ADMINISTRATIVE

LAW
3 AND 5 YEARS LLB UNDER KARNATAKA STATE LAW
UNIVERSITY

MOST IMPORTANT PREVIOUS YEAR QUESTIONS

ALONG WITH ANSWERS

By
ANIL KUMAR K T
Mob: 9584416446
Karnataka State law university 3rd semester 3 Year LLB.
ANIL KUMAR K T LLB COACH
Administrative Law
Most important questions
1. Explain the reasons for the growth of Administration law?
2. Explain the doctrine of rule of law?
3. Define administrative law?
4. Explain Separation of powers?
5. Define delegated legislation? And state the reasons for its growth?
6. Explain Judicial control of delegated legislation?
7. What is conditional legislation?
8. Explain the different kinds of bias?
9. Explain the Principle of audi alteram partens?
10.What is writ of mandamus? What should petitioner prove for grant of
this act?
11.State the extent of liability of the government in torts?
12.What is Public interest litigation?
13.Write a note on Injunctions?
14.Explain parliamentary Control of public undertakings?
15.Explain the efficacy of inquiry commissions and the impact of report of
an inquiry commission?
16.Write a note on Lokpal and Lokayukta.
17.The central government appointed a commission to inquire in to the
conduct of chief minister of state, Is the action of the central
government valid?
18.Explain the doctrine of separation of powers in India with appropriate
cases.
19.Explain factors responsible for the growth of delegated legislation in
India?
20.Define Quasi-Judicial power? What are the disadvantages of Quasi-
Judicial power?
21.What is Writ Certiorari? State the grounds for the issue of Writ
certiorari?
22.Classification of Government functions as sovereign and sovereign for
the purpose of tortious liability is not free from difficulties Elucidate?
23.What is the meaning of Ombudsman in India? Explain how far Karnataka
Lokayukta helps to redress the citizens grievance against
maladministration and corruption.
24.Explain the procedural safeguards available to a civil servant in case of
his dismissal or removal from service.
25.Write a note on Sub delegation.
26.Discuss judicial control over delegated legislation with appropriated
cases.
27.Discuss the scope of Writ of mandamus for judicial review of
administrative actions.
28.Discuss the various exceptions to the principles of natural justice with
the help of decided cases.
29.What is administration discretion? Elucidate abuse of discretion.
30.Write a note on Classification of administrative action.
31.What is rule of law and discuss its position in India?
32.Discuss the position of Separation of powers in the context of collegium
recommending judges to apex judiciary.
33.Explain the nature and effect of administrative directions with the help
of decided cases.
34.Explain the reasons for growth of delegated legislation and procedure
control over delegated legislation.
35.What is meant by discretionary power? Distinguish discretionary power
from arbitrary power from arbitrary exercise of power in administration.
36.Whether exhaustion of alternative administrative remedies is a must for
judicial review of abuse of administrative power discuss?
37.Explain the government liability for breach of contracts with the help of
decided cases.
38.Write a note on control over public undertakings.
39.Discuss the definitions, nature and scope of administrative law.
40.Explain the concept of rule against bias with decided cases.
41.Explain the scope of the writ of certiorari and prohibition in controlling
administrative actions.
42.Explain the various grounds for exercising judicial review of
administrative discretion in India with decided cases.
43.The vicarious liability of the state for the torts committed its servants is
governed by three principles. Explain with decided cases.
 44.Critically examine the development of pubic corporation in India and the
extent of their liability.
45.Write a note on Right to information act 2005.

BY
ANIL KUMAR K T LLB COACH
1.Explain the reasons for the growth of Administration law?

Introduction

Administrative legislation and system have existed in India since a long time. The
English came to India for trade hence, the primary object of British
administration was to maximise profit. As the British gained control over India
the efficiency of administration became the basic necessity to fulfil its basic
purpose. The executive during this period had superseding powers in the
matters of justice.

Administrative action in India

The Indian Constitution has adopted and adapted itself to the policy of welfare
state. Various provisions of the Constitution such as Article 39 require the state
to direct its policy towards adequate means of livelihood. Article 47 talks about
rising of the level of nutrition and standard of living of citizens of India, while
articles 32 and 226 confer the power to Supreme Court and High Courts
respectively to issue writs. In addition the constitution itself provides for setting
up of administrative agencies. Article 315 talks about Public Service Commission
in India and article 329 talks about Election Commissions.

Reasons for growth of administrative Law

Changed relations of Authorities and Citizens

It can be seen from the present set up of Administration that relation of the
public authorities with the citizens has changed to a huge extent. Citizens earlier
were not directly involved with the administration. There was a chasm between
the Administrative organs and the citizens. Currently in most of the States there
is a democratic process involved with the administration. Citizens now are
closely isolated with the state Administration and considered an integral
part. In view of these changing relations the basic structure of the legal set up
was rearranged, leading to the growth of administrative action.
Origin of welfare state

The concept of welfare state was developed in the

20th century. According to the doctrine the basic objective of the State Adminis
tration is to achieve maximum welfare for the masses. All the policies of the
state should aim at maximising welfare of the people. This lead to increased
functions of the State. Increase in functions of the states created
complexities. Therefore, it was necessary to develop administrative field to
cater to these increased functions.

Shortage of Courts
It’s a well known fact that the Indian judiciary is overburdened with the huge
array of pending cases. It will be almost impossible for the courts to solve the
ever crowded problems of Administration in addition to the already pending
cases. Therefore quasi-judicial and quasi-legislative bodies are given impetus, to
reduce the already existing load on the judiciary.

Technical expertise of Administrative organs

Administrative law deals with the everyday needs of the people and the ground
realities of the country. They range from the simplest clerical functions to the
most technical functions like taxation. This requires technical expertise to
ensure that all the functions are done efficiently and that the citizens don’t have
any grievances. Administrative action being extremely specialised, having dual
nature of legislature and judiciary favours this and helps undertake all
administrative functions smoothly

Amalgamation of both judicial and administrative functions

Administrative organs have been created in accordance with the doctrine of
separation of powers. The executive, legislature and judiciary function
separately even these organs had to coordinate to ensure smooth functioning
of Administrative law. However this led to a ruckus. Therefore Administrative
action had to be evolved.
Mounting pressure on the Parliament and deficiency of time
The horizon of state activities is expanding with the bulk of legislations rapidly
increasing. Therefore, it’s neither pragmatic nor possible for the legislature to
devote enough time to discuss everything to the minutest detail. Therefore, the
legislature provides the bare skeleton of all rules and regulation and empowers
the executive to breathe life into it by filling the requisite details. Also as rightly
observed by the ‘Committee on Ministers’ Powers’ that if the legislature won’t
delegate its law-making power then it won’t be able to pass the mind and quality
that modern public opinion requires.

Flexibility
Parliament cannot foresee all the contingencies while passing an enactment. To
rise up to such emergencies, mechanisms are required. A legislative amendment
is a slow and cumbersome process. However by way of delegated legislation
onto quasi-legislative bodies these situations can be handled expeditiously. This
is also the reason why several statutes have removal of difficulty clauses to
empower administrative action to take charge.

Experiment
Delegation of legislation provides the executive room for experimentation. This
provides for rapid utilisation of experience, talent and implementation of the
changes as and when needed. For instance, in matters of an experiment done
with respect to traffic norms will help the administrative authority better
understand the actual effect of such norms and work to cater to all the interests
of all the stakeholders involved. If the changes made are successfully
implemented, they are satisfactory. In case there are problems, the same can be
cured immediately

Emergency
In times of nation-wide emergency, quick action at the behest of the
government is required to ensure minimum to no damage to public and public
property. The legislature in not equipped with the ability to handle exigencies
since it can’t provide effective action in the least possible time. Administrative
action is the only convenient and indeed the only possible remedy. Thereby in
times of exigencies such as war or famine, the executive is vested with immense
powers to swiftly and efficiently deal with such situations. Post World War II era
necessitated the need for quick remedial actions, leading to the growth of
administrative action.

Complexity of modern administration

The complexity of modern administration and the expansion of the functions
of the state to the economic and social sphere have rendered it is necessary to
resort to new forms of legislation and to give wide powers to various authorities
on suitable occasions

2.Explain the doctrine of rule of law?

Rule of Law – Meaning & Scope

Dicey in his work stated that Rule of Law is fundamental to the English legal
system and gives the following three meanings to the doctrine:

1. Supremacy of Law
a. Rule of law according to Dicey means the absolute supremacy or
predominance of regular law as opposed to the influence of
arbitrary power or wide discretionary power.
b. It means the exclusion of the existence of arbitrariness on part of
the government.
c. This in essence means that no man can be arrested, punished or
be lawfully made to suffer in body or in goods except by the due
process of law and for breach of a law established in the ordinary
legal manner before the ordinary courts of the land.
2. Equality before Law
a. While explaining this aspect of the doctrine, Dicey stated that
there must be equality before the law or equal subjection of all
classes to the ordinary law of the land administered by the
ordinary law courts.
b. Dicey believed that the exemption of civil servants from the
jurisdiction of the ordinary courts of law and providing them with
the special tribunals was the negation of equality.
c. He stated that any encroachments on the jurisdiction of the courts
and any restriction on the subject’s unimpeded access to them are
bound to jeopardise his rights.
3. Judge-made Constitution
a. Dicey observed that in many countries rights such as the right to
personal liberty, freedom from arrest, freedom to hold public
 meetings, etc. are guaranteed by a written Constitution; in
England, it is not so.
b. In England, those rights are the result of judicial decisions in
concrete cases that have actually arisen between the parties.
c. Thus he emphasized the role of the courts of law as guarantors of
liberty and suggested that the rights would be secured more
adequately if they were enforceable in the courts of law than by
mere declaration of those rights in a document.

