Public Communications
Networks Ltd (2002) 4 Scale 655, ITI Ltd v Siemens Public Communications Networks Ltd (2002) 2 UJ 1111.
5 Ie under the Motor Vehicles Act 1988 s 110.
6 Ie under the Code of Civil Procedure 1908 s 115 (see CIVIL PROCEDURE[65.796] and following).
7 See generally [220] motor vehicles.
8 New India Insurance Co Ltd, Bhopal v Refeeka Sultana AIR 2001 MP 116 [LNIND 2000 MP 499] [LNIND 2000 MP 499]
[LNIND 2000 MP 499], New India Insurance Co Ltd, Bhopal v Refeeka Sultana (2001) 1 ACJ 648, New India Insurance Co Ltd,
Bhopal v Refeeka Sultana (2000) 3 MP LJ 561 (no revision lies from the claims tribunal); Rajasthan State Road Transport
Corporation, Jaipur v Kalawati AIR 1977 Raj 236, Rajasthan State Road Transport Corporation, Jaipur v Kalawati (1977) Raj
LW 87, Rajasthan State Road Transport Corporation, Jaipur v Kalawati (1977) ACJ 456; Krishna Gopal Devi Prasad v
Dattatraya Madho Lad AIR 1972 MP 125 [LNIND 1971 MP 119] [LNIND 1971 MP 119] [LNIND 1971 MP 119], Krishna Gopal
Devi Prasad v Dattatraya Madho Lad (1971) ACJ 372, Krishna Gopal Devi Prasad v Dattatraya Madho Lad (1972) MP LJ 485;
Bal Gopal Das v Mohan Singh AIR 1964 All 504 [LNIND 1964 ALL 27] [LNIND 1964 ALL 27] [LNIND 1964 ALL 27], Bal Gopal
Das v Mohan Singh (1964) All LJ 358 (the tribunal under the Displaced Persons (Debt Adjustment) Act 1951 was held to be a
court).
9 Rameshwar Lal v Jogendra Das AIR 1970 Ori 76 [LNIND 1969 ORI 98] [LNIND 1969 ORI 98] [LNIND 1969 ORI 98],
Rameshwar Lal v Jogendra Das (1970) ILR Cat 587, Rameshwar Lal v Jogendra Das (1970) Lab IC 560; General Manager,
Bhilai Steel Project v Bhutani & Co 1965 MP LJ (Notes) 73; H C D Mathur, Secretary of the National Federation of Railway v EI
Railway Administration AIR 1950 All 80 [LNIND 1949 ALL 109] [LNIND 1949 ALL 109] [LNIND 1949 ALL 109], H C D Mathur,
Secretary of the National Federation of Railway v EI Railway Administration (1949) All LJ 471, H C D Mathur, Secretary of the
National Federation of Railway v EI Railway Administration (1949) All WR 581; Sawatram Ramprashad Mills Co Ltd v Vishnu
Pandorang Hingnekar AIR 1950 Nag 14, Sawatram Ramprashad Mills Co Ltd v Vishnu Pandorang Hingnekar (1949) ILR Nag
905.
10 Yeshwant Rao v Sampat AIR 1979 MP 21 [LNIND 1978 MP 20] [LNIND 1978 MP 20] [LNIND 1978 MP 20], Yeshwant Rao
v Sampat (1979) Lab IC 176, Yeshwant Rao v Sampat (1979) ACJ 244. As to the meaning of review see CIVIL
PROCEDURE[65.773].
11 Shaikh Amir v Jarder Beg, 1979 MP LJ (Notes) 68; Mohanlal Prabhuram v Fine Knitting Mills Co Ltd, Ahmedabad AIR 1960
Bom 387 [LNIND 1959 BOM 118] [LNIND 1959 BOM 118] [LNIND 1959 BOM 118], Mohanlal Prabhuram v Fine Knitting Mills
Co Ltd, Ahmedabad 62 Bombay LR 195, Mohanlal Prabhuram v Fine Knitting Mills Co Ltd, Ahmedabad (1960) Nag LJ 223
[LNIND 1959 BOM 118] [LNIND 1959 BOM 118] [LNIND 1959 BOM 118]; Abdul Rashid v Hanuman Oil & Rice Mill AIR 1951
Assam 88; Rajiyabi Cosman Sayi v Machinon Machinazie and Co Pvt Ltd AIR 1970 Bom 278 [LNIND 1969 BOM 31] [LNIND
1969 BOM 31] [LNIND 1969 BOM 31], Rajiyabi Cosman Sayi v Machinon Machinazie and Co Pvt Ltd 72 Bom LR 358, Rajiyabi
Cosman Sayi v Machinon Machinazie and Co Pvt Ltd (1970) Mah LJ 705 [LNIND 1969 BOM 31] [LNIND 1969 BOM 31] [LNIND
1969 BOM 31].
12 Ie under the Constitution of India art 227 (see generally[80] constitutional law). Manindra Land & Building Corporation Ltd v
Bhutnath Banerjee AIR 1964 SC 1336 [LNIND 1963 SC 139] [LNIND 1963 SC 139] [LNIND 1963 SC 139], Manindra Land &
Building Corporation Ltd v Bhutnath Banerjee [1964] 3 SCR 495 [LNIND 1963 SC 139] [LNIND 1963 SC 139] [LNIND 1963 SC
139], Manindra Land & Building Corporation Ltd v Bhutnath Banerjee (1963) 2 SCWR 263.
13 Managing Director, (MIG) Hindustan Aeronautics Ltd, Balanagar, Hyderabad v Ajit Prasad Torway, Manager (Purchase and
488
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Stores) AIR 1973 SC 76 [LNIND 1971 SC 562] [LNIND 1971 SC 562] [LNIND 1971 SC 562], Managing Director, (MIG)
Hindustan Aeronautics Ltd, Balanagar, Hyderabad v Ajit Prasad Torway, Manager (Purchase and Stores) (1972) 3 SCC 195
[LNIND 1971 SC 562] [LNIND 1971 SC 562] [LNIND 1971 SC 562], Managing Director, (MIG) Hindustan Aeronautics Ltd,
Balanagar, Hyderabad v Ajit Prasad Torway, Manager (Purchase and Stores) (1973) Lab IC 407 [LNIND 1971 SC 562] [LNIND
1971 SC 562] [LNIND 1971 SC 562]; DLF Housing & Construction Co Pvt Ltd v Sarup Singh AIR 1971 SC 2324 [LNIND 1969
SC 333] [LNIND 1969 SC 333] [LNIND 1969 SC 333], DLF Housing & Construction Co Pvt Ltd v Sarup Singh (1969) 3 SCC
807 [LNIND 1969 SC 333] [LNIND 1969 SC 333] [LNIND 1969 SC 333], DLF Housing & Construction Co Pvt Ltd v Sarup Singh

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(1) GENERAL REMEDIES/C.
REQUIREMENTS FOR CLAIMING STATUTORY REMEDIES/(i) Notice/[005.335] Introduction
[005.335] Introduction A suit cannot be instituted against the government or against a public officer in
respect of any act purporting to be done by him in his official capacity, until the expiration of two months,
after a notice in the prescribed manner has been given in writing1. This applies to all suits including those for
injunctions2, declarations3 or contracts4. It applies not only to the acts already done but also to future acts5.
The requirement of notice is mandatory and imperative and thus, courts are absolutely debarred from
entertaining a suit against the government, instituted without complying with the requirement6. Failure to
serve the notice as required entails dismissal of the suit7. However, the plaintiff can file a fresh suit in respect
of the same cause of action. A suit filed before the expiry of the two-month notice period must be rejected8.
1 See the Code of Civil Procedure 1908 s 80(1) (see CIVIL PROCEDURE[65.565]).
2 Notice to government is necessary where the part or the whole of the relief claimed is an injunction. Code of Civil Procedure
1908 s 80 applies to suits relating to both mandatory as well as prohibitory injunctions: see Amar Nath Dogra v Union of India
AIR 1963 SC 424 [LNIND 1962 SC 155] [LNIND 1962 SC 155] [LNIND 1962 SC 155], Amar Nath Dogra v Union of India [1963]
1 SCR 657 [LNIND 1962 SC 155] [LNIND 1962 SC 155] [LNIND 1962 SC 155]; Roshan Lal Sharma v State of Uttar Pradesh
AIR 1971 All 210; Union of India v Brij Nath Rai AIR 1971 All 209. See generally [170]INJUNCTIONS.
3 Sawai Singhai Nirmal Chand v Union of India AIR 1966 SC 1068 [LNIND 1965 SC 235] [LNIND 1965 SC 235] [LNIND 1965
SC 235], Sawai Singhai Nirmal Chand v Union of India [1966] 1 SCR 986 [LNIND 1965 SC 235] [LNIND 1965 SC 235] [LNIND
1965 SC 235]; Sooraj v SDO, Rehhi AIR 1995 SC 872; Ebrahim Bhai v State AIR 1997 Bom 13. As to the meaning of
declaration see [005.345]-[005.348]. As to when declarations may or may not be granted see INJUNCTIONS[170.029] and
following.
4 Ghanshyam Dass v Dominion of India AIR 1984 SC 1004 [LNIND 1984 SC 82] [LNIND 1984 SC 82] [LNIND 1984 SC 82],
Ghanshyam Dass v Dominion of India (1984) 3 SCC 46 [LNIND 1984 SC 82] [LNIND 1984 SC 82] [LNIND 1984 SC 82],
Ghanshyam Dass v Dominion of India [1984] 3 SCR 229 [LNIND 1984 SC 82] [LNIND 1984 SC 82] [LNIND 1984 SC 82].
5 Babulal v State of Madhya Bharat AIR 1955 MB 75; State of Bihar v Raghunandan Singh AIR 1960 Pat 530, State of Bihar v
Raghunandan Singh (1960) BLJR 432.
6 Gangappa Gurupadappa Gugwad v Bachawwa AIR 1971 SC 442 [LNIND 1970 SC 443] [LNIND 1970 SC 443] [LNIND 1970
SC 443], Gangappa Gurupadappa Gugwad v Bachawwa (1970) 3 SCC 716 [LNIND 1970 SC 443] [LNIND 1970 SC 443]
[LNIND 1970 SC 443], Gangappa Gurupadappa Gugwad v Bachawwa [1971] 2 SCR 691 [LNIND 1970 SC 443] [LNIND 1970
SC 443] [LNIND 1970 SC 443]; B L Shukla v Fatmabai Ismail AIR 1976 Guj 29; Shanti Pada Ganguli v Union of India AIR
1976 Pat 74, Shanti Pada Ganguli v Union of India (1976) BLJR 23, Shanti Pada Ganguli v Union of India (1975) BB CJ 757.
7 Premier Enterprises v State of Meghalaya AIR 1992 Gau 98 [LNIND 1991 GAU 50] [LNIND 1991 GAU 50] [LNIND 1991 GAU
50], Premier Enterprises v State of Meghalaya (1991) 2 GLR 360.
8 Bihari Chowdhury v State of Bihar AIR 1984 SC 1043 [LNIND 1984 SC 92] [LNIND 1984 SC 92] [LNIND 1984 SC 92], Bihari
Chowdhury v State of Bihar (1984) 2 SCC 258, Bihari Chowdhury v State of Bihar [1984] 3 SCR 190 [LNIND 1984 SC 79]
[LNIND 1984 SC 79] [LNIND 1984 SC 79]; Sawai Singhai Nirmal Chand v Union of India [1966] 1 SCR 986 [LNIND 1965 SC
235] [LNIND 1965 SC 235] [LNIND 1965 SC 235]; Ebrahim Bhai v State AIR 1997 Bom 13 (where the suit was rejected as it
was filed seven days before the expiry of the two month period); Union of India v Devanagere Cotton Mills AIR 1976 Mad 20,
Union of India v Devanagere Cotton Mills 88 Mad LW 534, Union of India v Devanagere Cotton Mills (1975) 2 Mad LJ 341 (the
suit was rejected because it was filed one day before the expiry of the notice period).
489
Page 86

REQUIREMENTS FOR CLAIMING STATUTORY REMEDIES/(i) Notice/[005.336] Rationale and purpose
[005.336] Rationale and purpose The procedure requiring delivery of notice, prior to instituting a suit
against the government or a public officer, is a measure of public policy. The purpose of the notice is to give
to the government a reasonable opportunity so as to enable it to consider the legal position and meet the
claims of the person concerned, if so advised and thus, avoid unnecessary litigation and wastage of public
funds. The notice under Code of Civil Procedure 1908 must therefore, inform the government of the nature of
the suit to be filed. Such notice is not a pleading and need not be a verbatim copy of the plaint1.
1 See the Code of Civil Procedure 1908 s 80(1) (see CIVIL PROCEDURE[65.566]).