Rule of Law and Indian Constitution

The Preamble of the Constitution itself prescribes the ideas of Justice, Liberty
and Equality. These concepts are further enunciated in Part III of the
Constitution and are made enforceable. All three branches of the government
are subordinate i.e. the Judiciary, Legislature and the Executive are not only
subordinate to the Constitution but are bound to act according to the
provisions of the Constitution. The doctrine of judicial review is embodied in
the Constitution and the subjects can approach the High Court and the
Supreme Court for the enforcement of fundamental rights. If the Executive or
the government abuses the power vested in it or if the action is mala fide, the
same can be quashed by the ordinary courts of law.

Exceptions to Rule of Law

Some exceptions to the concept of the rule of law are mentioned below.

• ‘Equality of Law’ does not mean that the powers of private citizens are
the same as the powers of public officials. e.g. a police officer has the
power to arrest which the private citizen does not have.
• The rule of law does not prevent certain classes of persons from being
subject to special rules, for example, the armed forces are governed by
military laws.
• Ministers and other executive bodies are given wide discretionary
powers by the statute.
• Certain members of the society are governed by special rules in their
professions like lawyers, doctors and nurses.
Conclusion
The founding fathers of India accomplished what the rest of the world thought
impossible – establish a country that would follow the letter of the law and
implement the Rule of Law. In all matters such as the protection of the rights
of the people, equal treatment before the law, protection against excessive
arbitrariness, the Constitution of India has provided enough mechanisms to
ensure that the Rule of Law is followed. Through its decisions, the Courts have
strived to reinforce these mechanisms and ensure smooth justice delivery to all
citizens. Problems such as outdated legislation and overcrowded courts are but
small hindrances and bodies such as the Law Commission of India work
towards ironing out these problems with the aim of achieving a system where
there are no barriers to the smooth operation of the Rule of Law.
3.Define administrative law?

Definitions of Administrative law

Administrative law is a law related to administration and can be defined as the

law which governs the activities of the administrative agencies of the
government including actions like rulemaking, adjudication, or the
enforcement of a particular agenda.

Many scholars state different definitions of Administrative law in their views:

According to K.C. Devis, Administrative law is a law which is related to powers

and procedures of administrative agencies, including specially the law related
to judicial review of administrative actions.

According to Ivor Jennings, Administrative law is relating to the administration

which helps in the determination of the organization, powers and duties of the
administrative authorities.

According to F.J. Port, Administrative law consists of all legal rules which have
ultimate objects to fulfill the public law, it touches legislature and judiciary too
and also there are rules which govern judicial actions such as issuing writs
brought by or against the administrative person, rules that permit the
administrative body to exercise judicial powers and practical application of the
law.

According to Austin, Administrative law is to determine the ends to and the

modes in which the sovereign powers shall be exercised. It shall be directly or
by the subordinates.
According to Prof. H.W.R. Wade, Administrative law is the law which controls
the powers of the government.

According to Dicey, Administrative law denotes that part of the nation’s legal
system which determines the legal status and liabilities of all states offices
which defines the rights and liabilities of private individuals in their dealing
with their public officials and which specifies the procedure by which these
rights and liabilities are enforced.

According to Indian Law Institute, Administrative law is a law relating to the

power of administration. It also includes the procedure of how to exercise the
powers, limits of those powers, the way in which the powers are kept in those
limits followed by the officials and the remedies available to the public when
their rights have encroached.

According to C.K.Takwani, Administrative law is the branch of constitutional

law which deals with the powers and procedures of the administrative
authorities.

Now we can define administrative law as the law which is a part of the public
law of a nation which deals with the administration, it also includes the
procedure which is going to be followed by the authorities under
administrative law which deals with the procedure which discuss how to
exercise the powers, limitation on the powers, how powers are enforced on
the public and also the remedies for the public when their rights encroached.
Administrative law defines the relationship between the public and the
government and protects from arbitrary actions which are unfair without any
reasonable reason to the public.

4.Explain Separation of powers?

What is ‘Separation of Powers’

In the strictest sense, the doctrine of separation of powers is very rigid.

Background of the concept
 • This concept was first seen in the works of Aristotle, in the 4th century
BCE, wherein he described the three agencies of the government as
General Assembly, Public Officials and Judiciary.
• In the Ancient Roman Republic too, a similar concept was followed.

• In modern times, it was 18th-century French philosopher Montesquieu

who made the doctrine a highly systematic and scientific one, in his book
De l’esprit des lois (The Spirit of Laws).
• His work is based on an understanding of the English system which was
showing a propensity towards a greater distinction between the three
organs of government.
• The idea was developed further by John Locke.

Purpose of the Separation

The purpose of separation of powers is to prevent abuse of power by a single
person or a group of individuals. It will guard the society against the arbitrary,
irrational and tyrannical powers of the state, safeguard freedom for all and
allocate each function to the suitable organs of the state for effective
discharge of their respective duties.
Meaning of Separation of Powers
Separation of powers divides the mechanism of governance into three
branches i.e. Legislature, Executive and the Judiciary. Although different
authors give different definitions, in general, we can frame three features of
this doctrine.

1. Each organ should have different persons in capacity, i.e., a person with
a function in one organ should not be a part of another organ.
2. One organ should not interfere in the functioning of the other organs.
3. One organ should not exercise a function of another organ (they should
stick to their mandate only).

Thus, these broad spheres are determined, but in a complex country like India
there often arises conflict and transgression by one branch over the other.
Significance of the doctrine
Why do we need a separation of powers between the various organs of the
State? Whenever there is a concentration of power in one centre/authority,
there is bound to be greater chances of maladministration, corruption,
nepotism and abuse of power. This principle ensures that autocracy does not
creep into a democratic system. It protects citizens from arbitrary rule. Hence,
the importance of the Separation of Powers doctrine can be summed up as
follows:

1. Keeps away autocracy

2. Safeguards individual liberty
3. Helps create an efficient administration
4. Judiciary’s independence is maintained
5. Prevents the legislature from enacting arbitrary or unconstitutional laws

Constitutional Status of Separation of Power in India

The doctrine of separation of powers is a part of the basic structure of the
Constitution, although not specifically mentioned. The legislature cannot pass
a law violating this principle. The functions of the three organs are specifically
mentioned in the Constitution.
Let us take a look at some of the articles of the Constitution which suggest
separation of powers.
Article 50: This article puts an obligation over the State to separate the
judiciary from the executive. But, since this falls under the Directive Principles
of State Policy, it is not enforceable.
Article 123: The President, being the executive head of the country, is
empowered to exercise legislative powers (Promulgate ordinances) in certain
conditions.
Articles 121 and 211: These provide that the legislatures cannot discuss the
conduct of a judge of the Supreme Court or High Court. They can do so only in
case of impeachment.
Article 361: The President and Governors enjoy immunity from court
proceedings.
There is a system of checks and balances wherein the various organs impose
checks on one another by certain provisions.

• The judiciary has the power of judicial review over the actions of the
executive and the legislature.
• The judiciary has the power to strike down any law passed by the
legislature if it is unconstitutional or arbitrary as per Article 13 (if it
violates Fundamental Rights).
• It can also declare unconstitutional executive actions as void.
• The legislature also reviews the functioning of the executive.
 • Although the judiciary is independent, the judges are appointed by the
executive.
• The legislature can also alter the basis of the judgment while adhering to
the constitutional limitation.
Checks and balances ensure that no one organ becomes all-too powerful. The
Constitution guarantees that the discretionary power bestowed on any one
organ is within the democratic principle.
5.Define delegated legislation? And state the reasons for its growth?

Introduction

The word legislation is combination of two different word legis which means
law and latio means to make. It means making the law or law making process.
The legislation is termed as Supreme law of land. Salmond classification the
delegated legislation in two parts.
1. Supreme legislation
2. Subordinate legislation
Supreme legislation is passed by Supreme authority and subordinate
legislation is passed by subordinate authority and which is under control of
supreme authority In USA the delegated legislation is not in practice
legislation is entrusted with some of its power to executive.

Definitions of Delegated legislation

• According to Salmond
Salmond defines subordinate legislation is that which proceeds from any
authority other than the power and is therefore dependent for its continued
existence and validity on some superior or supreme authority
• According to Sir Cecil Carr
He defines delegated legislation is growing child called upon to relieve the
parent of a strain work and capable of attending to minor matter while parent
manages the main business. The delegated legislation is so lengthy that the
statute would only be in complete but misleading unless it to be read along
with the delegated legislation which amplifies and amends it.

Reasons for growth of delegated legislation

 • Pressure upon parliament
India is a big nation and parliament is busy with number of function dealing
with public affairs. So parliament cannot devote its full time for the better
administration hence delegation of legislation has proved to be utmost
necessary and significant. Thus the legislation formulates general policy and
empowers the executive to fill in details.
• Technically of subject matter
Generally all the Member of Parliament are and honestly speaking some of
them are even illiterate and below matriculation. These politicians are not
acquainted with various technical knowledge like atomic energy, rocket,
technology, drugs, educations etc. In order to have command over such
subject vast knowledge and experience is required. Therefore legislative power
maybe conferred on expert to deal with technical problems.

• Flexibility
The legislative procedures and their amendments are very slow and time
consuming. In many cases very quick decision are required for example: –
regulation, terrorist activities, foreign exchange. Export and import policies,
share market etc. Executives can meet such situation very effectively and
quickly.
• Experiment
The supreme legislation is very rigid in nature. On the contrary delegated
legislation is quite flexible in its nature. Certain circumstances require first
experimental legislation there after getting success for the experimental
legislation on can have standardized legislation. For example: – Traffic
problems, exercise matters, share market etc.

• Speediness
It is one of merit of delegated legislation. As it does not require time , voting
and lengthy procedure to pass it.
• Emergency
During the period of emergency or war the nation requires immediate steps to
prevent the disturbance. Therefore under such circumstances the executive
are empowered to need them.

Advantages of Delegated Legislation:

The above factors that aided in the development of appointed enactment can
be considered as benefits of designated enactment. Different benefits are
 • Power over authoritative specialists: without rules and
guidelines, regulatory specialists may appreciate wide and
uncontrolled watchfulness. It is hence better to control this
carefulness through fitting principles and guidelines.
• Contingent Enactment: A demonstration may give that it will
happen when certain conditions are satisfied. All things being
equal, authoritative specialists are more qualified to check the
satisfaction of such conditions and carry the Demonstration to
impact

Case laws

• Minerva Talkies v. State of Karnataka

In this case the parent act i.e. Karnataka cinema act enables the executive to
make rules to carryout purposes of this act in the same power state govt. ltd.
Cinema shows to 24 per day and which is challenge on ground that it is ultra
virus. It was held by the court that rule was neither ultra virus nor violative of
article 19(1) g of the constitution and the restriction to limit the show up to 4
is in accordance with the rule 41(a) which is according to the purpose of the
act.

• Air India v. Neergesh Meerza

In this case a regulation farmed by Air India stating that services of air
hostesses could be terminated, if she gets pregnant. The court held that this
arbitrary unreasonable and violative.
• Ajay Canu v. Union of India
In this case the rule was made which makes it compulsory to wear a helmet by
persons driving two wheeler. The court held that such rule can’t be arbitrary,
discriminatory or impose unreasonable restriction or the fundamental rights
guaranteed under article 19 of the constitution.

6.Explain Judicial control of delegated legislation?

Judicial control over Delegated legislation

Introduction :

With the growth of the administrative process in the 20th century

the delegated legislation has assumed great importance, today most of the
laws which govern the people come not from the legislature but the chambers
of administrators.
Delegated legislation is bureaucratic legislation, it involves the transfer of
legislative power from the legislature to the executive. The delegation of the
legislative power is permissible only when the legislative policy is adequately
laid down and the delegate is empowered to carry out the policy within the
guidelines laid down by the legislature. Delegated legislation does not fall
beyond the scope of judicial review, the courts often decide the validity of the
delegated legislation on the ground whether it is ultra vires or Intra vires to the
parent Act.

Doctrine of ultravires :

‘Ultra vires is a Latin phrase that means beyond the power or lack of power. An
act is said to be ultra vires if it is done by a person or a body of persons which
is beyond their authority or jurisdiction. The doctrine of ultra vires is the basic
doctrine in the area of administrative law, it provides that an authority has to
exercise only such power as it is conferred on it by the law. An action of the
authority is said to be Intra vires when it falls within the ambit of the powers
conferred on it, but ultra vires when it goes beyond the power conferred on it.
The doctrine has two aspects ;
1. Substantive ultravires ;and
2. Procedural ultravires
I. Substantive ultravires:
Substantive ultra-vires means that the delegated legislation has no substantive
power under the empowering Act to make the rules in question in other words
it means that the delegate cannot make a rule which is not authorized by the
parent statute. Therefore the delegated legislation may be held invalid on the
ground of substantive ultra-vires. The following are the circumstances of
substantive ultra-vires :
1. Constitutionality of the parent Act :
The first requirement for the delegation to be valid is that the parent Act or the
enabling statute by which the legislative power is conferred on the executive
authority must be valid and constitutional. If the parent statute is itself ultra-
vires the constitution then the delegated legislation is bad. In Chintaman Rao
v. State of Madya Pradesh, [1] the parent Act has authorized the deputy
commissioner to prohibit the manufacture of bidis in some areas for a certain
period, it was held that the parent Act was unconstitutional as it violated Art.
19(1) (g) of the constitution and the court also struck down the order passed
by the deputy commissioner.
2. Delegation of essential legislative functions :
It is a well-settled principle that the essential legislative functions must be
carried out by the legislature itself, if the essential legislative functions are
delegated then the same will be struck down .some essential legislative
functions include a repeal of the law, modification of the Act, and imposition of
taxes.
3. Constitutionality of the delegated legislation :
If the parent Act or some of its provisions through which the delegation is
conferred are in contravention of the constitution then the same will be
declared as ultra vires. In CB Muttamma v. Union of India,[2] a provision in
service-rule making a female employee obtain the permission of the
government before solemnizing the marriage and denying the right to get an
appointment on the ground that she was married was held to be
unconstitutional.
4. Unreasonableness and Arbitrary :
If the delegated legislation is unreasonable and arbitrary then it will be
declared invalid. In Air India v. Nargeesh mirza, [3] a regulation framed by air
India providing that services of an air hostess could be terminated if she
becomes pregnant was held arbitrary, unreasonable, and violative of articles
14 and 15 of the constitution. And in the case of the Indian council of legal aid
and advice v. Bar Council of India, [4] the court held that the rule framed by
the bar council of India barring enrolment of a person who is 45 years of age is
violative of articles 14,19 (1)(g) and 21 of the constitution.
5. Malafide :
If the delegated legislation is made by the administrative authority exercising
its power in Malafide or with the ulterior motive then the same will be held
ultra-vires and invalid. In Narendra Kumar v. Union of India, [5] the court
struck down the delegated legislation on the ground that the delegated
legislation has acted Malafide or in bad faith.
6. Exclusion of the judicial review :
Sometimes the clause is inserted in the parent Act ousting the jurisdiction of
the courts, such an ouster clause cannot affect the jurisdiction of the courts
under articles 32,136, and 226 of the constitution as judicial review is now
considered as a part of basic structure doctrine.
7. Retrospective operation :
Sometimes a delegated authority while making subordinate legislation tries to
give retrospective effect to the rules, but this power cannot be used by the
delegated authority unless it expressly confers powers in this regard. The court
in the case of State of Madhya Pradesh v. Tikim Das [6] held that “the
delegated authority cannot use the power of retrospective effect for rules and
regulations unless the concerned statute expressly or by necessary
implications confers power in this behalf”.
II. Procedural ultravires :
The delegated legislation may be challenged on the ground that it is not
following the procedure prescribed by the parent Act, if the delegated
legislation fails to comply with procedural requirements prescribed by the
parent Act or by the general law then it is said to be procedural ultra-vires.
The formalities which the authorities have to follow may include consultation
with the interested bodies, publication of the draft rules and regulations,
hearing of objections, etc. If these requirements are mandatory and the
authorities disregarded these formal requirements then the same may be
invalidated by the court being ultra-vires the Enabling Act.

Conclusion :

With the growth of the administrative law in the 20th century, the delegated
legislation has acquired a very prominent place in the administration, with
ever-widening state activities the parliament cannot exercise all its functions
without delegation, and hence delegation is utmost necessary however the
delegated legislation must not go beyond its authority while excessing its
power and the validity of the delegated legislation will be determined by the
courts whether it is Intra vires or ultra-vires to the parent Act.

7.What is conditional legislation?

Introduction:
Conditional legislation is that thin line where these organs function
independently as well as are interdependent in their exercise. Since,
lawmakers cannot be present everywhere at every time, they delegate their
legislative powers to subordinates where they can implement law to the extent
of power they have been delegated. When conditions are added to such
delegated power in matters of implementation, it becomes a conditional
legislation.

DEFINITION OF CONDITIONAL LEGISLATION

When the law is complete and certain conditions are laid down as to how and
when the law would be applied by the delegate, it is conditional legislation. It
includes no law-making powers but only the power of determining when it
should come into force or when it should be applied.
Supreme Court in Hamdard Dawakhana v. Union of India [1] stated that in
conditional legislation, the delegate’s power is that of determining when a
legislative declared rule of conduct shall become effective.

Conditional Legislation can be found in the occurrences where :- [2]

I. The legislature empowers the executive to expand the activity of a current law
to a specific area or region.

II. To determine and decide the time of application of an Act to a given area.

III. To broaden the span of a Temporary Act, subject to maximum period fixed
by the legislative assembly.

IV. To determine and decide the degree and limits within which the statute or
Act should be employable and operative.

V. Lastly, to introduce a special law if the contemplated situation has arisen in

the opinion of the government.

Conditional Legislation allows better implementation and better reach of laws

as it gives them ample discretion to work and to make decisions regarding
implementation in the best manner possible. Thus, all the modern socio-
economic welfare schemes are a formation of the legislature, but they have
become successful in the country because of their implementation. All the
“when, where and how” aspects of implementation have been ticked
generously by the government because of the discretion that they have been
given by the legislature for the implementation of the Acts framed by the
lawmakers. But this discretion cannot be exercised beyond the power that has
been delegated. If exceeded, then that action is null and void.

8.Explain the different kinds of bias?

TYPES OF BIAS

• Official Bias or Subject-matter bias

Bias may arise because the adjudicator may have a general interest in the
subject matter in dispute because of his association as a member of otherwise
with a private body or with the administration in his official company. An
administrator adjudicator cannot develop the same kind of neutrality and
objectivity towards the issues and institution being presented before him as is
the characteristic of a judge.

According to Griffith and street, “only rarely will this bias invalidate
proceeding”. A mere general interest in the general object to be pursued
would not disqualify a judge from deciding the matter. There must be some
direct connection with the litigation.

According to wade, mistrial or departmental policy cannot be regarded as a

disqualifying bias

Also, in many adjudicatory proceeding before bureaucratic authorities one of

the parties is usually the administration itself. Therefore an authority may have
official bias towards the department to which it has attached in a dispute
between the department and a private party or may have a policy bias i.e. it
may be interested in projecting and pursuing policies of the department.

• Personal Bias A number of circumstances may give rise to personal bias.

Here a judge may be a relative or business associate of a party. He may
have some personal grudge, enmity or grievance or professional rivalry
against him. In view of these factors there is every likelihood that the
judge may be biased towards one party or prejudiced towards the other.