REQUIREMENTS FOR CLAIMING STATUTORY REMEDIES/(i) Notice/[005.337] Form of notice
[005.337] Form of notice Though any particular or technical form is not prescribed for a notice, that the
Code of Civil Procedure 1908 requires to issue1, a notice may be bad if it fails to give sufficient information
as regards the nature, the basis of claim and the relief sought2. The terms of the notice must be construed
reasonably and any unimportant error or defect therein must not be treated as an excuse for defeating a just
claim3. A notice must not be construed in a pedantic or hypercritical manner or in a manner completely
divorced from common sense4. If a reasonable reading of the notice shows that the plaintiff has given the
information which law5 requires him to give, then any incidental defects or irregularities must be ignored. In
spite of the liberal view, many suits in practice flounder because of the defects or lacunae in the notice. For
instance, some discrepancy may be found in the identity of the person issuing the notice and the person
filing the suit6 or there could be a variance between the basis of the claim in the notice and this may make
the notice invalid7.
1 See [005.335].
2 Raghunath Das v Union of India AIR 1980 SC 674 [LNIND 1979 SC 503] [LNIND 1979 SC 503] [LNIND 1979 SC 503],
Raghunath Das v Union of India (1980) 2 SCC 167 [LNIND 1979 SC 503] [LNIND 1979 SC 503] [LNIND 1979 SC 503],
Raghunath Das v Union of India [1980] 2 SCR 650 [LNIND 1979 SC 503] [LNIND 1979 SC 503] [LNIND 1979 SC 503]; State of
Madras v CP Agencies AIR 1960 SC 1309; Amar Nath Dogra v Union of India AIR 1963 SC 424 [LNIND 1962 SC 155] [LNIND
1962 SC 155] [LNIND 1962 SC 155], Amar Nath Dogra v Union of India [1963] 1 SCR 657 [LNIND 1962 SC 155] [LNIND 1962
SC 155] [LNIND 1962 SC 155], Amar Nath Dogra v Union of India 64 Pun LR 895; Dhian Singh Shoba Singh v Union of India
AIR 1958 SC 274 [LNIND 1957 SC 11] [LNIND 1957 SC 11] [LNIND 1957 SC 11], Dhian Singh Shoba Singh v Union of India
(1958) SCJ 363 [LNIND 1957 SC 11] [LNIND 1957 SC 11] [LNIND 1957 SC 11], Dhian Singh Shoba Singh v Union of India
[1958] SCR 781 [LNIND 1957 SC 11] [LNIND 1957 SC 11] [LNIND 1957 SC 11]; Narayan Chandra Bhanja Birabar Jagdev v
State of Orissa AIR 1974 Ori 152, Narayan Chandra Bhanja Birabar Jagdev v State of Orissa (1973) 1 Cut WR 825, Narayan
Chandra Bhanja Birabar Jagdev v State of Orissa 39 Cut LT 764. See CIVIL PROCEDURE[65.566] and following.
3 Beohar Rajendra Sinha v State of Madhya Pradesh AIR 1979 SC 1256.
4 Raghunath Das v Union of India AIR 1980 SC 674 [LNIND 1979 SC 503] [LNIND 1979 SC 503] [LNIND 1979 SC 503],
Raghunath Das v Union of India (1980) 2 SCC 167 [LNIND 1979 SC 503] [LNIND 1979 SC 503] [LNIND 1979 SC 503],
Raghunath Das v Union of India [1980] 2 SCR 650 [LNIND 1979 SC 503] [LNIND 1979 SC 503] [LNIND 1979 SC 503]; Dhian
Singh Shoba Singh v Union of India AIR 1958 SC 274 [LNIND 1957 SC 11] [LNIND 1957 SC 11] [LNIND 1957 SC 11], Dhian
Singh Shoba Singh v Union of India (1958) SCJ 363 [LNIND 1957 SC 11] [LNIND 1957 SC 11] [LNIND 1957 SC 11], Dhian
Singh Shoba Singh v Union of India [1958] SCR 781 [LNIND 1957 SC 11] [LNIND 1957 SC 11] [LNIND 1957 SC 11].
5 Ie the Code of Civil Procedure 1908 s 80(1) (see civil procedure [65.566]).
6 SN Dutt v Union of India AIR 1961 SC 1449 [LNIND 1961 SC 135] [LNIND 1961 SC 135] [LNIND 1961 SC 135], SN Dutt v
Union of India [1962] 1 SCR 560 [LNIND 1961 SC 135] [LNIND 1961 SC 135] [LNIND 1961 SC 135], SN Dutt v Union of India
490
Page 87
(1962) 1 SCJ 115 [LNIND 1961 SC 135] [LNIND 1961 SC 135] [LNIND 1961 SC 135]; Union of India v Shankar Store AIR
1974 Ori 85 [LNIND 1973 ORI 94] [LNIND 1973 ORI 94] [LNIND 1973 ORI 94], Union of India v Shankar Store 39 Cut LT 1043;
Ramji Lal v Union of India AIR 1974 Raj 18, Ramji Lal v Union of India (1973) Raj LW 553.
See contra Ghanshyam Das v Union of India AIR 1984 SC 1004 [LNIND 1984 SC 82] [LNIND 1984 SC 82] [LNIND 1984 SC
82], Ghanshyam Das v Union of India (1984) 3 SCC 46 [LNIND 1984 SC 82] [LNIND 1984 SC 82] [LNIND 1984 SC 82],
Ghanshyam Das v Union of India [1984] 3 SCR 229 [LNIND 1984 SC 82] [LNIND 1984 SC 82] [LNIND 1984 SC 82] (a
government contractor gave notice to the government claiming some payment arising out of a contract; he died before he could
file the suit; the court held that his sons could file the case without any fresh notice being served on the government); State of
Andhra Pradesh v Gondugola Nenkata Suryanarayana Guru AIR 1965 SC 11 [LNIND 1963 SC 216] [LNIND 1963 SC 216]
[LNIND 1963 SC 216], State of Andhra Pradesh v Gondugola Nenkata Suryanarayana Guru [1964] 4 SCR 945 [LNIND 1963
SC 216] [LNIND 1963 SC 216] [LNIND 1963 SC 216], State of Andhra Pradesh v Gondugola Nenkata Suryanarayana Guru
(1964) 1 SCWR 374 [LNIND 1963 SC 216] [LNIND 1963 SC 216] [LNIND 1963 SC 216].
7 Pratap Narain Sinha v State AIR 1984 SC 212; Tarachand Agarwalla v Union of India AIR 1983 Cal 268 [LNIND 1982 CAL
286] [LNIND 1982 CAL 286] [LNIND 1982 CAL 286](where there is substantial difference between the cause of action
mentioned in the suit and that mentioned in the notice, the Code of Civil Procedure 1908 s 80 is not substantially complied
with). See however Union of India v Jeewan Ram AIR 1958 SC 905 [LNIND 1958 SC 240] [LNIND 1958 SC 240] [LNIND 1958
SC 240](that where there was no substantial difference between the relief claimed in the notice and in the plaint, the notice
under the Civil Procedure Code 1908 s 80 would not be invalid on that ground).

REQUIREMENTS FOR CLAIMING STATUTORY REMEDIES/(i) Notice/[005.338] Notice, against whom may
be given
[005.338] Notice, against whom may be given A notice may be given against not only the government but
also against a public officer in respect of any act purporting to be done by him in his official capacity1. While
in suits against government, a suit cannot be filed without giving a notice, as regards public officers, notice is
required only in respect of those acts that are purported to be done by the public officer in his official
capacity. The word 'act' in this expression refers to an illegal omission and no distinction can be made
between:
(1) an act done illegally and in bad faith; and

(2) an act done bona fide, in official capacity2.
So long as the act in question is done or is purported to done by the public officer, in his official capacity, any
question that the act was done on account of malice would be irrelevant for purposes of notice3. A notice is
issuable on account of non-feasance as well as to misfeasance4.
A notice to a public officer may not be necessary where the act done by him is not within the sphere of his
duties5. Service of notice is necessary where the Central Government is likely to suffer6.
The requirement of notice need not be fulfilled if a suit is filed against a statutory corporation for it is neither a
government nor a pubic officer7. Similarly, a notice is not required if a claim is filed against the government
before the claims tribunal functioning under the Motor Vehicles Act 19398.
1 Krishi Mattu Ksheera Utpadaka Vividhoddesha Sahakari Sangh Niyamit Bakkal v Sohan Lal AIR 1993 Kant 20 [LNIND 1992
KANT 332] [LNIND 1992 KANT 332] [LNIND 1992 KANT 332], Krishi Mattu Ksheera Utpadaka Vividhoddesha Sahakari Sangh
Niyamit Bakkal v Sohan Lal (1993) 1 Band CLR 107, Krishi Mattu Ksheera Utpadaka Vividhoddesha Sahakari Sangh Niyamit
Bakkal v Sohan Lal (1993) 1 Cur LJ 420.
2 State of Maharashtra v Chander Kant AIR 1977 SC 148 [LNIND 1976 SC 405] [LNIND 1976 SC 405] [LNIND 1976 SC 405],
State of Maharashtra v Chander Kant (1977) 1 SCJ 394, State of Maharashtra v Chander Kant [1977] 1 SCR 993 [LNIND 1976
3 As to the meaning of the expression 'purporting to be done' see: Pukhraj v State of Rajasthan AIR 1973 SC 2591 [LNIND
1973 SC 255] [LNIND 1973 SC 255] [LNIND 1973 SC 255], Pukhraj v State of Rajasthan (1973) 2 SCC 701 [LNIND 1973 SC
491
Page 88
255] [LNIND 1973 SC 255] [LNIND 1973 SC 255], Pukhraj v State of Rajasthan [1974] 1 SCR 559 [LNIND 1973 SC 255]
[LNIND 1973 SC 255] [LNIND 1973 SC 255]; B L Shukla v Fatmabai Ismail AIR 1967 Guj 29 (the police officers, acting in the
course of investigation, filed a charge sheet against the plaintiffs for the offence of murder, but they were acquitted; the plaintiffs
then filed a suit for malicious prosecution against the police officers, but the suit was dismissed because the Code of Civil
Procedure 1908 s 80 notice had not been given; the act in question was done or was purported to be done in the discharge of
official duty by the police officers in their official capacity; any question that the act was done on account of malice was
absolutely irrelevant for deciding the question whether the statutory notice under s 80 was necessary or not; the suit was thus
held to be non maintainable).
4 Chandrakant Govind Deshmukh v State of Maharashtra AIR 1970 Bom 301 [LNIND 1966 BOM 21] [LNIND 1966 BOM 21]
[LNIND 1966 BOM 21], Chandrakant Govind Deshmukh v State of Maharashtra (1966) Mah LJ 1102 (a suit was brought
against the state claiming that the order passed by the Registrar of Public Trusts that a trust was a public trust be set aside; the
question arose whether the suit was liable to be dismissed as no notice under Code of Civil Procedure 1908 s 80(1) had been
given; the High Court of Bombay ruled that no notice was required in the instant case; that under the relevant Act, each public
trust had to be registered with the Registrar; that it was for him to decide whether a trust was a public trust or not and after
giving his ruling he became functus officio in the matter; that he could not change his decision himself; that it could be achieved
only through a civil suit in a court; that when such a suit was filed, no relief was asked for against the Registrar or the
Government and, therefore, s 80 would not apply).
On appeal, the Supreme Court overruled the high court: State of Maharashtra v Chander Kant AIR 1977 SC 148 [LNIND 1976
SC 405] [LNIND 1976 SC 405] [LNIND 1976 SC 405], State of Maharashtra v Chander Kant (1977) 1 SCC 57 [LNIND 1976 SC
253] [LNIND 1976 SC 253] [LNIND 1976 SC 253], State of Maharashtra v Chander Kant [1977] 1 SCR 993 [LNIND 1976 SC
405] [LNIND 1976 SC 405] [LNIND 1976 SC 405] (the suit in question was against a public officer in his official capacity; the
words under the Code of Civil Procedure 1908 s 80'act purporting to be done in official capacity', apply to non feasance as well
as to misfeasance; the expression 'act' extends to illegal omissions; a distinction cannot be made between acts done illegally
and in bad faith and acts done bona fide in official capacity; section 80 is attracted when any suit is filed against a public officer
in respect of any act purporting to be done by such officer in his official capacity; a notice under s 80 need to be given not only
to the government but also to the public officer concerned in respect of any act purporting to be done in his official capacity).
5 Amalgamated Electricity Co Ltd v Municipal Committee, Ajmer AIR 1969 SC 227 [LNIND 1968 SC 175] [LNIND 1968 SC
175] [LNIND 1968 SC 175], Amalgamated Electricity Co Ltd v Municipal Committee, Ajmer (1969) 1 SCJ 355; Babu
Rameshwar Prasad Singh v Md Ayyub AIR 1950 Pat 527 (where a public officer took possession of property which he had no
authority to seize and was sued for trespass, it was held that no notice was necessary as the suit was not against him in his
official capacity); Dattatraya Ramchandra v Annappa Pandurang Kokatnur (1928) 52 ILR Bom 832 (a notice was not held
necessary when an investigation officer assaulted a witness).
6 Prakash Textiles, Bangalore v Tax Recovery Officer, Government of India, Bangalore AIR 1983 Kant 174 [LNIND 1982 KANT
222] [LNIND 1982 KANT 222] [LNIND 1982 KANT 222], Prakash Textiles, Bangalore v Tax Recovery Officer, Government of
India, Bangalore (1983) 1 Kant LJ 42, Prakash Textiles, Bangalore v Tax Recovery Officer, Government of India, Bangalore
(1983) 142 ITR 256 (when a suit is being filed to restrain the tax recovery officer while proceeding with the sale of property for
recovery of income tax dues, notice under the Code of Civil Procedure 1908 s 80(1) to the Central Government is necessary for
ultimately it is the Central Government that is likely to suffer); Union of India v Chhattar Singh AIR 1973 P & H 339 (a person
having a savings bank account lost his passbook; a stranger withdrew the money out of his account; he gave a notice under the
Code of Civil Procedure 1908 s 80 to the Union of India and brought a case for negligence against both the Union as well as the
concerned officer; the high court rejected the suit because while the clerk was a necessary party to the suit and while he gave
money to a stranger and he was acting in his official capacity, no notice was given to him; as the suit was joint against both, it
must fail as a whole since the notice had not been given to all defendants). See contra Ghulam Rasool v State of Jammu and
Kashmir AIR 1983 SC 1188, Ghulam Rasool v State of Jammu and Kashmir (1983) 4 SCC 623 (a suit for injunction was filed
against the state government and the block development officer based on possession of land; a notice was given under the
Code of Civil Procedure s 80 to the government but not to the officer concerned; it was conceded in the Supreme Court that the
suit was against the government and the officer concerned had been impleaded as the state's agency of interference with the
plaintiff's possession and no separate notice to him was necessary; the court granted the injunction); N S Jayanandan v State
of Kerala AIR 1983 Ker 46 [LNIND 1982 KER 215] [LNIND 1982 KER 215] [LNIND 1982 KER 215], N S Jayanandan v State of
Kerala (1982) Ker LT 962 [LNIND 1982 KER 215] [LNIND 1982 KER 215] [LNIND 1982 KER 215], N S Jayanandan v State of
Kerala (1982) Ker LJ 585 (an accident took place because of the negligence of the driver of a state jeep; the plaintiff suffered
substantial injuries and he filed a suit for damages, against the state after giving it notice; he did not however give any notice to
the driver concerned; the court ruled that the suit was maintainable; the state as a joint tortfeasor, was jointly and severally
liable for damages and so the suit could not fail simply because of lack of notice to the driver).
7 Minakshi Patra v Secretary Irrigation & Power, Government of Orissa AIR 1999 Ori 137 [LNIND 1999 ORI 102] [LNIND 1999
ORI 102] [LNIND 1999 ORI 102], Minakshi Patra v Secretary Irrigation & Power, Government of Orissa (1999) 2 ACC 238,
Minakshi Patra v Secretary Irrigation & Power, Government of Orissa (1999) 3 Civ LJ 874; Kamta Prasad Singh v Regional
Manager Food Corporation of India AIR 1974 Pat 376.
8 Mangilal Ganpat v Union of India AIR 1974 MP 159, Mangilal Ganpat v Union of India (1973) ACJ 352, Mangilal Ganpat v
Union of India (1974) MP LJ 216.
492
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REQUIREMENTS FOR CLAIMING STATUTORY REMEDIES/(i) Notice/[005.339] Deficiencies, drawbacks
and dilution
[005.339] Deficiencies, drawbacks and dilution The requirement to give notice1 constitutes a significant
restriction on the right of a citizen to file a suit against the government. It may cause injustice to a claimant
against the government. The claims for injunctions against the government could become infructuous if the
plaintiffs were to wait for two months before filing suits. Technicality of procedure may result in the defeat the
just claims of the people2.
The Law Commission has recommended the abolition of the requirement of notice against the government
as required by Code of Civil Procedure3. However, the government has not so far implemented the
Commission's suggestion, though, the rigours the procedure have been diluted by an amendment of the Civil
Procedure Code. Formerly, two months' notice was required in all cases irrespective of the urgency of the
matter. The result was that when an urgent or immediate relief was needed against the government, a
person could not file a suit and he had to take recourse to the writ procedure. Presently, the Code of Civil
Procedure (Amendment) Act 1976 has added a provision to provide that a suit to obtain an urgent or
immediate relief against the government or a public officer can be filed, with the leave of the court, without
serving any notice. However, the court is not to grant any relief, interim or otherwise, without giving to the
government or the public officer concerned a reasonable opportunity of showing cause in respect of the relief
prayed for in the suit. If the court is satisfied, after hearing4 the parties, that no urgent or immediate relief
need be granted, it will return the plaint to the plaintiff for presentation to it after complying with the two
months' notice requirement. Thus, no court fees need be paid again when the suit is filed after the notice
period5.
A suit instituted against the government or a public officer cannot be dismissed merely by reason of any error
or defect in the notice if it has been delivered or left at the office of the appropriate authority and if in such
notice:
(1) the name, description and the residence of the plaintiff has been so given as to enable the
concerned authority to identify the person serving the notice; and
(2) the cause of action and the relief claimed has been substantially indicated6.
1 See [005.336].
2 Dhirendra Nath Gorai v Sudhir Chandra Ghosh AIR 1964 SC 1300 [LNIND 1964 SC 58] [LNIND 1964 SC 58] [LNIND 1964
SC 58], Dhirendra Nath Gorai v Sudhir Chandra Ghosh [1963] 1 SCR 1001, Dhirendra Nath Gorai v Sudhir Chandra Ghosh
(1964) 1 SCWR 524; Vasant Ambadas Pandit v Bombay Municipal Corporation AIR 1981 Bom 394 [LNIND 1981 BOM 91]
[LNIND 1981 BOM 91] [LNIND 1981 BOM 91], Vasant Ambadas Pandit v Bombay Municipal Corporation (1981) Mah LJ 706
[LNIND 1981 BOM 91] [LNIND 1981 BOM 91] [LNIND 1981 BOM 91], Vasant Ambadas Pandit v Bombay Municipal
Corporation (1981) Bom CR 793 [LNIND 1981 BOM 91] [LNIND 1981 BOM 91] [LNIND 1981 BOM 91]; State of Bihar v
Panchratna Devi AIR 1980 Pat 212, State of Bihar v Panchratna Devi (1980) BBCJ 347, State of Bihar v Panchratna Devi
(1980) BLJR 474.
3 Shanti Pada Ganguli v Union of India AIR 1976 Pat 74, Shanti Pada Ganguli v Union of India (1974) BLJR 23, Shanti Pada
Ganguli v Union of India 1975 BBCJ 757 (the court decided on merits against the government and in favour of the plaintiff, but
refused to give relief and dismissed the suit because of lack of notice).
See however N S Jayanandan v State of Kerala AIR 1983 Ker 46 [LNIND 1982 KER 215] [LNIND 1982 KER 215] [LNIND 1982
KER 215], N S Jayanandan v State of Kerala (1982) Ker LT 962 [LNIND 1982 KER 215] [LNIND 1982 KER 215] [LNIND 1982
KER 215], N S Jayanandan v State of Kerala (1982) Ker LJ 585; Union of India v Tamil Nadu Small Industries Corporation Ltd
AIR 1981 Mad 316 [LNIND 1981 MAD 127] [LNIND 1981 MAD 127] [LNIND 1981 MAD 127], Union of India v Tamil Nadu Small
Industries Corporation Ltd (1981) 94 Mad LW 469, Union of India v Tamil Nadu Small Industries Corporation Ltd (1981) 2 Mad
LJ 189; Rawat Hardeo Singh v State of Rajasthan AIR 1981 Raj 280 [LNIND 1981 RAJ 10] [LNIND 1981 RAJ 10] [LNIND 1981
RAJ 10], Rawat Hardeo Singh v State of Rajasthan (1981) WLN 151; Nani Amma Nannini Amma v State of Kerala AIR 1963
Ker 114 [LNIND 1962 KER 320] [LNIND 1962 KER 320] [LNIND 1962 KER 320], Nani Amma Nannini Amma v State of Kerala
493
Page 90
(1962) 2 Ker LR 389, Nani Amma Nannini Amma v State of Kerala (1962) Ker LJ 1267 (where the objection that the suit was
filed before the expiry of the notice period was raised by the government after five years; the court rejected the plea on sound
logic).
The Supreme Court has deprecated the tendency of the government and its agencies to carry on wasteful litigation to contest,
instead of looking towards settlement of legitimate claims of the people: see Employees' State Insurance Corporation v Ameer
Hasan AIR 1981 SC 174 [LNIND 1980 SC 500] [LNIND 1980 SC 500] [LNIND 1980 SC 500], Employees' State Insurance
Corporation v Ameer Hasan (1980) Supp SCC 334, Employees' State Insurance Corporation v Ameer Hasan (1980) UJ SC
811; Rajasthan State Road Transport Corporation, Jaipur v Narain Shanker AIR 1980 SC 695 [LNIND 1980 SC 39] [LNIND
1980 SC 39] [LNIND 1980 SC 39], Rajasthan State Road Transport Corporation, Jaipur v Narain Shanker (1980) 2 SCC 189,
Rajasthan State Road Transport Corporation, Jaipur v Narain Shanker (1980) UJ SC 325.
See the Law Commission of India, ' Report of Judicial Administration' (Vol 1, 1958) pp 475-76; Law Commission of India,
'Report on the Code of Civil Procedure 1908' (27th report, 1964) pp 21-23. See also Law Commission of India (54th report,
1973)p 56.
See further State of Punjab v Geeta Iron and Brass Works Ltd AIR 1978 SC 1608 [LNIND 1977 SC 297] [LNIND 1977 SC 297]
[LNIND 1977 SC 297], State of Punjab v Geeta Iron and Brass Works Ltd (1978) 1 SCC 68 [LNIND 1977 SC 297] [LNIND 1977
SC 297] [LNIND 1977 SC 297], State of Punjab v Geeta Iron and Brass Works Ltd [1978] 1 SCR 746 [LNIND 1977 SC 297]
[LNIND 1977 SC 297] [LNIND 1977 SC 297].
5 See the Code of Civil Procedure 1908 s 80(2) (see CIVIL PROCEDURE[65.577]). Prakash Industries Ltd v Maitri Shukal AIR
1998 Ori 45 [LNIND 1997 ORI 130] [LNIND 1997 ORI 130] [LNIND 1997 ORI 130], Prakash Industries Ltd v Maitri Shukal
(1997) 4 Cut CC 39, Prakash Industries Ltd v Maitri Shukal (1997) 2 Ori LR 144.
6 See the Law Commission of India (100th report): the amendments touch only the fringe of the problem and that the hardship
caused by Code of Civil Procedure 1908 s 80 continues unabated; section 80, even as amended, leaves open the scope for
technical defences being raised by over zealous departments in a bid to defeat even the legitimate claims which people may
have against the government; the requirement of notice causes injustice where a meritorious claim is rejected by the court on
the technical ground of lack of, defect on the form of or defect in the mode of service of notice; the real object of the section, of
giving prior intimation of proposed legal proceedings so that government may make amends, is hardly achieved; this real object
has got obscured and the emphasis has shifted to the negative attitude of using the section only as a shield.
This recommendation of the Commission has also been endorsed by the Supreme Court: see Dilbagh Rai Jerry v Union of
India AIR 1974 SC 130 [LNIND 1973 SC 322] [LNIND 1973 SC 322] [LNIND 1973 SC 322], Dilbagh Rai Jerry v Union of India
(1974) 3 SCC 554 [LNIND 1973 SC 322] [LNIND 1973 SC 322] [LNIND 1973 SC 322], Dilbagh Rai Jerry v Union of India [1974]