A crude form of personal bias is when the manger of a factory himself conducts
inquiry against the workmen who are alleged to have assaulted him[4]or when
a person sits on a gram panchayat bench to hear appeal against his
conviction[5] or when the adjudicator is a relation of the parties[6] or when a
person sits on the selection board to select person for a post for which he
himself is a candidate even though he may not participate in it’s deliberation
when his name is considered [7]or when the selection committee to select
person for civil posts includes the son-in-law of a selected candidate. [8]

Section 30, of Court management of Country code, talks about personal Bias

• Pecuniary Bias
There is a presumption that any direct financial interest howsoever small
in the matter in dispute disqualifies person from adjudicating. So, a
direct pecuniary interest however small will disqualify a person from
acting as a judge.
• The rule against bias (nemo iudex in causa sua, or “no man a judge in
his own cause”)
 Bias means an operative prejudice, whether conscious or unconscious, in
relation to a party or issue.

Such operative prejudice may be the result of a preconceived opinion or a

predisposition or a predetermination to decide a case in a particular manner,
so much so that it does not leave the mind open.

A person cannot take an objective decision in a case in which he has an

interest, for, as human psychology tells us, very rarely can people take
decisions against their own interest.

The rule against bias is concerned with appearances- actual bias need not be
established.

(i) Personal bias

Personal bias arises from a certain relationship equation between the deciding
authority and the parties, which incline him unfavourably or otherwise on the
side of one of the parties before him.

Two main tests of personal bias are: ‘reasonable suspicion’ test- looks to
outward appearance, and ‘real likelihood’ test- focuses on the court’s own
evaluation of possibilities. In most cases though, they lead to the same result.

Muluki Aain, Chapter on Court Management, Sec. 30- Judge may not hear his
or his relative’s case.

(ii) Pecuniary bias

Judicial approach is unanimous and decisive on the point that any financial
interest, howsoever small it may be, would vitiate administrative action.

A pecuniary interest will disqualify a judge even though it is established that

the judge was not influenced by the interest in reaching a decision.

But the rule sometimes is not applied where the judge has no direct financial
interest in the outcome of the case, though having a pecuniary interest.

(iii) Subject-matter bias

Those cases fall within this category where the deciding officer is directly, or
otherwise, involved in the subject-matter of the case. Here, mere involvement
would not vitiate the administrative action unless there is real likelihood of
bias.

In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the
decision of the Andhra Pradesh government to nationalize road transportation
on the ground that the Secretary of the Transport Department who gave the
hearing was interested in the subject-matter.

In the USA and England, predisposition in favour of a policy in the public

interest is not considered as legal bias vitiating administrative action.

(iv) Departmental Bias

The problem of departmental bias is something that is inherent in the

administrative process, and if it is not effectively checked, it may negate the
very concept of fairness in administrative proceeding.

In Gullapalli Nagewara Rao v. APSRTC (AIR 1959), the Indian SC quashed the
decision of the Andhra Pradesh government to nationalize road transportation.
One of the grounds for challenge was that the Secretary who gave the hearing
was biased, being the person who initiated the scheme and also being the
head of the department whose responsibility it was to execute it.

Thereafter the Act was amended and the function of hearing the objection was
given to the minister concerned. The Gov. decision was again challenged
In Gullapalli Nagewara Rao. However, on this occasion the Supreme Court
rejected the challenge on the ground that the minister was not a part of the
department in the same manner as the Secretary was.

The problem of department bias also arises in a different context- when the
functions of judge and prosecutor are combined in the same department. It is
not uncommon to find that the same department which initiates a matter also
decides it.

(v) Preconceived notion bias

Bias arising out of preconceived notions is a very delicate problem of

administrative law. On the one hand, no judge as a human being is expected to
sit as blank sheet of paper, and on the other hand, preconceived notions would
vitiate a fair trial.
The decision-maker must remain open to persuasion. This may seem especially
unlikely in circumstances where the minister has formulated a policy and then
hears representations against that policy. The courts accept that in such
circumstances an element of bias must be accepted.

9.Explain the Principle of audi alteram partens?

Introduction

“That suffer not myself to be prepossessed with any judgement at all, till the
whole business and both the parties to be heard.” These are the excerpts from
a series of 18 rules to govern the conduct as a judge by Sir. Mathew Hale, the
chief justice of King’s Bench during the tenure 1671-1676. From the second
half of the sixth rule out of eighteen, which states: “ both the parties to be
heard”, we can derive insight on the Latin phrase “Audi alteram partem”,
which means listen to the other side or let the other side be heard as well.

The idea of the maxim is to provide an opportunity for both the parties to
respond against the evidence through which the judgements are made with an
absolute fair hearing. The principle of natural justice is not only a part or a
provision in the constitutional law of the United Kingdom and many other legal
systems but also been stated in arthashastra and in other religious texts like
the Bible and Hadiths.

Audi Alteram Partem

It embodies the concept that no person should be censured from the right to
defend himself and to be heard during the process of judgement. It is a
fundamental aspect of a fair procedure to hear both sides. Other than being
considered as a hallmark of individual right, the right to be heard is also been
considered as a tool to build a fair administrative procedure by courts. The
judgement will be only legally valid if it had provided both the parties a fair
chance to defend themselves.

Main Elements Of Audi Alteram Partem

1. Notice: no decisions can be made during the course of judgement without

providing a notice towards the parties denoting the relevant information like:
 i. Date of hearing
ii. Time of hearing
iii. Place of hearing
iv. Charges against the person
v. Jurisdiction under the case is filed
Both the parties should be aware of the information’s regarding the case. The
order will be held invalid if any of this relevant information is not referred to in
the notice.

Case laws:

Punjab national bank v. all India bank employees federation[3]: In this case, the
notice consisted of the charges against the person, but lacked the information
regarding the penalty imposed. So the court proposed the notice to be
improper. Therefore the order passed is held to be invalid.

Abdul Latif V. Commr[4]: in this case, the notice was considered to be improper
as there wasn’t any information regarding the property specified to be
acquired. Due to irrelevant information, the order passed was held invalid.

2. Hearing: It is the fundamental aspect of Audi alteram partum to hear both

sides before passing any judgements. The authorities are bounded to ensure
that a fair chance is provided to the parties to defend themselves.

Case laws:

Harban Lal. v. commissioner[5]: in this case, it was stated that fair hearing is an
essential ingredient of Audi alteram partum. It is the duty of the authorities to
ensure that the parties are provided with an opportunity to attend a written or
oral hearing.

Union of India v. J.P. mitter[6]: in this case, it ensures a fair chance to make
written opportunities instead of personal hearing or oral.

3. Evidence: It is an important aspect during the course of the judgement. It is

produced before the court during the presence of the parties and the decisions
are made by the member of the judiciary or quasi-judicial authority.
Case laws:

Hira Nath vs. principal[7]: in this case, it was stated that the evidence is not
restricted to formal evidence but also includes any information on previous
conviction on which the court can rely without providing the affected party, a
chance to deny it.

Stafford v. minister of health: in this case, it is held that no evidence should be

produced without the presence of both parties. If any such evidence is
produced, the authority should ensure that the same is made available for
both parties.

4. Cross-Examination: The court, during a fair hearing may not be able to

disclose the person concerned or the material taken against him, but should
give him a chance to refute the evidence. The major question raised before the
adjudicating authority is that the witness should be cross-examined or not.

Case laws:

Kanungo& co. V. collector of customs: in this case, the business property of an

individual was searched and some watches were seized by police under the sea
customs act. The person who provided the information wasn’t allowed for
cross-examination. But here, the principle of natural justice isn’t violated in the
case of goods seized under the sea customs act. Because natural justice
doesn’t allow the concerned person to cross-examine against the witness.

5. Legal representation: In a fair hearing, representation through a lawyer is

not considered to be mandatory. But in some cases, if legal representation is
not allowed then it will amount to infringement of the rule of natural justice.

Case laws:

Krishna Chandra .V. Union of India: in this case, the party was denied legal
representation and amounted to a violation of the law of natural justice as the
party wasn’t able to understand the question of law effectively.
Exemptions In Audi Alteram Partem

The cases where exemptions provided to the rule of natural justice are rare.
But there are few situations where no unfair means can be inferred and the
opportunity of fair hearing can be excluded. Such situations are:

1. Statutory Exclusions: in this case omission of the right of hearing will not
amount to a violation of the rule of natural justice. Because here a statute can
omit the rule of natural justice explicitly or implicitly but such statute might get
challenged under article 14. So, the omission should be justifiable.

Case law:

Charan Lal Sahu vs. union of India[10]: the case is popularly known as the
Bhopal gas tragedy. In this case, the central government was appointed as a
representative of victims of the tragedy regarding the matter of compensation
under the Bhopal gas disaster (processing of claims) Act, 1985. But later, the
constitutional validity of the act was challenged by the victims by stating that
the 22% of share at union carbide company was held by the central
government and it will amount the government to be the joint tortfeasor. Thus
removing the central government to be the representative of the victims.
The Supreme Court held that even though the statement is true, no other
sovereign body can be a representative of the victims. The doctrine of
necessity is applied here.

3. Legislative Functions: the rule of natural justice is not applicable to

legislative actions because these policies under the rule are not
subjected to a particular individual. An action is said to be legislative in
nature, if it is not applicable to just one or two individuals. Similarly, the
principles of natural justice can also be excluded from certain provisions
of constitution as well. The application of natural justice is excluded
from article 22, article 31(A),(B),(C) and 311(2) of the Indian
constitution as a matter of policy. If the court found the application of
legislative functions to be unreasonable, arbitrary and unfair, the court
may scrap such provision under article 14 and article 21 of the Indian
constitution.
10.What is writ of mandamus? What should petitioner prove for grant of this
act?
Introduction:
The Constitution of India under Articles 32 and 226 gives power to the
Supreme Court and High Courts respectively to issue writs in cases of breach of
Fundamental Rights of any citizen by the State. Such writs prevent
arbitrariness and unchecked use of power.