REQUIREMENTS FOR CLAIMING STATUTORY REMEDIES/(ii) Limitation period/[005.340] Limitation
[005.340] Limitation When a decree is passed against the Union of India, a state or a public officer, a time
must be specified in the decree within which it is to be satisfied. If the decree is not satisfied within the time
so specified, the court must report the case for orders of the government. Execution of the decree must not
be issued on such decree, unless it remains unsatisfied for a period of three months computed from the date
of such decree1.
Under the Limitation Act 19632, the government enjoys the benefit of 30 years' limitation for institution of
suits by it on its behalf, except in the case of a suit before the Supreme Court in the exercise of its original
jurisdiction. The period of limitation allowed to government is much longer than that allowed in respect of
suits by private parties3.
1 See the Code of Civil Procedure 1908 s 82 (see CIVIL PROCEDURE[65.576]).
2 See the Limitation Act 1963 art 112 (see generally [205]LIMITATION OF ACTIONS).
3 See the Law Commission of India (100th report): this provision causes hardship to the concerned private parties as, in course
of time, these parties might lose evidence in their favour; witnesses may die or their memory may suffer and, thus, valuable
494
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evidence may perish; the Commission therefore, suggests that no special treatment need be accorded to the government in the
matter of period of limitation and that Limitation Act 1963 art 112 be repealed).

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(2) INJUNCTIONS/[005.341] Introduction
[005.341] Introduction An injunction is primarily a private law remedy; however, it is used in the area of
public law as well to prevent the administration from breaching the law. Through an injunction, a public
authority may be commanded to act in the manner required by law or to refrain from acting illegally. An
injunction can be issued to an administrative or a quasi-judicial body1.
Presently, the law relating to injunctions2 is laid down in the Specific Relief Act 1963. Injunctions are
classified into three categories: (1) temporary; (2) perpetual; and (3) mandatory. Preventive relief is granted
at the discretion of the court by injunctions--temporary or perpetual4.
An injunction is pre eminently a discretionary remedy and the plaintiff cannot claim it as a matter of right.
However, the court has to exercise its discretion judicially. An injunction is more in the nature of an equitable
remedy than a legal remedy. The court grants the relief according to legal principles and ex debito justitiae.
An injunction may be refused when the conduct of the plaintiff is such as to disentitle him of the assistance of
the court or when equally efficacious relief can be obtained by any other usual mode of proceedings5. The
existence of an alternative legal remedy differs from case to case and no standard rules can be laid down in
this regard6. For instance, where a municipal committee issued a notice to a house owner asking him to
remove certain encroachments on the municipal land, a suit for injunction7 against the municipality would lie
if there is no other efficacious remedy open to him8. However, in practice, this provision may not prove to be
a significant restriction on the court's power to issue injunctions9.
In a suit for a perpetual or mandatory injunction, the petitioner can also claim damages either in addition to or
in substitution of such injunction10. The court may, in its discretion, award damages. Therefore, an injunction
will not be issued when damages would be an adequate remedy to the aggrieved party, as in the case of a
breach of contract11.
1 As to the meaning of an injunction see INJUNCTIONS[170.002] and following.
2 As to injunctions see generally [170]INJUNCTIONS.
4 See the Specific Relief Act 1963 s 41(i) (see INJUNCTIONS[170.011]).
5 See the Specific Relief Act 1963 s 41(h) (see INJUNCTIONS[170.011]). Municipal Corporation of Delhi v Suresh Chandra
AIR 1976 SC 2621, Municipal Corporation of Delhi v Suresh Chandra (1976) 4 SCC 719, Municipal Corporation of Delhi v
Suresh Chandra [1977] 2 SCR 10.
6 Raju Bahadur Kamakhya Narain Singh v Union of India AIR 1966 Pat 305, Raju Bahadur Kamakhya Narain Singh v Union of
India (1964) 51 ITR 596, Raju Bahadur Kamakhya Narain Singh v Union of India ILR 44 Pat 22; Borough Municipality,
Chalisgaon v Shree Laxmi Narayan Mills Co Ltd AIR 1956 Bom 646 [LNIND 1955 BOM 96] [LNIND 1955 BOM 96] [LNIND
1955 BOM 96]; Municipal Committee, Akola v Shantarani Madhorao Samudra AIR 1946 Nag 78, Municipal Committee, Akola v
Shantarani Madhorao Samudra (1945) ILR Nag 670, Municipal Committee, Akola v Shantarani Madhorao Samudra (1945) Nag
LJ 520; Baldeodas Bajoria v Governor of United Provinces AIR 1945 Cal 44, Baldeodas Bajoria v Governor of United
Provinces (1944) ILR IC 181. As to alternative legal remedy see [005.230] and [005.272].
7 As to when a suit for an injunction may lie see injunction [170.027].
8 Municipal Committee Montogemery v Master Sant Singh AIR 1940 Lah 377, Municipal Committee Montogemery v Master
Sant Singh (1940) ILR l 143, Municipal Committee Montogemery v Master Sant Singh 42 PLR 573 (the municipal committee
imposed a tax on a person, on whom it could not be imposed under the Municipal Act and committed a breach of obligation,
impliedly existing in his favour; it was held that the person aggrieved could relieve himself from the harassment by invoking the
relief of injunction, as there was no other usual mode of proceeding available to him which could be considered to be equally
efficacious); J Tiwari v Jawala Devi Vidya Mandir AIR 1981 SC 122, J Tiwari v Jawala Devi Vidya Mandir (1979) 4 SCC 160, J
495
Page 92
Tiwari v Jawala Devi Vidya Mandir (1979) UJ 234; Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain
AIR 1976 SC 888 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514], Executive Committee of Vaish Degree
College, Shamli v Lakshmi Narain (1976) 2 SCC 58 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514],
Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain [1976] 2 SCR 1006 [LNIND 1975 SC 514] [LNIND
1975 SC 514] [LNIND 1975 SC 514]; Eastern Tea Estate Pvt Ltd v Municipal Board of Silchar AIR 1967 Assam 1.
9 Sirsi Municipality by its President v Cecelia Kom Francis Tellis AIR 1973 SC 855 [LNIND 1973 SC 16] [LNIND 1973 SC 16]
[LNIND 1973 SC 16], Sirsi Municipality by its President v Cecelia Kom Francis Tellis (1973) 1 SCC 409 [LNIND 1973 SC 16]
[LNIND 1973 SC 16] [LNIND 1973 SC 16], Sirsi Municipality by its President v Cecelia Kom Francis Tellis [1973] SCR 348.
10 As to remedies other than injunctions see 'damages in lieu of injunctions': INJUNCTIONS[170.109].
11 See the Specific Relief Act 1963 s 40 (see INJUNCTIONS[170.001]). Dahyalal Bapulal Raval v Patan Municipality, Patan
(1967) ILR Guj 18; Gotham Construction Co v Amulya Krishna Ghose AIR 1968 Cal 91 [LNIND 1967 CAL 94] [LNIND 1967
CAL 94] [LNIND 1967 CAL 94], Gotham Construction Co v Amulya Krishna Ghose 72 Cal WN 717.