According to the Black’s law dictionary “A Writ issued by a court to compel

performance of a particular act by lower court or governmental officer or
body, to correct a prior action or failure to act.” In other words, it’s a writ of
command that compels someone to perform a statutory duty that he/she is
obligated to do.

The High Court has been conferred power by the Article 226 of the
Constitution for the enforcement of fundamental rights under Part III of the
Constitution. Under Article 226 of the Constitution, writ is issued for correcting
gross errors of jurisdiction, i.e., when a subordinate court is found to have
acted:

• without jurisdiction, by assuming jurisdiction where there exists none, or

• in excess of its jurisdiction – by overstepping or crossing the limits of
jurisdiction, or
• acting in flagrant disregard of law or the rules of procedure or acting in
violation of principles of natural justice where there is no procedure
specified, and thereby occasioning failure of justice.

Instances where mandamus will be issued

The writ of mandamus can be issued for the following:

• Against the State to refund the tax it collected illegally.

• Against a University if they change the regulations after the candidate
has appeared in the exam, to his disadvantage.
• Where the Government neither records nor communicates to the
parties the reasons for not making a reference under Section 12(5) of
the Industrial Disputes Act, 1947, the aggrieved party can seek the legal
recourse of mandamus.
 • When an Income Tax Tribunal passes an order and the Income Tax
Officer refuses to carry out the instructions passed by the Tribunal.
• Where the land acquisition officer erroneously refuses to pay the
interest on the compensation amount.
• Where an order of detention is passed against the petitioner but he is
not under detention.

EXAMPLES WHEN A WRIT PETITION CAN BE FILED WITH PRAYER FOR WRIT
OF MANDAMUS

1. When Development Authority is sitting idle on any file since some time
and not taking action as per law despite empowered by law to decide
the matter.
2. When Development Authority is not sanctioning the map.
3. When government hospital is not treating,
4. When Mandi parishad not allotting shop
5. When there is delay in disposing any valid representation which is to be
decided by the concerned authority, etc.
6. Where gun licence is pending consideration sanction by the DM
7. Where any application/ representation/ proceeding are pending before
any authority, department or person and such authority or person has
statutory obligation to dispose such application/ representation/
proceeding but same is not being disposed.

Case laws:

• Binny Limited v. Sadasivan[5]: The apex Court in this case observed that
“A writ of mandamus or remedy is pre -eminently a public law remedy
and is not generally available against private wrongs. It is used for
enforcement of various rights of the public or to compel the public
statutory authorities to discharge their duties and to act within the
bounds. It may be used to do justice when there is wrongful exercise of
power or a refusal to perform duties.”

11.State the extent of liability of the government in torts?

Tortious Liability of the Administration and Article 300 of the Constitution

Introduction

Tortious liability of the administration is dealt in Article 300 of the Indian

Constitution. An overview of Article 300 provides that first part of the Article
relates to the way in which suits and proceedings by or against Government may
be instituted. It enacts that a State may sue and be sued by the name of the
Union of India a State may sue and be sued by the name of the State.

The Second part provides, inter alia, that the Union of India or a State may sue
or be sued if relation to its affairs in cases on the same line as that of Dominion
of India or a corresponding Indian State as the case may be, might have sued or
been sued of the Constitution had not been enacted. The Third part provides
that it would be competent to the Parliament or the legislature of State to make
appropriate provisions in regard to the topic covered by Article 300(1).

How Article 300 of the India Constitution deals with the Tortious Liability Of
The Administration

Article 300 of India Constitution :

(1) The Government of India may sue or be sued by the name of the Union of
India and the Government of a State may sue or be sued by the name of the
State any may, subject to any provision which may be made by Act of Parliament
or of the Legislature of such State enacted by virtue of powers conferred by this
Constitution, sue or be sued in relation to their respective affairs in the like cases
as the Dominion of India and the corresponding provinces or the corresponding
Indian States might have sued or been sued if this Constitution had not been
enacted.

(2) If at the commencement of this Constitution any legal proceedings are

pending to which the Dominion of India is party, the Union of India shall be
deemed to be substitute for the Dominion in those proceedings.

Any legal proceedings are pending to which a Province or an Indian State is a

party, the corresponding State shall be deemed to be substituted for the
province or the Indian State in those proceedings.

Important Case Laws dealing with the Tortious Liability of the Administration
The first case, which seriously discussed the question of Sovereign Immunity, is
the Pand O Navigation Company V. Secretary of State for India , in this case a
piece of iron funnel carried by some workmen for conducting repairs of
Government steamer hit the plaintiff horse-driven carriage and got injured. The
Plaintiffs sued for damage. The plaintiff filed a suit against the Secretary of State
for India- in council for the negligence of the servants employed by the
Government of India. The Supreme Court delivered a very learned judgment
through the Chief Justice. The Supreme Court at Calcutta, CJ held that “the
Government will be liable for the actions done by its servants while doing non-
sovereign functions but it won’t be liable for injuries caused while pursuing
sovereign functions.

Similarly in Nobin Chunder Dey V. Secretary of State , the Calcutta High Court
gave full effect to the remarks in rejecting the plaintiff’s plea for damage against
wrongful refusal to him of a license to sell certain excisable liquors and drugs
resulting in the closure of his business on the ground that grant or refusal of a
license was a sovereign function lying beyond the reach of the tortuous liability
of the State. Since then, the distinction between the sovereign and non-
sovereign functions of the State has been the basis of a number of judicial
pronouncements.

Other Provisions dealing with the Tortious Liability of the Administration

• Under Article 294 (4) of the constitution, the liability of Union

Government or a state Government may arise ‘out of any contract or
otherwise. The word otherwise suggests that the said liability may arise
in respects of tortuous acts also. Under article 300 (1), the extent of such
liability is fixed. It provides that the liability of the Union of India or State
Government will be same as that of Dominion of India and the Provision
before the commencement of the Constitution.
• The English law with regard to immunity of the Government for tortuous
acts of its servants is partly accepted in India. The High Court observed:
as a general rule this is true, for it is an attribute of sovereignty and
universal law that a state cannot be used in its own courts without its
consent.’ Thus a distinction is sought to be made between ‘sovereign
functions’ and ‘non-sovereign functions’ of the state. The State is not
liable in tort.
• Under section 80 of the Code of Civil Procedure, 1908, no suit can be
instituted against the government until the expiration of two months
after a notice in writing has been given.
 • Under section 82 of the Code of Civil Procedure, 1908, when a decree is
passed against the Union of India or a State, it shall not be executed
unless it remains unsatisfied for a period of three months from the date
of such decree.
• Under article 112 of the Limitation Act, 1963, any suit by or on behalf of
the Central Government or any State Government can be instituted
within the period of 30 years.

12)What is Public interest litigation?

Introduction

▪ The expression ‘Public Interest Litigation’ has been borrowed from

American jurisprudence, where it was designed to provide legal
representation to previously unrepresented groups like the poor,
the racial minorities, unorganised consumers, citizens who were
passionate about the environmental issues, etc.
▪ Public interest Litigation (PIL) means litigation filed in a court of
law, for the protection of “Public Interest”, such as Pollution,
Terrorism, Road safety, Constructional hazards etc. Any matter
where the interest of public at large is affected can be redressed by
filing a Public Interest Litigation in a court of law.
▪ Public interest litigation is not defined in any statute or in any
act. It has been interpreted by judges to consider the intent of
public at large.
▪ Public interest litigation is the power given to the public by courts
through judicial activism. However, the person filing the petition
must prove to the satisfaction of the court that the petition is being
filed for a public interest and not just as a frivolous litigation by a
busy body.
▪ The court can itself take cognizance of the matter and proceed suo
motu or cases can commence on the petition of any public spirited
individual.
▪ Some of the matters which are entertained under PIL are:

o Bonded Labour matters

o Neglected Children
 o Non-payment of minimum wages to workers and
exploitation of casual workers
o Atrocities on women
o Environmental pollution and disturbance of ecological
balance
o Food adulteration
o Maintenance of heritage and culture
Genesis and Evolution of PIL in India: Some Landmark Judgements

▪ The seeds of the concept of public interest litigation were initially

sown in India by Justice Krishna Iyer, in 1976 in Mumbai Kamagar
Sabha vs. Abdul Thai.
▪ The first reported case of PIL was Hussainara Khatoon vs. State of
Bihar (1979) that focused on the inhuman conditions of prisons and
under trial prisoners that led to the release of more than 40,000
under trial prisoners.

o Right to speedy justice emerged as a basic fundamental

right which had been denied to these prisoners. The
same set pattern was adopted in subsequent cases.
▪ A new era of the PIL movement was heralded by Justice P.N.
Bhagawati in the case of S.P. Gupta vs. Union of India.

o In this case it was held that “any member of the public or

social action group acting bonafide” can invoke the Writ
Jurisdiction of the High Courts (under article 226) or the
Supreme Court (under Article 32) seeking redressal
against violation of legal or constitutional rights of
persons who due to social or economic or any other
disability cannot approach the Court.
o By this judgment PIL became a potent weapon for the
enforcement of “public duties” where executive action
or misdeed resulted in public injury. And as a result any
citizen of India or any consumer groups or social action
groups can now approach the apex court of the country
 seeking legal remedies in all cases where the interests of
general public or a section of the public are at stake.
o Justice Bhagwati did a lot to ensure that the concept of
PILs was clearly enunciated. He did not insist on the
observance of procedural technicalities and even treated
ordinary letters from public-minded individuals as writ
petitions.
▪ The Supreme Court in Indian Banks’ Association, Bombay & Ors. vs.
M/s Devkala Consultancy Service and Ors held :- “In an appropriate
case, where the petitioner might have moved a court in her private
interest and for redressal of the personal grievance, the court in
furtherance of Public Interest may treat it a necessity to enquire
into the state of affairs of the subject of litigation in the interest of
justice.” Thus, a private interest case can also be treated as public
interest case.
▪ M.C Mehta vs. Union of India: In a Public Interest Litigation brought
against Ganga water pollution so as to prevent any further pollution
of Ganga water. Supreme Court held that petitioner although not a
riparian owner is entitled to move the court for the enforcement of
statutory provisions, as he is the person interested in protecting the
lives of the people who make use of Ganga water.