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(2) INJUNCTIONS/[005.342] Temporary
injunctions
[005.342] Temporary injunctions A temporary injunction1 must continue until a specified time or until
further order of the court. It may be granted at any stage of a suit and is regulated by the Code of Civil
Procedure 19082. Such an injunction is granted at the instance of the plaintiff, at the discretion of the court, if
it is proved to its satisfaction that, unless the defendant is immediately restrained by an injunction, irreparable
loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of a temporary
injunction is, thus, to maintain the status quo pending hearing3 and disposal of the suit on merits, till further
orders are made by the court4. A court may refuse to grant an interim injunction against a corporation if the
plaintiff fails to show that he has a legal right that has been infringed5.
It has also to be shown that balance of convenience lies in maintaining the status quo. When the balance of
convenience lies in favour of the defendant, an interim injunction cannot be granted in favour of the plaintiff
on the ground that there is a prima facie case in his favour6.
The guiding norms for the grant of an interim injunction are as follows7:
(1) extent of damages being an adequate remedy;

(2) protection of the plaintiff's interest for violation of his rights, having regard to the injury that may
be suffered by the defendants by reason therefor;
(3) the factum of strength of one party's case being stronger than the other's;
(4) absence of any fixed rules or notions in the matter of grant of injunctions;
(5) likelihood of an irreparable loss and injury being caused to a party;
(6) balance of convenience or inconvenience to a party;
(7) the extent of adverse impact on the general public by the grant or refusal of injunction which
can or cannot be compensated otherwise.
Ex parte temporary injunctions may also be granted under the Code of Civil Procedure 19088. The court
must, before granting an injunction, direct service of a notice concerning the same be given to the opposite
party, except where it appears that the object of granting the injunction would be defeated by the delay9.
The guiding principles for grant of an ad interim ex parte injunction are as follows10:
(a) whether an irreparable or serious mischief will ensue to the plaintiff;

(b) whether the refusal of ex parte injunction would involve greater injustice than the grant of it;
(c) the time at which the plaintiff first had notice of the act complained so as to prevent the making
of improper order against a party in his absence;
(d) whether the plaintiff had acquiesced for sometime and in such circumstances it will not grant
496
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ex parte injunction;
(e) whether the party applying for an ex parte injunction has shown utmost good faith in making
the application;
If granted, the ad interim ex parte injunction would operate for a limited period of time. In addition to
everything, general principles like prima facie case, balance of convenience and irreparable loss would also
be considered by the court11. An injunction order12 passed by the court is appealable. The party affected by
the order may either to move the appellate Court or may approach the same court that passed the ex parte
order for relief13.
1 As to temporary injunctions see injunctions [170.020] and following.
2 See the Code of Civil Procedure o XXXIX rr 1 and 2 (see CIVIL PROCEDURE[65.386] and following). A Venkatasubbiah
Naidu v S Chellappan AIR 2000 SC 3032 [LNIND 2000 SC 2275] [LNIND 2000 SC 2275] [LNIND 2000 SC 2275], A
Venkatasubbiah Naidu v S Chellappan (2000) 7 SCC 695 [LNIND 2000 SC 2275] [LNIND 2000 SC 2275] [LNIND 2000 SC
2275], A Venkatasubbiah Naidu v S Chellappan (2000) 6 Scale 398 [LNIND 2000 SC 2275] [LNIND 2000 SC 2275] [LNIND
2000 SC 2275].
4 See [170]INJUNCTIONS.
5 Chaman Lal v Municipal Corporation of Delhi AIR 1978 Del 174 [LNIND 1977 DEL 102] [LNIND 1977 DEL 102] [LNIND 1977
DEL 102], Chaman Lal v Municipal Corporation of Delhi (1978) Rajdhani LR 177, Chaman Lal v Municipal Corporation of Delhi
(1978) 1 Del 292.
6 Narayan v R Vaidyanath AIR 1975 Kant 117 [LNIND 1974 KANT 194] [LNIND 1974 KANT 194] [LNIND 1974 KANT 194],
Narayan v R Vaidyanath (1974) ILR Kant 1275, Narayan v R Vaidyanath (1974) 2 Kant LJ 205; Municipal Corporation of Delhi
v Suresh Chandra AIR 1976 SC 2621, Municipal Corporation of Delhi v Suresh Chandra (1976) 4 SCC 719, Municipal
Corporation of Delhi v Suresh Chandra [1977] 2 SCR 10.
7 Colgate Palmolive (India) Ltd v Hindustan Lever Ltd (1999) 7 SCC 1 [LNIND 1999 SC 713] [LNIND 1999 SC 713] [LNIND
1999 SC 713].
8 See the Code of Civil Procedure o XXXIX r 1 (see CIVIL PROCEDURE[65.386] and following). As to the meaning of ex parte
decree see CIVIL PROCEDURE[65.334].
9 Ie under the Code of Civil Procedure o XXXIX r 3 (see CIVIL PROCEDURE[65.391] and following).
10 Morgan Stanley Mutual Fund v Kartick Das (1994) 4 SCC 225 [LNIND 1994 SC 546] [LNIND 1994 SC 546] [LNIND 1994
SC 546], Morgan Stanley Mutual Fund v Kartick Das (1994) 3 JT 654, Morgan Stanley Mutual Fund v Kartick Das (1994) 2
Scale 1121; A Venkatasubbiah Naidu v S Chellappan AIR 2000 SC 3032 [LNIND 2000 SC 2275] [LNIND 2000 SC 2275]
[LNIND 2000 SC 2275], A Venkatasubbiah Naidu v S Chellappan (2000) 7 SCC 695 [LNIND 2000 SC 2275] [LNIND 2000 SC
2275] [LNIND 2000 SC 2275], A Venkatasubbiah Naidu v S Chellappan (2000) 6 Scale 398 [LNIND 2000 SC 2275] [LNIND
2000 SC 2275] [LNIND 2000 SC 2275].
12 Ie an injunction order under the Code of Civil Procedure 1908 O XLIII r 1 (see injunctions [170.051]). See also CIVIL
PROCEDURE[65.734] and following.
13 Ie appealable under the Code of Civil Procedure 1908 O XLIII r 1 (see injunctions [170.051]). See also CIVIL
PROCEDURE[65.734] and following.

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(2) INJUNCTIONS/[005.343] Perpetual
injunctions
[005.343] Perpetual injunctions A perpetual injunction1 can be granted under the Specific Relief Act 19632
497
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by a decree made after the hearing3 and upon the merits of the suit. A perpetual injunction may be granted
to the plaintiff to prevent the breach of an obligation existing in his favour, whether expressly or by
implication4.
A perpetual injunction denies the defendant from asserting a right or from committing an act, which would be
contrary to the rights of the plaintiff. Ordinarily, an injunction is not issued to prevent breach of a contract, as
damages may be a sufficient recompense for a breach of contract5. However, if a standard to ascertain the
damages caused by the non performance of a contract does not exist or the act agreed to be done is such
that compensation in money for its non performance would not afford adequate relief, an injunction may be
granted to prevent its breach6.
The court may grant a perpetual injunction when the defendant invades or threatens to invade the plaintiff's
right to or enjoyment of a certain property:
(1) where a standard for ascertaining the actual damage caused or likely to be caused by invasion
does not exist; or
(2) where the invasion is such that compensation in money would not afford adequate relief; or
(3) where the injunction is necessary to prevent multiplicity of judicial proceedings7.
1 As to perpetual injunction see INJUNCTIONS[170.015] and following.
2 See the Specific Relief Act 1963 s 37(2) (see INJUNCTIONS[170.009]).
5 As to damages in actions bases on contract see DAMAGES[115.132].
6 Ramchandra Tanwar v Ram Rakhmal Amichand AIR 1971 Raj 292, Ramchandra Tanwar v Ram Rakhmal Amichand (1971)
Raj LW 61.

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(2) INJUNCTIONS/[005.344] Mandatory
injunctions
[005.344] Mandatory injunctions A mandatory injunction1 not only involves prohibition2 but also imposes a
positive duty on the defendant to act. When to prevent the breach of an obligation, it is necessary to compel
the performance of certain acts which the court is capable of enforcing, the court may, in its discretion grant
an injunction to prevent the breach of the act complained of and also to compel performance of the requisite
acts3.
The nature of a mandatory injunction is like the writ of mandamus4. Both are orders passed by courts, asking
an administrative authority to perform a legal duty or to desist from doing an illegal act and disregard of both
operates as contempt of court. In both, the courts would not extend their protection if there is an alternative
legal remedy5 available to the plaintiff or petitioner. However, an injunction has several advantages over
mandamus. First, a suit for injunction6 can be filed in the district court, whereas a petition for mandamus has
to be made to the high court. Secondly, while oral evidence can be taken by the courts in a suit for injunction,
the high courts in writ petitions are generally averse to investigating disputed questions of fact by taking
evidence, except through affidavits. The scope of judicial review is, therefore, wider in a suit for injunction7.
Thirdly, claims for injunction and damages may be combined in the same suit. On the other hand, courts do
498
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not usually award damages while entertaining applications for mandamus8.
However, one of the disadvantages of injunction lies in it being a statutory remedy as a statute may bar the
courts from entertaining suits for injunctions9. Another limitation, from which the remedy by way of injunction
suffers, is the requirement of notice mandated by it10. Thirdly, while injunction is a dilatory remedy, the high
courts give precedence to disposal of writ petitions over other work11.
1 As to mandatory injunctions see INJUNCTIONS[170.013] and following.
3 See the Specific Relief Act 1963 s 39 (see INJUNCTIONS[170.001]).
5 As to alternative legal remedy see [005.230] and [005.272]].
6 As to when a suit for an injunction may lie see INJUNCTION[170.027].
7 See INJUNCTIONS [170].
9 Raju Bahadur Kamakhya Narain Singh v Union of India AIR 1966 Pat 305, Raju Bahadur Kamakhya Narain Singh v Union of
India ILR 44 Pat 22, Raju Bahadur Kamakhya Narain Singh v Union of India (1964) 51 ITR 596; Baldeodas Bajoria v Governor
of United Provinces AIR 1945 Cal 44, Baldeodas Bajoria v Governor of United Provinces (1944) ILR IC 181.
10 Ie the requirement prescribed by the Code of Civil Procedure s 80 (see CIVIL PROCEDURE[65.565] and following). Sawai
Singhai Nirmal Chand v Union of India AIR 1966 SC 1068 [LNIND 1965 SC 235] [LNIND 1965 SC 235] [LNIND 1965 SC 235],
Sawai Singhai Nirmal Chand v Union of India [1966] 1 SCR 986 [LNIND 1965 SC 235] [LNIND 1965 SC 235] [LNIND 1965 SC
235]; Bhagchand Dagdusa Gujrathi v Secretary of State for India AIR 1967 PC 176, Bhagchand Dagdusa Gujrathi v Secretary
of State for India 25 ALJ 641, Bhagchand Dagdusa Gujrathi v Secretary of State for India 29 BLR 1227.
11 Law Commission of India, ' Report on Reform of Judicial Administration' (14th Report, Vol II) p 691.

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(3) DECLARATIONS/[005.345]
Introduction
[005.345] Introduction A declaration is a private law remedy adapted to public law situations. In a
declaratory action or decree, a court declares the rights of the concerned parties without giving further relief.
It has no coercive force and it cannot quash any decision that may have been taken by an administrative
authority. Declaration differs from an ordinary judgment that may be enforced through execution
proceedings. A declaratory judgment does not prescribe any sanction against the defendant1.
The purpose of declaration is to avoid future litigation by removing existing causes or controversies, for
instance, where a person is in possession of certain property under a title about which there exists a legal
doubt, he may obtain a declaration in his favour to clear his title. A declaratory action is particularly useful
where a legal dispute exists but no positive wrong has taken place entitling a party to claim coercive relief.
Through a declaration, inconvenience and the prolongation of uncertainty are avoided2. However, for a
declaration, it is essential that some genuine dispute exists; though no violation of the rights of either party
may have taken place, before a court will give a declaratory relief3.
1 As to when declarations may or may not be granted see INJUNCTIONS[170.029] and following.
2 De Smith, 'Judicial Review of Administrative Action' (1980) p 475; Yardley, 'A Source Book of English Administrative Law'
(1963) p 253.
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3 See note 1 above.

Declaration, when may be granted
[005.346] Declaration, when may be granted A declaration can be granted by the court under the Specific
Relief Act 1963 .Any person entitled to any 'legal character' or to any right as to any property may institute a
suit against any person, denying or interested to deny his title to such character or right. The court may, in its
discretion, make a declaration therein that he is so entitled and the plaintiff need not in such suit ask for any
further relief1. However, a court would not make any such declaration where the plaintiff, being able to seek
further relief than a mere declaration of title, omits to do so. A declaration made by the court is binding only
on the parties to the suit and persons claiming through them2.
The expression 'legal character'3 may include various rights of the plaintiff. It means a position recognised by
law and is synonymous with legal status4. Thus, a declaration may be sought that the plaintiff's nomination
paper at a municipal election has been illegally rejected and that the defendant has not been duly elected as
a member of the municipal committee5.
Government servants, employees of statutory corporations and of non-statutory bodies, which are regarded
as instrumentalities of the state, have a status in respect of which declaratory relief can be granted6.
Therefore, a suit for declaration lies that an order compulsorily retiring the plaintiff is illegal and ultra vires7.
Where the Board of Revenue converted, in revision, the order of suspension of the plaintiff into one of
dismissal, the plaintiff could sue for a declaration that the Board's order was without jurisdiction and infringed
the relevant law8.
In the matter of employer employee relationship, a court may grant a declaration9:
(1) where a public servant has been dismissed in contravention of a guarantee10;

(2) where a worker has been dismissed in contravention of industrial and labour law; and
(3) where a statutory body has acted in breach of a mandatory obligation imposed by a statute.
A suit for declaration that the action of an administrator is void, is maintainable11. A ratepayer can seek a
declaration that a sale of municipal land by the municipal committee is ultra vires12. Further, the expression
'right as to property'13 is also of broad significance, as it does not mean a right in the property.
The expression 'legal character' or right to property does not cover merely pecuniary14 or contractual
relationship15. In a contractual or pecuniary relationship, a suit for debt or damages, as the case may be, will
lie but not a suit for declaration16.
1 See the Specific Relief Act s 34 (see INJUNCTIONS[170.029]). As to when declarations may or may not be granted see
2 See the Specific Relief Act s 35.
3 Ie as used under the Specific Relief Act s 34 (see INJUNCTIONS[170.029]).
4 General Shanta Shamsher Jung Bahadur Rana v Kamani Bros Pvt Ltd AIR 1959 Bom 201 [LNIND 1958 BOM 1] [LNIND
1958 BOM 1] [LNIND 1958 BOM 1], General Shanta Shamsher Jung Bahadur Rana v Kamani Bros Pvt Ltd 60 Bom LR 1024.
5 Sat Narain Gurwal v Hanuman Prashad AIR 1946 Lah 85, Sat Narain Gurwal v Hanuman Prashad 47 PLR 94, Sat Narain
Gurwal v Hanuman Prashad 224 IC 322.
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1975 SC 79] [LNIND 1975 SC 79], Sukhdev Singh v Bhagatram Sardar Singh Raghuvanshi [1975] 2 SCR 619.
7 Union of India v Kedereswar AIR 1959 HP 32.
8 Secretary of State v Subba Rao AIR 1933 Mad 618 [LNIND 1933 MAD 42] [LNIND 1933 MAD 42] [LNIND 1933 MAD 42],
Secretary of State v Subba Rao 144 IC 400, Secretary of State v Subba Rao 65 MLJ 186.
9 Mysore State Road Transport Corporation v Mirja Khasim Ali Beg AIR 1977 SC 747 [LNIND 1976 SC 461] [LNIND 1976 SC
461] [LNIND 1976 SC 461], Mysore State Road Transport Corporation v Mirja Khasim Ali Beg (1977) 2 SCC 457 [LNIND 1976
SC 461] [LNIND 1976 SC 461] [LNIND 1976 SC 461], Mysore State Road Transport Corporation v Mirja Khasim Ali Beg [1977]
2 SCR 282 [LNIND 1976 SC 461] [LNIND 1976 SC 461] [LNIND 1976 SC 461]; Executive Committee of Vaish Degree College,
Shamli v Lakshmi Narain AIR 1976 SC 888 [LNIND 1975 SC 514] [LNIND 1975 SC 514] [LNIND 1975 SC 514], Executive
Committee of Vaish Degree College, Shamli v Lakshmi Narain (1976) 2 SCC 58 [LNIND 1975 SC 514] [LNIND 1975 SC 514]
[LNIND 1975 SC 514], Executive Committee of Vaish Degree College, Shamli v Lakshmi Narain [1976] 2 SCR 1006 [LNIND
10 Ie a guarantee contained under the Constitution of India art 311 (see generally[80]CONSTITUTIONAL LAW ).
11 Government of Pepsu v Pratap Singh AIR 1952 Pepsu 119 (the collector made an award as regards compensation payable
for certain lands acquired by the government under the Patiala Land Acquisition Act; the land was being acquired for a
company; the company appealed against the award to the Revenue Commissioner who set it aside; he remanded the matter to
the collector for a fresh award being made; a suit was brought for declaration that the act of the Revenue Commissioner was
ultra vires; the high court held that the suit was maintainable under Patiala Land Acquisition Act s 34).
12 Ajudhia Nath Dowarka Nath v Amar Nath Gupta AIR 1961 Punj 352.
13 Ie as used under the Specific Relief Act 1963 s 34 (see INJUNCTIONS[170.029]).
14 Mahabir Shamsher Jung Bahadur Rana v Lloyds Bank Ltd AIR 1968 Cal 371 [LNIND 1967 CAL 75] [LNIND 1967 CAL 75]
[LNIND 1967 CAL 75], Mahabir Shamsher Jung Bahadur Rana v Lloyds Bank Ltd 72 Cal WN 94.
15 Dahyalal Bapulal Raval v Patan Municipality (1967) 8 ILR Guj 18; Surendranath Shukla v Indian Airlines AIR 1966 Cal 272
[LNIND 1965 CAL 97] [LNIND 1965 CAL 97] [LNIND 1965 CAL 97], Surendranath Shukla v Indian Airlines (1965) 11 Fac LR
263, Surendranath Shukla v Indian Airlines (1966) 1 LLJ 201 [LNIND 1965 CAL 97] [LNIND 1965 CAL 97] [LNIND 1965 CAL
97]; Andhra University, Visakhapatnam v Korada Durga Lakshmi Manoharam (1951) 1 Mad LJ 518; KP Ramkrishna Pattar v K
P Narayana Pattar, (1916) 39 ILR Mad 80.
16 As to damages in actions based on contract see DAMAGES[115.132].

Declaration with consequential relief
[005.347] Declaration with consequential relief There is a difference between a declaration coupled with a
claim for a specified sum as a consequential relief and a case where the sole prayer is for declaration that a
certain sum belongs to the plaintiff. The former comes within the purview of the Specific Relief Act 1963 but
not the latter1. The Court fees Act 1870 regards a suit for declaration with consequential relief as distinct
from that for a declaration simpliciter. In the former case, the court fee is to be computed according to the
amount of the relief sought whereas in the latter case, only a fixed nominal fee is payable. Therefore, a
plaintiff may like to go in for a declaration simpliciter to save on court fees2.
If the plaintiff can claim further relief he must do so. The object behind this is to prevent multiplicity of suits by
preventing a person from getting a mere declaration of right in one suit and then seeking the remedy in
another suit3. The relief provided for does not mean every kind of relief but one that would complete the
claim of the plaintiff without resulting in multiplicity of suits. However, if the relief is remote and not connected
with the cause of action, then the plaintiff need not claim it. The relief must be appropriate to and consequent
on the right asserted or denied4.
A suit for declaration may be denied if the consequential relief which the plaintiff can claim is not claimed5.
However, the court may permit the plaintiff to amend the plaint6. Whether the consequential relief could have
been claimed or not depends upon the facts and circumstances of each case. In the matter of wrongful
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dismissal from service, the plaintiff must claim not only a declaration that his dismissal was wrongful but also
the consequential relief of reinstatement, arrears of salary and damages wherever necessary7. The further
relief contemplated, is against the defendant and not a third party. Thus, where the defendant is not in
possession and not in a position to deliver possession to the plaintiff, it is not necessary for the plaintiff in a
suit for declaration of title to property to claim possession8. Whether the plaintiff could have claimed the
consequential relief or not remains uncertain, until a case is decided9.
Grant of declaratory relief is discretionary with the court10. A court may not grant a declaration when it has no
utility11. For instance, when consequential relief in the form of mandatory injunction12 is prayed for, the court
may not grant it always13. The court, may not grant it if the suit is likely to become useless due to a
subsequent legislation that is to have a retrospective effect14. The relief may also be refused in cases where
another appropriate or alternative legal remedy is available15.
A declaratory action is not as popular and effective a remedy as writs16 because:
(1) a declaratory decree is a statutory remedy and can be excluded by a statute17;

(2) two months' notice under Code of Civil Procedure 1908 has to be given before a suit for
declaration against the government can be filed18; and
(3) a suit for declaration is to be filed in a lower court where its disposal takes long while a person
can go straight to the high court for a writ19.
1 Mahabir Shamsher Jung Bahadur Rana v Lloyds Bank Ltd AIR 1968 Cal 371 [LNIND 1967 CAL 75] [LNIND 1967 CAL 75]
[LNIND 1967 CAL 75], Mahabir Shamsher Jung Bahadur Rana v Lloyds Bank Ltd 72 Cal WN 94. As to the meaning of
declaration see [005.345]-[005.348]. As to when declarations may or may not be granted see INJUNCTIONS[170.029] and
following.
2 See the Court Fees Act 1870.
3 See the Specific Relief Act s 34 proviso (see INJUNCTIONS[170.030]). The Law Commission (report/year) has expressed the
opinion that the proviso must be abolished. It observed that the proviso was introduced by the Specific Relief Act 1963 with the
object of preventing multiplicity of proceedings. The Proviso has, however, given rise to a mass of case law as to what is 'further
relief and whether, 'further relief is such relief as could be sought for in the suit in which or in the court before which the
declaration is sought. It leads to injustice in many cases and it only results in an addition to the revenue to a certain extent.
4 N C Malik v Bhai Traders and Sinanciers (1967) 1 ILR Punj 558.
5 Union Territory of Tripura v Abnash Chandra Gautam AIR 1968 Tripura 29; Parmanand v District Board, Patna AIR 1962 Pat
452, Parmanand v District Board, Patna (1962) BLJR 519; Monthey Krishna Rao v Grandhi Anjaneyulu AIR 1954 Mad 113.
See however Pannalal Tayal v State of Madhya Pradesh AIR 1976 MP 48, Pannalal Tayal v State of Madhya Pradesh (1975)
LLJ 637, Pannalal Tayal v State of Madhya Pradesh (1975) MP LJ 545; G S Dutta v Union of India AIR 1966 J & K 124, G S
Dutta v Union of India (1966) Kash LJ 401.
6 S Bhagat Singh v Satnam Transport Co Ltd AIR 1961 Punj 278, S Bhagat Singh v Satnam Transport Co Ltd 62 Pun LR 924;
Anna Purna Dasi v Sarat Chandra Bhattacharjee AIR 1942 Cal 394, Anna Purna Dasi v Sarat Chandra Bhattacharjee 46 Cal
WN 355, Anna Purna Dasi v Sarat Chandra Bhattacharjee 207 IC 461.
7 C Mohd Yunus v Syed Unnissa AIR 1961 SC 808 [LNIND 1961 SC 58] [LNIND 1961 SC 58] [LNIND 1961 SC 58].
8 Deo Kuer v Sheo Prasad Singh AIR 1966 SC 359 [LNIND 1965 SC 118] [LNIND 1965 SC 118] [LNIND 1965 SC 118], 360,
Deo Kuer v Sheo Prasad Singh [1965] 3 SCR 655 [LNIND 1965 SC 118] [LNIND 1965 SC 118] [LNIND 1965 SC 118]; S
Gurdial Singh Bedi v Sunda Hire Purchase Corpn AIR 1970 Pat 7.
9 Parmanand v District Board, Patna AIR 1962 Pat 452, Parmanand v District Board, Patna (1962) BLJR 519 (consequential
relief must be claimed otherwise suit for declaration may be dismissed); see contra G S Dutta v Union of India AIR 1966 J & K
124, G S Dutta v Union of India (1966) Kash LJ 401 (if consequential relief is not claimed, the suit for a declaratory decree does
not become meaningless); S Bhagat Singh v Satnam Transport Co Ltd AIR 1961 Punj 278, S Bhagat Singh v Satnam
Transport Co Ltd 62 Pun LR 924.
10 Mysore State Road Transport Corporation v Mirja Khasim Ali Beg AIR 1977 SC 747 [LNIND 1976 SC 461] [LNIND 1976 SC
461] [LNIND 1976 SC 461], Mysore State Road Transport Corporation v Mirja Khasim Ali Beg (1977) 2 SCC 457 [LNIND 1976
SC 461] [LNIND 1976 SC 461] [LNIND 1976 SC 461], Mysore State Road Transport Corporation v Mirja Khasim Ali Beg [1977]
2 SCR 282 [LNIND 1976 SC 461] [LNIND 1976 SC 461] [LNIND 1976 SC 461] (that the discretion exercised by the lower court
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can be reversed by the superior court only if the discretion is not exercised by it in the spirit of the statute or according to the
rules of reason and justice); Bhairabendra Narayan Bhup v State of Assam AIR 1953 Assam 162 (a declaration was sought
that a Bill passed by the state legislature was ultra vires; the plaintiff apprehended that after the receipt of the Governor's
assent, the Bill would become an Act and when enforced would adversely affect his property rights; the court refused the
declaration saying that the grant of such a relief lay entirely within the court's judicial discretion and a party could not claim it as
a matter of law during its formative stages); Chotey Lal v Sate of Uttar Pradesh AIR 1951 All 228 [LNIND 1951 ALL 11] [LNIND
1951 ALL 11] [LNIND 1951 ALL 11], Chotey Lal v Sate of Uttar Pradesh (1951) All LJ 246; Mulji Haridas v Ibrahim Rahimtullah
AIR 1932 Bom 166, Mulji Haridas v Ibrahim Rahimtullah 34 BLR 231, Mulji Haridas v Ibrahim Rahimtullah 56 Bom 254..
11 Saraswati Industrial Syndicate v Union of India AIR 1975 SC 460 [LNIND 1974 SC 257] [LNIND 1974 SC 257] [LNIND 1974
SC 257], Saraswati Industrial Syndicate v Union of India (1974) 2 SCC 630 [LNIND 1974 SC 257] [LNIND 1974 SC 257]
[LNIND 1974 SC 257].
12 As to mandatory injunction see INJUNCTIONS[170.013] and following.
13 See contra Raghunath v Municipal Board, Mathura AIR 1952 All 465 [LNIND 1950 ALL 258] [LNIND 1950 ALL 258] [LNIND
1950 ALL 258].
14 Bandhu Singh v Board of Revenue AIR 1957 All 719 [LNIND 1957 ALL 120] [LNIND 1957 ALL 120] [LNIND 1957 ALL 120];
Muhammad Ismail v Patna City Municipality AIR 1943 Pat 34, Muhammad Ismail v Patna City Municipality 21 Pat 449,
Muhammad Ismail v Patna City Municipality 204 IC 488 (the court could not grant a declaration in 1942 saying that licence
must have been renewed by a municipality for the year 1936-37 as such a declaration would be useless).
15 Mathewson v Gordhan Tribedi, (1990) 5 Cal WN 654; Poran Sookh Chander v Parbutty (1878) 3 ILR Cal 612. As to
alternative legal remedy see [005.230] and [005.272].
17 Munni Devi v Gokal Chand AIR 1970 SC 1727 [LNIND 1969 SC 331] [LNIND 1969 SC 331] [LNIND 1969 SC 331], Munni
Devi v Gokal Chand 1969 (2) SCC 879 [LNIND 1969 SC 331] [LNIND 1969 SC 331] [LNIND 1969 SC 331], Munni Devi v Gokal
Chand [1970] 2 SCR 363 [LNIND 1969 SC 331] [LNIND 1969 SC 331] [LNIND 1969 SC 331].
18 See the Code of Civil Procedure 1908 s 80 (see CIVIL PROCEDURE[65.565] and following). Sawai Singhai Nirmal Chand v
Union of India AIR 1966 SC 1068 [LNIND 1965 SC 235] [LNIND 1965 SC 235] [LNIND 1965 SC 235], Sawai Singhai Nirmal
Chand v Union of India [1966] 1 SCR 986 [LNIND 1965 SC 235] [LNIND 1965 SC 235] [LNIND 1965 SC 235].
19
Declaration may be used as a means to circumvent the technicalities of certiorari when administrative authorities act against
law: Pyx Granite Co Ltd v Ministry of Housing & Local Government, (1960) AC 260.
See De Smith, 'Judicial Review of Administrative Action' (1980); Wade, 'Adminsitrative law' (1982): declaration can be granted
whether or not any consequential relief is or can be claimed. Another major advantage of declaration over prerogative remedies
is that it is a good substitute for remedies that cannot be granted against the government, such as, injunction and mandamus.
Dyson v Attorney General (1919) 1 KB 410, Dyson v Attorney General (1912) 1 Ch 158 (where the Court of Appeal justified a
subject testing the justifiability of action of government officials purporting to act under statutory provisions).

Declaration granted independently
[005.348] Declaration granted independently The discretion of courts as to declaration of status or right
provided by the Specific Relief Act 19631 is not exhaustive. Declarations may be granted independently by
courts2. However, it is not an absolute rule3. Furthermore, high courts and the Supreme Court may grant
declarations under their respective writ jurisdiction4.
1 See the Specific Relief Act 1963 s 34 (see INJUNCTIONS[170.029])
2 Supreme General Films Exchange Ltd v His Highness Maharaja Sir Brijnath Singhi Deo of Maihar AIR 1975 SC 1810 [LNIND
1975 SC 250] [LNIND 1975 SC 250] [LNIND 1975 SC 250], Supreme General Films Exchange Ltd v His Highness Maharaja Sir
Brijnath Singhi Deo of Maihar (1975) 2 SCC 530 [LNIND 1975 SC 250] [LNIND 1975 SC 250] [LNIND 1975 SC 250], Supreme
503 100
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General Films Exchange Ltd v His Highness Maharaja Sir Brijnath Singhi Deo of Maihar [1976] 1 SCR 237 [LNIND 1975 SC
250] [LNIND 1975 SC 250] [LNIND 1975 SC 250]; Sisir Kumar Chandra v Monorama Chandra AIR 1972 Cal 283 [LNIND 1972
CAL 8] [LNIND 1972 CAL 8] [LNIND 1972 CAL 8]; Konduru Sashu Reddi v Veareddi Rama Raghava Reddy AIR 1964 AP 118
[LNIND 1962 AP 117] [LNIND 1962 AP 117] [LNIND 1962 AP 117]; Vema Reddi Raghava Reddy v Kondury Sesha Reddy AIR
1967 SC 436 [LNIND 1966 SC 128] [LNIND 1966 SC 128] [LNIND 1966 SC 128], Vema Reddi Raghava Reddy v Kondury
Sesha Reddy [1966] Supp SCR 270, Vema Reddi Raghava Reddy v Kondury Sesha Reddy (1967) 1 SCJ 836 [LNIND 1966 SC
128] [LNIND 1966 SC 128] [LNIND 1966 SC 128](a worshipper filed a suit for declaration that certain properties belonged to the
deity; here since the worshipper himself was not claiming any legal character or right in the property, the suit did not fall within
the purview of the Specific Relief Act 1963 s 34; the Court held that s 34 was not exhaustive of declaratory decrees and the
worshipper was entitled to maintain the suit; that such suits lie independently of s 34 and are governed by the general
provisions of the Code of Civil Procedure 1908); Thiruvengada Mudaliar v T Narayana Reddiar AIR 1959 Mad 141 [LNIND 1958
MAD 19] [LNIND 1958 MAD 19] [LNIND 1958 MAD 19]; Krishna Chandra v Mahabir Prasad AIR 1933 All 488, Krishna
Chandra v Mahabir Prasad (1933) ALJ 673; Subba Rao v Secretary of State AIR 1930 Mad 349 [LNIND 1929 MAD 297]
[LNIND 1929 MAD 297] [LNIND 1929 MAD 297]; Fischer v SS for India (1889) 26 IA 16.
3 Maulvi Muhammad Fahimal Haq v Jagat Ballav Ghosh AIR 1923 Pat 475, Maulvi Muhammad Fahimal Haq v Jagat Ballav
Ghosh 74 IC 403, Maulvi Muhammad Fahimal Haq v Jagat Ballav Ghosh 4 PLT 675; Sheoparsan Singh v Ramnandan
Prasad Narayan Singh AIR 1916 PC 78, Sheoparsan Singh v Ramnandan Prasad Narayan Singh 14 All LJ 466, Sheoparsan
Singh v Ramnandan Prasad Narayan Singh 18 Bom LR 397; Bai Shri Vaktuba v Thakore Agarsinghji Raisinghji, (1910) 34 ILR
Bom 676.
4 See the Constitution of India arts 226 and 32 (see generally[80]CONSTITUTIONAL LAW).