13.Write a note on Injunctions?

Introduction:
An injunction is a remedy granted by the court that prohibits the commission of
a wrong threatened or the continuance of a wrongful course of action already
begun. If a party fails to comply with an injunction granted by a court, then the
party could face criminal or civil penalties or contempt of court.

When is injunction invoked?

The Indian legal system doesn’t facilitate an application for an injunction,

unless and until in the existence of a possibility of an irreparable injury.
Irreparable injury is a scenario wherein it is proved that the harm inflicted on
the applicant cannot be amended in any other form.

Governing Law
The law of injunctions is covered explicitly under various Relief Acts and is
implemented in accordance with the Civil Procedure Code. On a precise note,
the laws pertaining to this provision which includes Section 151 and Section 94
of the Code.

Requisites of an Application for Injunction

The applicant can furnish the application for an injunction if:

• The petitioner has a strong prima-facie case, which has the potential to
succeed.
• The balance of the convenience or that of inconvenience is in favour of
the petitioner,
• Non-granting of a temporary or permanent injunction would force the
petitioner to suffer irreparable damage.

Types of Injunction

The following are the different types of the injunction:

• Preliminary injunction
• Preventive Injunction
• Mandatory injunction
• Temporary restraining order
• Permanent injunction

Preliminary Injunction
A preliminary injunction, which is also known as an ad-interim injunction, is
assigned to a plaintiff prior to a trial. preliminary injunction preserves the
subject matter in its existing condition to prevent any dissolution of the
plaintiff’s rights, and thereby render him/her the possibility of immediate
relief.

Preventive Injunctions
A preventive injunction is an adjudication that forces an individual to abstain
from doing an action that is preventive, prohibitive or negative. The injunction
intends to prevent a threatened injury, preserve the status quo, and reserve
the continued commission of an ongoing wrong.
Mandatory Injunction
Considered as the most rigorous of all injunctions, a mandatory injunction
directs the defendant to perform an act. For example, if a court orders the
removal of a building or structure due to misplaced construction, then it fits
the description of a mandatory injunction.

Temporary Restraining Order

A temporary restraining order is just what its name suggests, as the same is
valid until the period of restraining order draws to a closure. The court grants it
to preserve the status quo of the subject of the controversy until the hearing of
an application for a temporary injunction. Through it, it also seeks
to prevent any instance of unnecessary and irreparable injury.

Permanent Injunction
At the time of final judgement issues the permanent injunction for granting a
final relief to the applicant. These injunctions remain constant if the conditions
that produced them are permanent.

Contempt of Court

The provisions of an injunction comply with the respective parties, failing

which the defendant is punishable for Contempt of Court after performing the
necessary trial or hearing. Such a scenario would force the defaulter to remit
the prescribed penal charge and/or face imprisonment. The quantum of
punishment would be decided by considering the type of default.

Prohibitory Injunction

A prohibitory injunction when granted by a court, prohibits the defendant from

doing a wrongful act that would be an infringement of the plaintiff’s legal
rights. For example, prohibitory injunctions restrain a breach of contract or to
protect the disclosure of confidential information.

Mandatory Injunction

A mandatory injunction forbids a defendant from continuing a wrong act that

has already occurred at the time when the injunction is issued. The purpose of
a mandatory injunction is to restore a wrongful state of things to the rightful
order. For example, a mandatory injunction makes the defendant deliver
possession of a property to its rightful owner.

When issuing a mandatory injunction, the Courts would take into consideration,
whether the plaintiff could be adequately compensated or whether the grant of
an injunction was necessary to do justice.

Interlocutory or Interim Injunction

An interlocutory injunction is a type of temporary injunction, which is

operational during the pendency of the case before the court. Hence, an
interlocutory injunction can compel or prevent a party from doing certain acts,
pending the final determination of the case. The primary purpose of using an
interlocutory injunction is to preserve matters in the status quo.

The following points are considered by the Courts while refusing or granting an
interim injunction whether the:

• petitioner has made out a prima facie case;

• balance of convenience is in the petitioner’s favour;
• petitioner would suffer irreparable injury.

14.Explain parliamentary Control of public undertakings?

The Committee on Public Undertakings examines the reports and accounts of
Public Sector Undertakings (PSU.) The functions of this committee are
mentioned in the fourth schedule of the Rules of Procedure and Conduct of
Business in Lok Sabha.

What is Committee on Public Undertakings?

Introduced in 1964, Committee on Public Undertakings is a type of Financial

Committee which came into existence on the recommendations of the Krishna
Menon Committee. It is one of the Parliamentary Committees (Standing
Committee) in the Indian Constitution which was introduced to expand the
parliamentary control over the PSUs.
The table briefly mentions everything about the Committee on Public
Undertakings, details of which will be given after it:
 Committee on Public Undertakings

Year of 1964 (On the recommendation of Krishna Menon Committee)

Establishment

Members 22

Election of By Parliament every year with proportional representation

Members through a single transferable vote

Term of Office One Year

Chairman Speaker appoints him/her from amongst the members

Note: Member from Rajya Sabha is not chosen as Chairman

Function To examine the reports and accounts of the Public Sector

Undertakings

Who are the members of the Committee on Public Undertakings?

This financial committee has 22 members. All the members are taken from the
Indian Parliament. Out of 22 members, 15 are elected from Lok Sabha (Lower
House) and 7 members are elected from Rajya Sabha (Upper House.)
(The difference between Lok Sabha & Rajya Sabha can be read in the linked
article.) When the committee was introduced in 1964, it has 15 members (10
from Lok Sabha and 5 from Rajya Sabha.)
Mode of the election of Committee on Public Undertakings’ members:
The members of the committee are elected annually by the Parliament from
amongst its members using the principle of Proportional Representation (PR)
by means of Single Transferable Vote (STV.) This election method gives equal
representation to all the members of the Parliament.
Term of the office of members of the Committee on Public Undertakings:
Every member elected by the Parliament from both Lok Sabha and Rajya Sabha
are a part of the committee for a year. After a year, a new election takes place
and members are changed or re-elected.
Note: Similar to the Public Accounts Committee, a minister cannot be elected
as a member of the Committee on Public Undertakings.
Chairman of the Committee Public Undertakings:
Lok Sabha speaker has the authority to appoint the chairman of the
committee. The Chairman of the Committee on Public Undertakings is
appointed from amongst the members of Lok Sabha. Hence, there is no
representation of Rajya Sabha members as a chairman of the committee.
15.Explain the efficacy of inquiry commissions and the impact of report of an
inquiry commission?
Introduction:
People are increasingly suffering as a result of decisions made by government
agencies in the quest for the public good. Political parties and other sections of
society are increasingly calling for the formation of an investigation committee.
As a result, such an investigation is necessary to obtain the opinions of diverse
groups of individuals who may suffer as a direct result of this exercise of
administrative power by the involved authority
An extensive investigation and inquiry power are needed by the administration
to properly carry out its many duties. Information is collected to decide on a
future course of action to deal with a particular circumstance or discover
solutions to a given problem.

It also collects data or information about a certain issue that is of public

interest. Act’s primary objectives include regulation, law enforcement, dispute
adjudication, supervision, licensing, information gathering, and taking action
against the accused.
Investigations and inquiries are crucial means of obtaining information, thus.
Such information is needed by the government as a kind of feedback while
formulating policies. In addition, it is a valuable source of information for the
public. Commissioners of Inquiry Act, 1952, authorises the federal and state
governments to form inquiry commissions to undertake enquiries into certain
public issues. This is a central law passed under Schedule VII, List I and III of the
Constitution.

The government used to order the public either by executive order or notice
under the Public Servants Inquiries Act, 1850 or by ad hoc committees before
the ratification of the Commission of Inquiry Act, 1952. (committees made for
a special purpose and after the purpose is fulfilled it gets dissolved). The Act is
not limited to any one type of issue, but rather covers a wide range of issues.
The first inquiry in independent India, the Chagla Commission was set up by
the Indian government to determine whether the money of India’s Life
Insurance Corporation had been appropriately used. According to experts, the
government-approved method is cumbersome and inefficient. To fulfil the
ever-increasing need for an independent and unbiased public inquiry.
A government can appoint an investigation committee if it deems it essential,
or if a resolution is voted by the Lok Sabha or a state legislative assembly
(Section 3). The commission’s appointment will be announced in the
government gazette. The administration must form a commission of inquiry
when a resolution of the house of people or a state legislative assembly calls
for it.

Commission of Enquiry Act, 1952

With the passage of this act, the creation of commissions to investigate

problems affecting the public is made possible. To the extent that it also
relates to Jammu & Kashmir, this Act is applicable throughout India. It only
becomes effective when the central government, by a public notice in an
official journal, appoints a commission.
According to Section 2 of the Commission of Investigation Act, “appropriate
Government” implies only the Central and State governments have the power
to appoint a commission to undertake an inquiry into any of the items that are
specified in List I, List II, or List III of the Constitution’s Seventh Schedule.
Moreover, “commission” refers to a commission of inquiry formed under
Section 3 of the act, and “prescribed” implies that regulations issued under this
act should only be referred to in the act itself.