ADMINISTRATIVE LAW/30. STATUTORY JUDICIAL REMEDIES/(4) SPECIFIC REMEDIES/[005.349]
Generally
[005.349] Generally A statute, that imposes a specific obligation on a person or confers power on an
administrative body, may provide a specific mechanism of its own to invoke the jurisdiction of a court. For
instance, the Income Tax Act 1961 provides for a referencing technique whereby the Income Tax Appellate
tribunal may stipulate reference to a high court1. Thus, the Commissioner of Income Tax or the assessee
may apply to the tribunal to refer any question of law arising out of the tribunal's order, to the high court. This
must be done within 60 days of the receipt of the order from the tribunal. Thereafter, the tribunal must draw a
statement of the case and refer it to the high court within 120 days of the receipt of such application. If the
tribunal refuses to do so, the applicant may appeal to the high court which may require the tribunal to state
the case and refer the same to it. If the tribunal order gives rise only to questions of fact no point of law, the
high court will be justified in refusing to give direction to the tribunal to refer a case to it2.
A few characteristic features of the reference procedure are as follows:3
(1) Only questions of law can be referred to a high court and thus, the tribunal is the final authority
as regards questions of fact4.
(2) Only such question of law may be referred to a high court, as arise out of the order of the
tribunal.
(3) While in an appeal, new question of law arising from established facts may be urged before
the appellate forum, it cannot be done through the reference technique in order to protect the
high courts from being flooded by income tax cases which would inevitably delay both the
judicial and tax assessment processes.
(4) Though the tribunal remains the final arbiter of facts, findings of fact can become questions of
law in some situations, for instance, when: (a) when there is no legal evidence to support the
facts found by the tribunal; or (b) the findings are unreasonable or perverse5.
Reference can be made only of 'questions of law arising out of the order of the tribunal'. A question raised
before the tribunal and dealt by it is clearly the one arising out of the order. A question raised before the
tribunal but not dealt by it can be deemed to have arisen out of its order. A question not raised before the
tribunal but, nevertheless, dealt by it, is also a question arising out of its order. However, a question neither
raised before the tribunal nor dealt by it is not one arising out of its order6.
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If the tribunal is of the opinion that, on account of conflict among the high courts on any particular question of
law, it is expedient that a reference may be made directly to the Supreme Court, the tribunal may do so7.
A few more examples of specific statutory remedies are as follows:
(1) Under the Stamp Acts 57, the Chief Controlling Revenue Authority may state any case to the concerned high
court, along with its opinion thereon. The Supreme Court has characterised the provision as imposing an
obligation on the Chief Revenue Authority and the party affected by the assessment of the stamp duty can also
demand such a reference: Chief Controlling Revenue Authority v Maharashtra Sugar Mills AIR 1950 SC 218
[LNIND 1950 SC 31] [LNIND 1950 SC 31] [LNIND 1950 SC 31], 220.
(2) Under the Advocates Act 1961, the disciplinary committee of a State Bar Council can punish an advocate for
professional misconduct. An appeal lies to the Bar Council of India and finally, to the Supreme Court: Chandra
Shekhar Soni v Bar council of Rajasthan AIR 1983 SC 1012.
(3) Under the Land Acquisition Act 1894 s 18, a person whose land has been acquired and who is not satisfied
with the collector's decision on the quantum of compensation, can require the collector to refer the matter to
the court. The court may award any compensation between what is awarded by the collector and what is
demanded by the landowner: SLA Officer v TA Setty AIR 1959 SC 429 [LNIND 1958 SC 140] [LNIND 1958 SC
140] [LNIND 1958 SC 140]; Md Hasnuddin v State of Maharashtra AIR 1979 SC 404 [LNIND 1978 SC 407]
[LNIND 1978 SC 407] [LNIND 1978 SC 407].
2 See the Income Tax Act 1961 s 256.
3 Comr of Income Tax v Indian Molasses AIR 1970 SC 2067 [LNIND 1970 SC 304] [LNIND 1970 SC 304] [LNIND 1970 SC
304]; EI Industries v Comr of Income Tax AIR 1967 SC 1554 [LNIND 1967 SC 111] [LNIND 1967 SC 111] [LNIND 1967 SC
111]; Comr of Income Tax v Scindia Steamship and Navigation Co AIR 1961 SC 1633 [LNIND 1961 SC 159] [LNIND 1961 SC
159] [LNIND 1961 SC 159].
4 Nawaganj Sugar Mills v Comr of Income Tax AIR 1972 SC 1684; Karnani Properties Ltd v Comr of Income Tax AIR 1972 SC
5 Comr of Income Tax v H S Chakravarty AIR 1975 SC 15; Mehta Parikh & Co v Comr of Income Tax AIR 1956 SC 554
6 Comr of Income Tax v Indian Molasses AIR 1970 SC 2067 [LNIND 1970 SC 304] [LNIND 1970 SC 304] [LNIND 1970 SC
304]; Comr of Income Tax v Scindia Steamship and Navigation Co AIR 1961 SC 1633 [LNIND 1961 SC 159] [LNIND 1961 SC
159] [LNIND 1961 SC 159].
7 See note 6 above.

ADMINISTRATIVE LAW/31 GOVERNMENT PRIVILEGE NOT TO PRODUCE DOCUMENTS/(1)
GENERALLY/[005.350] Introduction
[005.350] Introduction The government has privilege not to produce its unpublished record in courts. A
person cannot be permitted to give any evidence derived from unpublished official records relating to any
affairs of state, except with the permission of the officer at the head of the department concerned, who must
give or withhold such permission as he thinks fit1.
The only justification for the exercise of such a privilege may be public interest that is, when the public
interest served by disclosure is outweighed by the public interest served by non-disclosure of the document
in question. A valid claim for privilege proceeds on the basis that the production of an unpublished record
would cause injury to public interest and that, where a conflict arises between public interest and private
interest, the latter must yield to the former2. However, care has to be taken to see that interest other than
that of the public do not masquerade in the garb of public interest and take undue advantage the provision3.
505 102
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1 See the Indian Evidence Act 1872 s 123 (see EVIDENCE[145.205]).
Evidence Act 1872 s 123 is based on the common law principle wherein the Crown has the special privilege of being able to
prevent evidence from being given in a court if its disclosure would be contrary to the public interest.
As to disclosure of materials as an essential part of the rule of audi alteram partem see [005.060]. See generally LIMITATION
OF ACTIONS[205].
Duncan v Cammall Laved (1942) AC 624 (overruled in Conway v Rimmer [1968] AC 910, Conway v Rimmer [1968] 1 All ER
874, HL) (a minister's statement claiming privilege on the ground that disclosure of the document would be contrary to public
interest was final and conclusive; the minister's affidavit could not be called into question; the court could not question a claim of
privilege made in proper form, regardless of the nature of the document).
Conway v Rimmer [1968] AC 910, Conway v Rimmer [1968] 1 All ER 874, HL (a former probationer constable sued a former
police superintendent for malicious prosecution; in this connection, the plaintiff wanted some reports to be produced in the court
but the department claimed privilege in respect of these; the question was whether the claim for privilege could be sustained
and the House of Lords held that a statement by a minister cannot be accepted as conclusively preventing a court from ordering
production of any document that were involved ; the House thus ruled that the courts were entitled to balance the public
interest, as expressed by a minister, to withhold certain documents, against the public interest in ensuring that the
administration of justice must not be interfered with; a court will no doubt give full weight to the minister's view in every case;
immunity from production of a document may arise because of the sensitivity of its contents or because of the nature of the
document itself that is, certain classes of documents ought not to be disclosed whatever their contents may be, such as, cabinet
proceedings or documents concerned with policy making within departments and the like; however, there is a difference
between such documents and routine reports; the court can decide whether the document in question ought to be produced or
not in evidence; to decide this, the judge may see the document without showing it to the parties; if on reading the document the
judge feels that it ought to be produced, he can order its production; the House examined the documents in question and found
that there was nothing in them prejudicial to public interest and so the document were ordered to be produced; the House
criticised the rule that whole classes of documents could be withheld from the courts on the ground of protecting freedom and
candour of communication within the public service); Burmah Oil Co v Bank of England (1977) 1 WLR 473, Burmah Oil Co v
Bank of England (1979) 3 WLR 722.
3 Ie the Indian Evidence Act 1872 s 123 (see EVIDENCE[145.205])

ADMINISTRATIVE LAW/31 GOVERNMENT PRIVILEGE NOT TO PRODUCE DOCUMENTS/(1)
GENERALLY/[005.351] Privilege, when may be claimed
[005.351] Privilege, when may be claimed The privilege not to produce documents must not be claimed on
the ground that disclosure of the document might defeat the defence raised by the State. The effect of the
document on the ultimate course of litigation or its impact on the head of the department or the minister in
charge of the department or even the government in power, has no relevance in making a claim for
privilege1. The sole and the only test which must determine the decision of the head of the department is
injury to public interest and nothing else2.
In order to prevent the State from claiming privilege on extraneous grounds, following safeguards have been
laid, subject to which, privilege could be claimed3:
(1) the initial claim to the privilege must be made through an affidavit, generally by the minister
concerned; if not by him, then by the secretary of the department, but in the latter case, the
court may require an affidavit by the minister himself.
(2) The affidavit must indicate that each document in question has been carefully read and
considered and that the person making the affidavit is satisfied that its disclosure would lead to
public injury.
(3) The affidavit must also indicate briefly, within permissible limits, the reason why it is
apprehended that public interest would be injured by the disclosure of the document.
(4) If the court finds the affidavit unsatisfactory, then the person making the affidavit, whether he is
the minister or the secretary, can be summoned for cross examination4 on the relevant points.
506 103
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(5) On the substantive level, the court has power to determine whether the document relates to
the affairs of the State5.
(6) The court must decide on the validity of any such objection. The court, if it sees fit, may inspect
that document, unless it refers to matters of State or take other evidence to enable it to
determine on its admissibility.
(7) The court will not inspect the document in respect of which privilege is claimed, nor will it
permit any evidence as regards its contents, for if a document cannot be inspected its contents
cannot indirectly be proved. It can, however, take other collateral evidence to determine the
validity of the claim for privilege.
(8) If the court comes to the conclusion that the document does not fall in the category of the
affairs of the State, then it must reject the claim for privilege and direct its production.
(9) If the court comes to the conclusion that the document relates to the affairs of the State, then it
must leave it to the head of the department to decide whether he must permit its production or
not; a court does not have power to decide whether, as a matter of fact, public interest would
be injured or not by its disclosure.
1 Amar Chand Butail v Union of India AIR 1964 SC 1658 [LNIND 1964 SC 362] [LNIND 1964 SC 362] [LNIND 1964 SC 362],
Amar Chand Butail v Union of India 67 Pun LR 90 (a head of the department must never claim privilege only or even mainly on
the ground that the disclosure of the document in question may defeat the defence raised by the state; considerations which are
relevant in claiming privilege on the ground that the affairs of the state may be prejudiced by disclosure must always be
distinguished from considerations of expediency)
270], State of Punjab v Sodhi Sukhdev Singh [1961] 2 SCR 1961, State of Punjab v Sodhi Sukhdev Singh (1961) 2 SCJ 691
3 If the document cannot be inspected, its contents cannot indirectly be proved, however, that is not to say that other collateral
evidence cannot be produced which may assist the court in determining the validity of objection: State of Punjab v Sodhi
Sukhdev Singh AIR 1961 SC 493 [LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC 270], State of Punjab v Sodhi
Sukhdev Singh [1961] 2 SCR 1961, State of Punjab v Sodhi Sukhdev Singh (1961) 2 SCJ 691 [LNIND 1960 SC 270] [LNIND
1960 SC 270] [LNIND 1960 SC 270].
4 As to cross-examination as an essential part of the rule of audi alteram partem see [005.062]
5 The court has power to do so under the Indian Evidence Act 1872 s 162: a witness summoned to produce a document must,
if it is in his possession or power, bring it to court, notwithstanding any objection which there may be to its production or to its
admissibility (see EVIDENCE[145.230]).

ADMINISTRATIVE LAW/31 GOVERNMENT PRIVILEGE NOT TO PRODUCE DOCUMENTS/(2) AFFAIRS
OF STATE/[005.352] Meaning and scope
[005.352] Meaning and scope The term 'affairs of the State1' is of very wide amplitude and may cover even
business activities of the State in routine administration as also highly confidential matters pertaining to
defence, foreign affairs, cabinet minutes and the like. A modern State carries on activities of commercial
nature that could also be regarded as affairs of state.
A court may, while refusing to comment on the possibility of public injury that might result from
non-disclosure, hold an inquiry whether the undisclosed evidence relates to the dispute in question2.
There could be a class of documents which could claim privilege not by reason of their contents but by
reason of the fact that, if the said documents were disclosed, they would materially affect the freedom and
candour of expression of opinion in the determination and execution of public policies3. Thus, the minutes of
meeting amongst the council of ministers may not be allowed to be produced in the courts4.
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Though generally, the courts do not go into the contents of the documents claimed as privileged, it may, in
certain situations peruse those documents5. The government cannot however, enjoy immunity from
producing documents merely on the basis of the class doctrine irrespective of their content6.
1 Ie as mentioned under the Indian Evidence Act 1872 s 123 (see EVIDENCE[145.205]).
270], State of Punjab v Sodhi Sukhdev Singh [1961] 2 SCR 1961, State of Punjab v Sodhi Sukhdev Singh (1961) 2 SCJ 691
[LNIND 1960 SC 270] [LNIND 1960 SC 270] [LNIND 1960 SC 270](the respondent who was a district and sessions judge in a
state was removed from service; he made a representation against his removal; the council of ministers secured the advice of
the public service commission and thereafter decided to re-employ him in some suitable post; he then filed a suit challenging his
removal from service; he wanted certain documents to be produced in the court and the state claimed privilege in respect of
them; the court came to the conclusion that it cannot hold an inquiry into the possible injury to public interest which may result
form the disclosure of the document in question; however, the court is competent and bound to hold a preliminary inquiry and
determine the validity of the objections to its production and that necessarily involves an inquiry into the question as to whether
the evidence relates to an affair of the State under the Indian Evidence Act s 123 or not).
State of Uttar Pradesh v Chandra Mohan Nigam AIR 1977 SC 2411, State of Uttar Pradesh v Chandra Mohan Nigam (1977) 4
SCC 345, State of Uttar Pradesh v Chandra Mohan Nigam [1978] 1 SCR 521 (cabinet decision were also held to fall in this
category as they relate to the affairs of the State; production of such decision in the court would affect the integrity of the cabinet
in the determination and execution of public policies); State of Orissa v Jagannath Jona AIR 1977 SC 2201, State of Orissa v
Jagannath Jona (1977) 4 SCC 165 (a claim to the privilege in respect of character rolls and confidential reports of an employee
of the government was also upheld; these were confidential communications form one official to another and the disclosure of
such documents would have materially affected the freedom and candour of expression of opinion of officials whose duty was to
make entries therein; the carrying on of public administration in a proper manner was regarded as an affair of the state and
therefore, documents maintained for this purpose were related to affairs of State); Durga Prasad v Parveen AIR 1975 MP 196
[LNIND 1975 MP 35] [LNIND 1975 MP 35] [LNIND 1975 MP 35], Durga Prasad v Parveen (1975) LLJ 440 [LNIND 1975 MP 35]
[LNIND 1975 MP 35] [LNIND 1975 MP 35], Durga Prasad v Parveen (1975) MP LJ 801 (a claim to privilege, in respect of a file
containing intra departmental and inter departmental correspondence concerning a mining lease was upheld; the notes and
minutes made by respective officers on relevant files, opinions expressed, reports made and gist of official decisions reached in
the course of determination of the questions of policy were held exempt under the class doctrine); State of Punjab v Surjit
Singh AIR 1975 P & H 11, State of Punjab v Surjit Singh (1975) 1 Serv LR 433; Sujit Kumar Neogi v Union of India AIR 1970
Assam and Nagaland 131, Sujit Kumar Neogi v Union of India (1970) Lab IC 1573(the class doctrine was applied by the courts
and thus, administrative instructions and guidance notes secretly given to various authorities at different levels and to
subordinate officers in the departments were held to be privileged--as being documents relating to affairs of state under the
Indian Evidence Act 1872 s 123; the view was taken that officers were entitled to such advice and instructions from time to time
in dealing with matters involving law and order and discipline in the department).
See contra Ram Gopal v Union of India (1972) Serv LR 258; Niranjan Das Sehgal v State of Punjab AIR 1968 Punj 255,
Niranjan Das Sehgal v State of Punjab (1968) Lab IC 804, Niranjan Das Sehgal v State of Punjab (1968) ILR 2 Pun 171.
4 See the Indian Evidence Act 1872 s 123 (see EVIDENCE[145.205]): the question whether any and if so what advice was
tendered by ministers to the Governor must not be inquired into in any court.
5 State of Kerala v The Midland Rubber & Produce Co AIR 1971 Ker 228, State of Kerala v The Midland Rubber & Produce Co
(1971) Ker LJ 278 (the court rejected the claim of privilege of the government after inspecting the documents in question; court
pointed out that the sole criterion for deciding the question was whether by disclosing the contents of the documents, public
interest would suffer; after perusing, the court found that the documents had nothing to do with public interest; that the
documents were vital for the litigation between the parties and justice would be frustrated if the documents were withheld so far
as the plaintiff's claim was concerned); Muhammad Yusuf v State of Madras AIR 1971 Mad 468 [LNIND 1971 MAD 342]
[LNIND 1971 MAD 342] [LNIND 1971 MAD 342], Muhammad Yusuf v State of Madras 84 Mad LW 455 2 (the high court upheld
the claim in respect of inter governmental correspondence between the two state governments contained in one file but rejected
the claim in respect of other documents in the same file; however, before doing so, the court looked into the file itself; the court
held that under the Indian Evidence Act s 162, it had the overriding power to disallow a claim for privilege; however, the court
would exercise its discretionary power only in exceptional circumstances when the public interest served by the disclosure
clearly outweighed that served by the non disclosure).
6 RK Jain v Union of India AIR 1993 SC 1769 [LNIND 1993 SC 466] [LNIND 1993 SC 466] [LNIND 1993 SC 466], RK Jain v
Union of India (1993) 4 SCC 119 [LNIND 1993 SC 466] [LNIND 1993 SC 466] [LNIND 1993 SC 466]

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ADMINISTRATIVE LAW/31 GOVERNMENT PRIVILEGE NOT TO PRODUCE DOCUMENTS/(2) AFFAIRS

OF STATE/[005.353] Right of court to decide privilege
[005.353] Right of court to decide privilege It is for the court to decide whether the disputed document
relates to affairs of State and whether its exclusion is in public interest. This necessarily involves a balancing
of public interest in the administration of justice and the public interest served by non-production of the
document1. Mere secrecy or confidentially is no ground to refuse to produce a document in courts, unless it
can be shown that its disclosure would injure public interest2.
In order to bring the Indian law in line with the modern judicial thinking in England and to curtail, to a certain
extent, the government's privilege not to produce documents in courts, the Supreme Court gave the following
guidelines3:
(1) that the basis of the privilege was injury to public interest and that a court must proprio motu
exclude evidence, the production of which would be against public interest;
(2) that the principle of immunity of documents on the basis of class irrespective of their content
must be followed4;
(3) that if the court is not satisfied with the affidavit that the document needs to be protected in
public interest from production in court, it has power to inspect the document to satisfy itself
whether or not it requires protection and the statement of the head of the department that the
disclosure would injure public interest in not final;
(4) that a claim to the privilege in respect of a document cannot be rejected merely on the ground
that the affidavit is defective and it is for the court to decide whether the affidavit is clear in
regard to the objection about the nature of the document; if the court is satisfied with the
affidavit, it will order disclosure, however, if inspite of the affidavit, the court wishes to inspect
the document, it may do so; and
(5) that the publication of a part of a document does not render the rest of the document unfit for
protection.
Further, if on inspection, the court finds that any part of a document is innocuous in the sense that it does not
relate to the affairs of the State, the court may order disclosure of the innocuous part, provided that it does
not give a distorted or misleading picture. When an innocuous part of document is ordered to be produced,
the court may seal up other parts that are regarded as noxious because their disclosure would be
undesirable. Thus, final decision, in regard to immunity to produce documents, rests with the court. The court
has the residual power of inspection of the disputed document. The Supreme Court must satisfy itself
whether withholding the disclosure of certain documents is in public interest or not. If the court reaches the
conclusion that the document5: (i) does not relate to affairs of State; or (ii) that public interest does not
compel its non-disclosure; or (iii) the public interest in the administration of justice, in the particular case
before it, overrides all other aspects of public interest, the court will overrule the objection and order
disclosure of the document.
Certain classes of documents may be barred irrespective of their content, though exception can be made in
respect of a specified document falling in the class. For instance, information's relating to national security,
diplomatic relations, internal security or sensitive diplomatic correspondence, per se, are class documents
and public interest demands total immunity from their dosclosure6.
1 SP Gupta v President of India AIR 1982 SC 149, SP Gupta v President of India (1981) Supp SCC 87, SP Gupta v President
of India [1982] 2 SCR 365
2 SP Gupta v Union of India AIR 1982 SC 149, SP Gupta v Union of India (1981) Supp SCC 87, SP Gupta v Union of India
[1982] 2 SCR 365 (even if a document be confidential, it must be produced, notwithstanding its confidentiality, if it is necessary
for fairly disposing of the case, unless it can be shown that its disclosure would otherwise be injurious to public interest).
3 State of Uttar Pradesh v Raj Narain AIR 1975 SC 865 [LNIND 1975 SC 32] [LNIND 1975 SC 32] [LNIND 1975 SC 32], State
of Uttar Pradesh v Raj Narain (1975) 4 SCC 428 [LNIND 1975 SC 32] [LNIND 1975 SC 32] [LNIND 1975 SC 32] (a controversy
arose out of a claim of privilege by the Government of Uttar Pradesh in respect of the blue book-a booklet issued by the Central
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Government containing rules and instructions for the security of the Prime Minister while on tour and travel, the High Court of
Allahabad had rejected the claim for privilege on the ground that since a portion of the document had already been divulged in
the Lok Sabha, it ceased to be an unpublished document and so no privilege could be claimed in respect thereof; on appeal,
the Supreme Court reversed the Allahabad judgment ( Raj Narain v Indira Nehru Gandhi AIR 1974 All 324).
4 State of Uttar Pradesh v Raj Narain AIR 1975 SC 865 [LNIND 1975 SC 32] [LNIND 1975 SC 32] [LNIND 1975 SC 32], State
of Uttar Pradesh v Raj Narain (1975) 4 SCC 428 [LNIND 1975 SC 32] [LNIND 1975 SC 32] [LNIND 1975 SC 32] (confidentiality
is not a head privilege, it is a consideration to bear in mind; it is not that the contents contain material which it would be
damaging to the national interest to divulge but rather that the documents would be of class which demand protection; For
instance, the class of documents would embrace cabinet papers, foreign office dispatches, papers regarding the security of the
State and high level inter-departmental minutes).
5 AK Kaul v Union of India AIR 1995 SC 1403 [LNIND 1995 SC 533] [LNIND 1995 SC 533] [LNIND 1995 SC 533], AK Kaul v
Union of India (1995) 4 SCC 73 [LNIND 1995 SC 533] [LNIND 1995 SC 533] [LNIND 1995 SC 533], AK Kaul v Union of India
(1995) Lab IC 1778.
6 See note 1 above.

ADMINISTRATIVE LAW/32. STATUTORY CONTROL MECHANISM/(1) OMBUDSMAN/[005.354] Historical
background
[005.354] Historical background The institution of ombudsman, developed in the Scandinavian countries
primarily to redress individual grievances against the administration1. The idea was then adopted by
common law countries. For instance, New Zealand was the first common law country to institute an
ombudsman in 1962 followed by Britain2 and then Australia3.
In all these countries, ombudsman functions primarily to redress individual grievances against the
administration. For instance, in Australia, the ombudsman has jurisdiction to investigate into complaints
against action taken by major government departments and prescribed authorities. The ombudsman's
primary function is to investigate either on a complaint or suo motu, into a matter of administration taken by a
department or a prescribed authority. 'Taking of action' includes a reference to:
(1) the making of a decision or recommendation or the formulation of a proposal; and

(2) failure or refusal to take any action.
In Britain, the ombudsman is charged with the function of investigation into complaints from people against
maladministration4.
The primary reason underlying the establishment of the institution of ombudsman is to provide a forum, in
addition to the courts, to redress the grievances of an individual against the administration. Although over a
period of time, the range and scope of judicial review of administrative action5 has expanded, there still
remain a few areas where judicial review does not reach. For instance, courts refrain from scrutinising the
merits of an administrative decision and play only a marginal role6.
1 The institution of ombudsman was established in Sweden in 1809; Finland followed in 1919, Denmark in 1953 and Norway in
1962.
2 In Britain, ombudsman is officially called as the Parliamentary Commissioner and was established in 1967.
3 In Australia, the system was established in 1967.
4 The term 'maladministration' is defined broadly. The British ombudsman is concerned with injustice in consequence of
maladministration in administrative action that includes failure to act. The term maladministration includes corruption, bias,
unfair discrimination, faulty procedure and harshness.
5 As to judicial review of administrative action see [005.210].

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6 See note 4 above.

ADMINISTRATIVE LAW/32. STATUTORY CONTROL MECHANISM/(1) OMBUDSMAN/[005.355]
Developmental history in India
[005.355] Developmental history in India The Administrative Reforms Commission (1964), in its first report
advocated that an ombudsman be established to redress individual grievances against the administration1.
The Central Government accepted this recommendation and even presented a Bill in Parliament for the
purpose of instituting the ombudsman system. However, the Bill could not be passed. Since then, the Bill to
establish ombudsman has been presented in Parliament several times in vain2.
The institution, however, has undergone a drastic metamorphosis. The focus of the institution has shifted
from redressal of grievances to fighting corruption amongst ministers and members of Parliament. The main
purpose with which the institution evolved in Scandinavian countries3 and which the Administrative Reforms
Commission had advocated, has now been lost4. Inquiries into complaints of maladministration have been
omitted. For instance, the Lokpal Bill 2001 envisages that the Lokpal must inquire into any matter involved in
or arising from or connected with any allegation made in complaints.
'Complaint' means, a complaint alleging that a public functionary has committed any offence punishable
under the Prevention of Corruption Act 19885.
'Public functionary' means, present and ex-ministers in the Union Council of Ministers and Members of either
House of Parliament6.
Several state units have enacted their own laws to establish Lokayuktas. These statues do not follow any
uniform pattern. In some states, Lokayukta, looks both in the cases of corruption as well maladministration,
while in other states, the Lokaukta has been assigned the task of probing into allegations of corruption
against the ministers and civil servants7.
The Administrative Reforms Commission (1964) argued in favour of the system of ombudsman as follows:
'The redressal of citizens' grievances is basis to the functioning of democratic governments and will strengthen the hands of the
government in administering the laws of the land, its policies without fear or favour, affection or ill-will and enable it to go up in
public faith and confidence. An institution for the removal of a prevailing injustice springing from an administrative act is the sine
qua non of popular administration. There prevails a public feeling against prevalence of corruption, widespread inefficiency and
administration's unresponsiveness to popular needs. On the other hand, there is the need to protect the administration, project
its true image and dispel from the public mind false notions and prejudices against the quality and character of the
administration'.
2 Lok Sabha enacted the Lokpal and Lokayukta Bill in 1968. However, the Bill could not become a law. A second attempt to
enact the Bill was made in 1971 but was aborted because of the dissolution of the Lok Sabha. A third attempt was made in
1977 but again the bill could not be enacted. Yet another bill was introduced in 1985 but this bill could not become law. Lokpal
Bill 2001 also could not be passed as the Lok Sabha was dissolved.
3 See [005.354].
4 For example, the Lokpal and Lokayuktas Bill, 1968, extended to both allegations of corruption as well as complaints of
maladministration. However, the complaints part was omitted in later Bills.
5 See the Lokpal Bill 2001.
6 See the Lokpal Bill 2001.
7 Some of the states where these statutes have been enacted are Orissa, Maharashtra, Rajasthan, Bihar, Uttar Pradesh,
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Andhra Pradesh and Karnataka.