According to section 3, the commission was to be appointed. Section 4 outlines

the commission’s responsibilities. The commission is given new authority in
section 5 of the act. It also says that the commission cannot require any
individual to divulge a secret manufacturing method, save in certain situations,
under section 6. When a commission is told that it is no longer needed, it can
be disbanded under section 7. Section 8 outlines the steps that the commission
must take to carry out its duties and functions.
A person who acts in good faith is protected from legal action under Section 9.
A public servant must be appointed as a member of the commission, according
to section 10. Other inquiring authorities are also covered by this act,
according to section 11, but only in extreme circumstances or whenever the
necessity arises. As a last note on this act’s section 12, which grants the
commission authority to promulgate regulations to carry out the goals of this
act.

More than five amendments have been made to this Act in the last 68 years:
The Commissions of Inquiry (Amendment) Act, 1971, The Delegated Legislation
Provisions (Amendment) Act, 1985, The Commission of Inquiry (Amendment)
Act, 1986, The Commissions of Inquiry (Amendment) Act, 1988, The
Commissions of Inquiry (Amendment) Act, 1990

Status and relevance

As a result of its non-judicial nature, a commission of inquiry is not a tribunal.

They can investigate, create laws, take notes on evidence and make
recommendations but they have no superior authority that can implement
their decisions correctly. This is neither a judicial or administrative
investigation, but rather an exercise in what is known as an administrative
function. Immunities are not accessible to the members of the commission,
but they are available to an officer who is responsible for a court of law.

V. Jagannath Rao and Others versus State of Orissa and Others) was an
important case that made it apparent that a court of inquiry may be
established even though certain cases were pending in the courts. Through its
good faith actions, the commission of inquiry, in this case, did not interfere
with the court’s authority by performing its responsibilities under the
Commission of Inquiry Act. No one may be punished by the committee of
inquiry for disliking his proceedings or for violating its directives.

Conclusion

Even after five amendments to the Commission of Inquiries Act of 1958, the
gaps have not been closed since we still do not have a permanent body in
place. There should be a permanent body or organisation to integrate all the
activities of the commissions to avoid the proliferation of commissions and to
have a uniform structure or procedure, as there is in England, where the
inquiries act of 1958 created a permanent body called Councils of Tribunals.

16.Write a note on Lokpal and Lokayukta.

 • There is a lengthy history between the Lokpal and the Lokayukta. The
Lokpal and Lokayukta principles are not unique to India.
• In 1809, Sweden founded the Ombudsman institution, and the concept
of an ombudsman was developed. Following World War II, the
institution of ombudsman expanded and evolved considerably.

Composition & Eligibility of Lokpal and Lokayukta:

The Lokpal panel must have a chairperson and a maximum of eight members,
according to the Act. Four of them must be judicial members.

Selection Committee

• The members are appointed by the president on the recommendation

of a Selection Committee comprises of:
o The Prime Minister is the Chairperson;
o Speaker of Lok Sabha,
o Leader of Opposition in Lok Sabha,
o Chief Justice of India or a Judge nominated by him/her and One
eminent jurist.
• For selecting the chairperson and the members, the selection
committee constitutes a search panel of at least eight persons.

For Lokayukta

• The Chief Minister selects a person as the Lokayukta after consultation

with the High Court Chief Justice, the Speaker of the Legislative
Assembly, the Chairman of the Legislative Council, Leader of
Opposition in both the Houses of State Legislature.
• The appointment is then made by the Governor.
• Once appointed, Lokpal and Lokayukta cannot be dismissed nor
transferred by the government, and can only be removed by passing an
impeachment motion.

Function and Jurisdiction of Lokpal and Lokayukta

• Anyone who is or has been Prime Minister, a Minister in the Union

government, or a Member of Parliament, as well as officers of the Union
Government in Groups A, B, C, and D, are eligible to be investigated by
the Lokpal.
 • If the allegations against the Prime Minister are related to foreign
relations, external and internal security, public order, atomic energy, or
space, the Lokpal cannot investigate.
• Also, complaints against the Prime Minister will not be investigated until
the complete Lokpal bench recommends launching an investigation and
at least two-thirds of the members accept it.
• If an investigation into the Prime Minister is underway, it should be
conducted in secret. If the Lokpal decides that the complaint should be
rejected, the investigation's documents are not to be published or made
available to the public.
• Lokpal also applied to the chairpersons, members, executives, and
directors of any board, corporation, society, trust, or autonomous
organisation created by an Act of Parliament and supported entirely or
partially by the Union or State governments. It also applies to any
society, trust, or body that accepts a foreign gift of more than ten lakh
rupees.
• Within 60 days, the Inquiry Wing or any other body must finish its
preliminary investigation and submit a report to the Lokpal. Before
presenting its report, it must obtain feedback from both the public
servant and "the competent authority." Each kind of public servant will
have a "competent authority" as defined by the Act.
• The Lokpal has the authority to recommend the transfer or suspension
of a public official who has been accused of corruption.
• Lokpal has the authority to issue orders prohibiting the destruction of
records during the preliminary investigation.
• The Lokpal has the authority of search and seizure, as well as powers
under the Civil Procedure Code to undertake preliminary inquiries and
investigations, as well as the power to attach assets and take other
measures to combat corruption.
• For cases submitted to them by the Lokpal, the Lokpal will have the
authority to supervise and instruct any central investigating agency,
including the CBI.

17.The central government appointed a commission to inquire in to the

conduct of chief minister of state, Is the action of the central government
valid?

This Act is made for the appointment of commissions to inquire into matters
which are related or concerned or affects the public at large. This Act applies to
the whole of India provided it shall also apply to the state of Jammu and
Kashmir. When the central government may, by notification in the official
gazette appoints a commission from that day only the act shall come into
force. Under Section 2 of the commission of inquiry Act, it has provided certain
definitions for reference which are further used in this act like “appropriate
Government” which means only Central and State governments has the right
to appoint a commission to make an inquiry related to any of the entries which
are mentioned in List I or List II or List III in the Seventh Schedule of the
Constitution. It has also explained the meaning of commission which means a
commission of inquiry appointed under Section 3, “prescribed” means that
rules which are made under this act should only be referred. Appointment of
the commission was there in section 3 of the Act, Section 4 defines the powers
of the commission. Section 5 has additional powers which are been given to
the commission. Section 6 deals with the provisions of the statements made by
the person to the commission in this section it also mentions that commission
cannot force any person to disclose the secret process of manufacture of
goods except in some cases. Section 7 says that commission can cease to exist
whenever it is notified. Section 8 deals with the procedure that needs to be
followed by the commission. Section 9 deals with the protection of action that
should be taken against the person who acted in a good faith. Section 10 says
that any member of the commission appointed should necessarily be a public
servant. Section 11 says that this act is applicable to other inquiring authorities
also in exceptional cases or wherever the need is found. Lastly, Section 12 of
the Act which gives power to the commission to make rules to carry out the
purposes of this Act.

A commission of inquiry is not a judicature. The commission has the power to

investigate, make laws, can record the evidence and can make
recommendations but without having any superior authority who can properly
enforce them. Even the reports or the inquiry cannot be looked at as a judicial
or administrative inquiry rather it is being exercised as a so-called
administrative function. The members of the commission don’t have
immunities to claim for otherwise, immunities are available to an officer
governing over a court of law. There was a famous case of Biju Patnaik (P. V.
Jagannath Rao & Ors vs State Of Orissa & Ors.) which made us clear the fact
that a court of inquiry can be set up even if certain matters were pending in
the courts. The commission of inquiry in the case had nothing to impede or
interfere with the powers of the court by acting in good faith and ejecting
statutory functions under the Commission of Inquiry Act. The commission of
inquiry is also not competent enough to penalize anyone for the distaste of his
proceedings or for infringing its orders. The commissions are for an interim
time period and also their sittings are not even on a regular basis.
18.Explain the doctrine of separation of powers in India with appropriate
cases.

Refer Q.No. 04
19.Explain factors responsible for the growth of delegated legislation in
India?

Refer Q.No. 05
20.Define Quasi-Judicial power? What are the disadvantages of Quasi-Judicial
power?
Introduction:
A quasi-judicial body is an entity such as an arbitrator or tribunal board which
has powers and procedures resembling those of a court of law or judge. It is
obliged to objectively determine facts and draw conclusions from them so as
to provide the basis of an official action. Their powers are usually limited to a
very specific area of expertise and authority, such as land use and zoning,
financial markets, public standards etc. National Human Rights Commission,
National Commission for Women, National Commission for Minorities, etc. are
examples of quasi-judicial bodies.
Advantages of quasi judicial bodies:
1. Lessen the burden of court: These bodies reduce the burden of judiciary
which is having huge number of pending cases.
2. Expertise: Generally members of the bodies have necessary expertise
and specialisation in the particular area which help immensely in cases.
Thus expertise is a major advantage.
3. Accessible:These are easily accessible to common people and moreover
these involve very low cost as compared to judiciary.
4. Flexibility: Judiciary generally refer to its old judgements but quasi
bodies have flexibility to operate.They have flexible approach in dealing
with the cases hence are approached frequently by the people.
5. Suo moto Power: Some of these bodies are having Suo moto power that
is they can enquire on their own on proceedings. For example National
Human rights commission can initiate proceedings on their cases based
on reports from media or their knowing of human rights violations.
6. Autonomy of Functioning: They are fully independent in their
functioning outside the purview of executive. For example NHRC can ask
state governments for information related to any incident in lieu of
Human rights violation happened in state
Disadvantages of quasi judicial bodies:
1. Lack of independence: Many organisation lack independence like
judiciary thus affected from interference from executive.
2. Toothless tiger(No Power to punish): Most of these bodies are
recommendatory in nature, like NHRC and CIC. They can’t even award
compensation or relief to the victims directly, but can only recommend.
These bodies also lack enforcement mechanism & compliance to rules.
3. Lack of manpower: Many Quasi Judicial bodies are under-staffed so
proper and quick investigation is not being done.
4. Add to cost and delays: A person can again appeal in the court against
the decision of the Quasi Judicial body. This fades away the advantage of
cost and time provided by the Quasi Judicial body.
5. Poor efficiency: People if not satisfied with the decisions of the body
always move to courts and hence low administrative efficiency and poor
functioning of quasi judicial bodies further increase the burden on
courts.
6. Partial justice:Many members of these bodies are ex-bureaucrats
without any training of law, this hampers the proper way of justice. Also,
there is always a possibility of executive interference in their functioning
which may result into partial decisions sometimes.
7. Multiplicity: Now a days multiplicity of bodies and mushrooming of
tribunals have made the judicial functioning complex.
Therefore, as a whole, quasi-judicial body is a good concept as it reduces the
burden on Judiciary but there are some loopholes there in this system also.
Govt should choose individual with both technical and legal knowledge and
providing them with power to take decision will be a booster to this organ of
Government.