ADMINISTRATIVE LAW/32. STATUTORY CONTROL MECHANISM/(2) CENTRAL VIGILANCE
COMMISSION/[005.356] Introduction
[005.356] Introduction The Central Government created the Central Vigilance Commission (CVC) in 1964
through an administrative resolution. The role of the CVC was envisaged to be advisory. He was to ensure
that complaints of corruption or lack of integrity on the part of public servants are given prompt and effective
attention and that the offenders are brought to book without fear of favour1. The CVC continued to function
on an administrative basis, until the Supreme Court directed that CVC be given a statutory status2.
Accordingly, Parliament has enacted the Central Vigilance Act 2003. The Commission has thus, become a
three-member body consisting of a Central Vigilance Commissioner and two Vigilance Commissioners. The
President on the recommendation of a committee consisting of will appoint them:
(1) the Prime Minister;

(2) the Home Minister; and the Leader of Opposition in Lok Sabha3.
The term of office of each of these members is four years or till the age of 65, whichever is earlier. On
ceasing to hold the office, they are ineligible for appointment for any office of profit under any government4.
The main functions of the Central Vigilance Commission are:
(a) to exercise superintendence over the functioning of the Delhi Special Police Establishment in
so far as it relates to the investigation of offences under the Prevention of Corruption Act
19885; (b) inquire into allegations of corruption referred to by the Central Government; and
(c) inquire into complaints of corruption against any official.
The following categories of civil servants fall within the jurisdiction of the Commission: (i) member of All India
Services serving in connection with the affairs of the Union; (ii) Group-A officers of the Central Government;
and (iii) such employees of public sector undertakings as may be notified in the Gazette.
The Central Vigilance Commission submits an annual report to the President and enjoys power to summon
witnesses, documents6.
1 State of Madhya Pradesh v Ram Singh AIR 2000 SC 879 (corruption in a civilised society is a disease, which if not detected
in time is sure to maliganise the polity of country leading to disastrous consequences; the socio-political system exposed to
such a dreaded communicable disease is likely to crumble under its own weight; corruption is opposed to democracy and social
order, being not only anti people, but aimed and targeted against them; unless nipped in the bud at the earliest, it is likely to
cause turbulence in the society).
2 Vineet Narain v Union of India AIR 1998 SC 883 (a writ petition was filed in the Supreme Court in 1993 under the Constitution
of India art 32 complaining inertia on the part of the CBI when accusations were against high dignitaries; court issued several
directions for the purpose of insulating the CBI against corruption under art 32 read with art 141 to ensure proper functioning of
the CVC and CBI so that there is proper investigation in a charge of corruption against the high and the mighty and effective
prosecution thereof in the court).
3 See the Central Vigilance Act 2003.
5 The Delhi Special Police Establishment functions under the Delhi Special Police Establishment Act 1946.

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ADMINISTRATIVE LAW/33. RIGHT TO INFORMATION/[005.357] Open government
[005.357] Open government Open government envisages transparency in government functioning. A

democratic government has to be accountable to the people and the basic postulate of accountability is that
the people have information about the functioning of the government, its programmes and policies1.
1 S P Gupta v President of India AIR 1982 SC 148 (the citizens' right to know the facts about the administration of the country
is one of the pillars of a democratic state; that is why the demand for openness in the government is increasingly growing in
different parts of the world).

ADMINISTRATIVE LAW/33. RIGHT TO INFORMATION/[005.358] Right to information
[005.358] Right to information In India, to some extent, the Constitution itself guarantees right of
information to the people. The Constitution of India confers the right to freedom of speech and expression on
a citizen. The term 'freedom of speech and expression' comprehends the right to know and the right to
receive information regarding matters of public concern1. To cover the government functions in a veil of
secrecy, is not in the interest of the public. The responsibility of officials to explain and to justify their acts is
the chief safeguard against oppression and corruption2.
1 See the Constitution of India art 19(1)(a) (see generally[80]CONSTITUTIONAL LAW). Union of India v Association for
Democratic Reforms JT (2002) 4 SC 501 [LNIND 2002 SC 362] [LNIND 2002 SC 362] [LNIND 2002 SC 362]; Dinesh Trivedi,
MP and others v Union of India (1997) 4 SCC 306 [LNIND 1997 SC 1947] [LNIND 1997 SC 1947] [LNIND 1997 SC 1947] (in
modern constitutional democracies, it is axiomatic that citizens have a right to know about the affairs of the government which,
having been elected by them, seek to formulate sound policies of governance aimed at their welfare); Secretary, Ministry of
Information and Broadcasting, Government of India v Cricket Association of Bengal AIR 1995 SC 1236 [LNIND 1995 SC 231]
[LNIND 1995 SC 231] [LNIND 1995 SC 231](the freedom of speech and expression guaranteed by art 19(1)(a) includes the
right to acquire information and to disseminate the same); Association for Democratic Reforms v Union of India AIR 2001 Del
126 [LNIND 2000 DEL 926] [LNIND 2000 DEL 926] [LNIND 2000 DEL 926].
2 State of Uttar Pradesh v Raj Narain AIR 1975 SC 865 [LNIND 1975 SC 32] [LNIND 1975 SC 32] [LNIND 1975 SC 32].

ADMINISTRATIVE LAW/33. RIGHT TO INFORMATION/[005.359] Freedom of information
[005.359] Freedom of information Parliament has now sought go give a concrete shape, to a limited
extent, to the right of people to seek information from the government by enacting the Freedom of
Information Act 2002.
The object of the Freedom of Information Act 2002 is to provide for freedom to every citizen to secure access
to information that is under the control of public authorities, in order to promote openness, transparency and
accountability in administration1.
The Act operates notwithstanding anything contained in the Official Secrets Act 19232. The Act makes it
mandatory for all public authorities to maintain their records properly and furnish to people, information about
their organization, functions and duties and about the norms set by the public authorities for the discharge of
their functions3.
Every public authority has to appoint public information officers for the purposes of the Act4. A public
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information officer is required to deal with requests for information and render reasonable assistance to any
person seeking information5.
A person seeking information has to make request to the concerned public information officer6. The officer
must provide the information as expeditiously as possible and within thirty days in any case7.
A request for information may be rejected for specific reasons8. Where a request for information is rejected,
the public information officer is required to communicate to the person seeking information:
(1) the reasons for such rejection;

(2) the period within which an appeal against such rejection can be filed; and
(3) the particulars of appellate authority9.
An appeal against the rejection of request for information lies to such authority, as may be prescribed10. A
second appeal lies to the Central Government; state government or the competent authority as the case may
be11.
A court cannot entertain any suit or application in respect of any order made under the Freedom of
Information Act 200212.
The Act does not apply to specified intelligence and security organisations13.
1 See the Freedom of Information Act 2002.
2 See the Freedom of Information Act 2002 s 14.
4 See the Freedom of Information Act 2002 s 5(1).
See the Freedom of Information Act 2002 s 8 and 9.
Under the Freedom of Information Act 2002 s 8 the following information is exempted from disclosure:
(1) information, the disclosure of which would prejudicially affect the sovereignty and integrity of India, security of
the State, strategic scientific or economic interest of India or conduct of international relations;
(2) information, the disclosure of which would prejudicially affect public safety and order, detection and
investigation of an offence or which may lead to an incitement to commit an offence or prejudicially affect fair
trial or adjudication of a pending case;
(3) information, the disclosure of which would prejudicially affect the conduct of Centre-state relations, including
information exchanged in confidence between the Central and state governments or any of their authorities or
agencies;
(4) cabinet papers, including records of deliberations of the Council of Ministers, Secretaries and other officers;
(5) minutes or records of advice including legal advice, opinions or recommendations made by any officer of a
public authority during the decision making process prior to the executive decision or policy formulation;
(6) trade or commercial secrets protected by law or information, the disclosure of which would prejudicially affect
the legitimate economic and commercial interests or the competitive position of a public authority or would
cause unfair gain or loss to any person; and
(7) information, the disclosure of which may result in the breach of privileges of Parliament or the Legislature of a
state or contravention of a lawful order of a court. Under the Freedom of Information Act 2002 s 9, a public
information officer may reject a request for information also where such request:
(a) is too general in nature or is of such a nature that, having regard to the volume of information required
to be retrieved or processed would involve disproportionate diversion of the resources of a public
authority or would adversely interfere with the functioning of such authority.
However, where such request is rejected on the ground that the request is too general, it would be the
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duty of the public information officer to render help as far as possible to the person making request to
reframe his request in such a manner as may facilitate compliance with it;
(b) relates to information that is required by law, rules, regulations or orders to be published at a
particular time and such information is likely to be so published within 30 days of the receipt of such
request; or
(c) relates to information that is contained in published material available to public;
(d) relates to information that would cause unwarranted invasion of the privacy of any person.

ADMINISTRATIVE LAW/33. RIGHT TO INFORMATION/[005.360] Official secrets
[005.360] Official secrets The Official Secrets Act 1923 prima facie goes against the ideology of open
government. The philosophy underlying the statute is that official information is the property of the
government and therefore, it must not be released, unless there is good reason for disclosure. The Official
Secrets Act 1923 deals with the aspects of espionage or spying activity1 and disclosure of other secret
official information2.
Any person would be guilty under the Official Secrets Act 1923 if, having in his possession or control any
secret official code or password or any sketch, plan, model, article, note, document or information3, he:
(1) wilfully communicates the code or password, sketch, plan, model, article, note, document or
information to any person other than a person to whom he is authorised to communicate it or a
Court of Justice or a person to whom it is, in the interests of the State, his duty to communicate
it4; or
(2) uses the information in his possession for the benefit of any foreign power or in any other
manner prejudicial to the safety of the State5; or
(3) retains the sketch, plan, article, note or document in his possession or control when he has no
right to retain it or when it is contrary to his duty to retain it or wilfully fails to comply with all
directions issued by lawful authority with regard to the return or disposal thereof6; or
(4) fails to take reasonable care of or so conducts himself as to endanger the safety of the sketch,
plan, model, article, note, document, secret official code or pass word or information7.
The secret official code or password or any sketch, plan, model, article, note, document or information must:
(a) relate to or is used in a prohibited place; or

(b) relate to anything in a prohibited place; or
(c) must be likely to assist, directly or indirectly, an enemy; or
(d) relate to a matter, the disclosure of which, is likely to affect the sovereignty and integrity of
India, the security of the State or friendly relations with foreign States; or
(e) have been made or obtained in contravention of the Official Secrets Act 1923; or
(f) have been entrusted in confidence to the concerned person by any person holding office under
Government; or
(g) have been obtained by the person by the virtue of his position as a person who holds or has
held office under Government or as a person who holds or has held a contract made on behalf
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of Government or as a person who is or has been employed under a person who holds or has
held such an office or contract8.
If any person voluntarily receives any secret official code or password or any sketch, plan, model, article,
note, document or information knowing or having reasonable ground to believe, at the time when he receives
it, that the code, password, sketch, plan, model, article, note, document or information is communicated in
contravention of the Official Secrets Act 1923, he would be guilty of an offence under the Act9.
If any person, having in his possession or control any sketch, plan, model, article, note, document or
information, which relates to munitions of war, communicates it, directly or indirectly, to any foreign power or
in any other manner prejudicial to the safety or interests of the State, he would be guilty of an offence under
the Act10.
A person guilty of an offence is punishable with imprisonment for a term that may extend to three years or
with fine or with both11.
The expression 'secret' or the words 'official secrets' have not been defined by the statute. However, it
extends only to official secrets and not to secrets of a private nature. In the absence of any definition in the
Official Secrets Act 1923, it is for the government to decide what must be treated as secret and what not.
However, the government may not be the sole judge of the matter as the courts can review the decision of
the government. The practice of the government is to treat an information secret, even though there may be
no danger to national security or public safety or any other public interest, merely because it may embarrass
the government12.
A court cannot take cognisance of any offence, unless a complaint is made by an order of or under authority
from, the appropriate government or some officer empowered by the appropriate government in this behalf13.
1 See the Official Secrets Act 1923 s 3. As to open government see [005.357].
2 See the Official Secrets Act 1923 s 5.
3 See note 8 below.
4 Official Secrets Act 1923 s 5(1)(a).
5 Official Secrets Act 1923 s 5(1)(b).
6 Official Secrets Act 1923 s 5(1)(c).
7 Official Secrets Act 1923 s 5(1)(d).
8 See the Official Secrets Act 1923 s 5(1).
9 The person receiving the information is guilty of the offence as much as the person communicating the information. It applies
not only to government servants but also to all persons who have obtained the secret in contravention of the Act: see the
Official Secrets Act 1923 s 5(2).
10 Official Secrets Act 1923 s 5(3).
11 Official Secrets Act 1923 s 5(4).
12 R K Karanjia v Emperor AIR 1946 Bom 322 (the newspaper Biltz published an article inviting the public to send in official
secrets to the editor for which a lavish payment was promised; though the expression 'official secrets' was nowhere defined, the
purpose and scheme of the Official Secrets Act 1923, especiallyss 3-10, which create offences against the Government for
publication of official secrets, clearly indicate that the Legislature did not have in mind any secret of a private office; that a secret
pertaining to any private office, for instance, a university or the corporation, would not be called an official secret); State v K
Balakrishna AIR 1961 Ker 25 [LNIND 1960 KER 182] [LNIND 1960 KER 182] [LNIND 1960 KER 182](certain parts of the
budget were published in a newspaper before its presentation ; the budget was held to be a secret document of the
government, the reception and publication thereof fell within the mischief of Official Secrets Act ss 5(1)and5(2)(b)); see further
Nandlal More v The State (1965) 1 Cr LJ 392(Pb) (the High Court of Punjab considered the question of the premature leakage
of budget information and it was held to be an offence under the Official Secrets Act 1923; the fact that on a subsequent date
the budget proposals have to be made public would not detract from the secrecy of those proposals till such time as they are
announced in Parliament).
516 113
Page
13 See the Official Secrets Act 1923 s 13(3).

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Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

The above formulation of administrative law has several limbs:

(a) power is conferred on the administration by law; and

This means that:

1 As to an implied limit on powers, see [005.182] and following.

2 As to the principle of natural justice, see [005.054]. and following.

3 As to ombudsman in India, see [005.354] and following.

4 As to select tribunals in India, see [005.143] and following.

5 As to judicial review of administrative action, see [005.210] and following.

6 As to damages against the administration see [005.277].

7 See note 5 above.

8 As to the developing principles of administrative law, [005.002] and following.

Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

4 As to bureaucratic corruption in India, see [005.062].

5 As to discretionary powers, see, [005.182] and following.

6 Wheare, ' Maladministration and Its Remedies'.

Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

2 As to 'discretionary powers' see [005.182] and following.

4 As to 'judicial review' see [005.210] and following.

Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

3 As to the Constitutional provisions see [005.006].

4 As to administrative bodies see [005.143] and following.

Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

7 See [005.210] and following.

8 See [005.210] and following.

9 As to privative clauses under [005.232] note 4.

10 As to public interest litigation see [005.330].

Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

at establishing a sovereign, socialist, secular, democratic, republic in India so as to secure to all

(1) to uphold legislation;

3 As to the Directive Principles, see Jain, 'Indian Constitutional Law'ch 34.

21 As to judicial review see [005.210].

Also see, Jain, 'Indian Constitutional Law'ch 33.

23 See [005.242] and following.

24 See [005.222] and following.

25 See [005.222] and following.

Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

(e) restricting the scope of privative clauses in statutes16;

See also Southern Pacific Co v Jensen 244 US at 211 (1916).

7 For discussion on this Act, see, Wade, 'Administrative Law'(1988)pp 808-820.

9 See [005.277] and [005.316].

10 As to the 'lokpal bill in India' see [005.355].

11 As to the 'tribunal system in India' see [005.143].

13 For a detailed discussion of the Maneka Gandhi case, see [005.054].

14 As to the concept of natural justice, see [005.051] and following.

15 As to 'discretionary powers' see [005.051].

16 As to judicial review [005.210] and following.

17 As to award of damages in case of tortious liability see [005.277].

18 See [005.297] and ESTOPPEL[140.098].

20 As to government contract see [005.307] and following.

21 As to 'open government' see [005.357].

Halsbury's Laws of India (Administrative Law)/Halsbury's Laws of India (Administrative Law)/[005]

1 As to 'delegated legislation' see [005.009] and following.

2 As to adjudicative power see [005.143] and following.

3 As to administrative power, see [005.172] and following.

4 As to the publication of delegated legislation see [005.037].

5 As to the principle of natural justice see [005.054] and following.

7 As to the rule of law see [005.003].

8 As to judicial review see [005.210].

9 As to the concept of mala fides, see, [005.189] and following.