21.What is Writ Certiorari? State the grounds for the issue of Writ certiorari?

Certiorari

Basically it means “to be certified”. It can be issued by the Supreme Court or

the High Court to quash an order already passed by a lower court. It could also
be used by the Supreme Court to transfer a particular matter to it or some
other superior judicial authority for consideration.
For the issuance of the writ of certiorari, the following conditions must be
fulfilled:

1. The existence of an officer or a tribunal having the judicial authority

as per the law to decide on the cases affecting the rights of people.
2. Such an officer or the tribunal must have acted-

1. in excess of judicial power, or

2. without requisite jurisdiction, or
3. in violation of the principles of natural justice.

3. The honourable Supreme Court has clarified that this writ cannot be
issued against purely administrative actions. This implies that it can
be invoked only in those situations where it is the concerned
authority’s duty to act judiciously, after hearing both the parties and
without any extraneous considerations. However, in the subsequent
decisions, this view has been rejected. So even if the authority is not
required to hear both sides before coming to a decision, the
principles of natural justice must be obeyed. Thus, the writ of
certiorari can be issued even in the administrative cases.
4. A body is said to have acted beyond its jurisdiction in the following
cases:

1. Where the court considering the matter has not been constituted
properly as per the law, like the requirements of members, etc.
2. Where the subject matter of inquiry lies beyond the scope of the
body’s powers as per the law.
3. When the jurisdiction has been based on a wrong assumption of
facts.
4. When there is a failure of justice due to violation of principles of
natural justice or presence of elements like fraud, collusion, or
corruption.
5. Even though the body has acted well within the limits of its
jurisdiction, a decision can be quashed if there is a blatant error prima
facie. The error here means an error of law.

Syed Yakoob v. K.S. Radhakrishnan & Ors. (1964)

Facts

The State Transport Authority had called for applications for the grant of two-
stage carriage permits via a notification under the Motor Vehicles Act, 1939.
After receiving a number of applications, the first permit was granted to one of
the applicants while fresh applications were called for the second one.
Following this, the appellant appealed to the State Transport Appellate
Tribunal. The Tribunal in its decision confirmed the first permit and in the
second it allowed the appellant’s appeal and held that it should be given to
him. The respondent then moved to the High Court with a writ of certiorari. It
contended that the Tribunal had overlooked several material considerations.
When the previous order was affirmed, the appellant then moved the Supreme
Court under a special leave petition.

Issue

Did the High Court exceed its jurisdiction by issuing the writ of certiorari?

Held

It was held that the High Court did exceed its jurisdiction by issuing the writ of
certiorari in the present case. It was observed that this writ is issued to correct
instances where a court has exceeded its jurisdiction. Under the powers
granted by the writ, the court cannot act as a court of appeal or check an error
of fact. It can be employed in cases where there is an error of law, or when it
can be shown that there has been a violation of the principles of natural
justice. But not on the basis of an error of fact solely. However, whether there
has been such an error or not is a matter of the court’s discretion.

22.Classification of Government functions as sovereign and sovereign for the

purpose of tortious liability is not free from difficulties Elucidate?
Introduction:
Sovereign immunity is the reasoning given for wrongs committed by the
government or its representatives. Apparently, these are based on public
policy grounds. Consequently, even if all the elements of an actionable claim
are present, it is possible to prevent liability by giving this rationale. The
doctrine of sovereign immunity is centred on the principle of Common Law
derived from British Jurisprudence whereby the King does no wrong and that
he cannot be accused of personal negligence or misconduct, and as such
cannot be held liable for his servants’ negligence or misconduct. Another part
of this theory is that a State cannot be prosecuted in its own courts and this is
considered as an element of sovereignty.

This theory changed in Indian courts from the middle of the nineteenth
century until recently. When a legitimate claim for damages is brought before
the courts and is rejected by an outdated law, that obviously has no validity,
indignation and requests for clarification are bound to occur. The Indian courts
kept shortening the scope of sovereign functions in order to not let legitimate
claims be defeated so that the victims could obtain damages. India’s Law
Commission, too, suggested abolition of this outdated doctrine in its first
report. However the draft bill for the abolition of this doctrine was never
passed for numerous reasons, and therefore it was left on the judge to
determine on the integration of this doctrine in accordance with the Indian
constitution.

Sovereign and non-sovereign functions of the state

Sovereign functions of the state can be defined as those functions where the
state is not answerable before the court of law for their performance. These
functions are mainly concerned about the defence of the country,
maintenance of the armed forces of the country, and maintenance of peace in
the territory. These functions can only be performed by the state for external
sovereignty and that is why they are not amenable to the jurisdiction of
ordinary Civil Courts and are primarily inalienable functions. But apart from
this, there are various sovereign functions of the state which are not primarily
inalienable which include taxation, police functions comprising maintenance of
law and order, legislative functions, administration of law and policies, and
grant of pardon.

While non-sovereign functions are those functions that are amenable to the
jurisdiction of an ordinary civil court and if the state does any tortious act or
breach of contract, it will be liable for the wrong done. But today, it has
become very difficult to differentiate between the Sovereign and non-
sovereign functions of the state. According to the case of Peninsular and
Oriental Steam Navigation Co. v. Secretary of State for India, the court for the
first time dealt with the difference between Sovereign and non-sovereign
functions. It stated that the Secretary of the State will not be liable for its
sovereign functions and would be liable for only the commercial functions. This
judgment helped the court to understand and interpret the functions of the
state when the question of liability arose. But there was no established
protocol or norm to decide which function is sovereign and which is non-
sovereign.

Important judgements differentiating between sovereign and non-sovereign

functions of the state

Following are the judgments which are given by the courts to understand the
functions carried out by the state and how these can be used to differentiate
between the sovereign and non-sovereign functions of the state:

Performance of statutory duty

There is a particular measurement based on which the court can decide

whether any function comes under the sovereign function or not. In the case
of Shivbhajan Durga Prasad v. Secretary of State, in which a chief constable
was arrested and prosecuted. Later he was acquitted. But the petitioner sued
the secretary of the state stating that he was liable for the wrong done by a
constable. The court held that the secretary was not liable for the acts of the
constable.

Maintenance of public path

The State maintains public routes for public welfare and it does not involve any
commercial object. For the laying of public paths and their maintenance is a
part of the sovereign functions. The Calcutta High Court, in the case
of McInerny v. Secretary of State, held that in maintaining a public street, the
State did not carry out any commercial operations and thus, was not liable for
any damage suffered by the plaintiff by making contact with a public road post
built by the Government.

Maintenance of the military road

This is also one of the important sovereign functions of the government. The
Maintenance of the military road is carried out by the government for the
purpose of defence. In the case of Secretary of State v. Cockcraft, the plaintiff
was injured due to the negligent act of the servant. The servant left a heap of
gravel on a military road on which no one was walking. The Court held that the
government will not be liable for such acts as maintenance of the Military road
is a sovereign function.

Commandeering goods during the war

In the famous case of Kessoram Poddar & Co. v. Secretary, Commandeering

the goods during the war was said to be a sovereign function. According to the
facts of the case, a company sued the secretary of the state to recover
damages since due to defendant’s failure to take delivery and pay for certain
goods bought by the defendant, the company suffered a huge loss. The Court
held that since this order of goods and delivery comes under the
Commandeering of goods which is a sovereign function, such claim is
dismissed.

Administration of justice

Administration of justice, which is one of the State’s functions in the exercise

of sovereign functions, is to recognize and order the trial of such persons in
accordance with the law. If the people were found guilty while discharging the
administration of justice, the framework of judicial duties cannot be properly
executed. This is applicable to the person whose actions as a Judicial Officer
might be considered to have been in his judicial capacity. An agent of
government shall have both judicial and executive powers. Only if he
discharges judicial actions in the course of administration of justice would he
be spared from liability. Even if he has committed the crime of false
imprisonment when functioning in his executive capacity, he cannot assert
sovereign immunity.

23.What is the meaning of Ombudsman in India? Explain how far Karnataka

Lokayukta helps to redress the citizens grievance against maladministration
and corruption.
Introduction:
Ombudsman means a delegate, agent, officer or commissioner. Gender defines
ombudsman as “an officer of parliament, having as his primary function, the
duty of acting as an agent for parliament, for the purpose of safeguarding the
citizen against abuse or misuse of administrative power by the executive “.
Administrative law provides for control over the administration by an outside
agency, strong enough to prevent injustice to the individual, at the same time
leaving the administration adequate freedom to enable it to carry on effective
government. In every progressive system of administration, there is need of a
mechanism for handling grievances against administrative fault Ombudsman is
one of such machinery.

Origin of Ombudsman -

Ombudsman first introduced in Sweden by King Charles XII on 18th

century. It is also practiced by Finland in 1919, Denmark in 1953, Norway in
1963, New Zealand in 1962, US 1960 and UK 1967.

Meaning of Ombudsman

Ombudsman is an appointed official whose duty is to investigate

complaints, generally on behalf of individuals such as consumers or taxpayers,
against Institutions such as companies and government departments.

Ombudsman means the “grievance man” or a “commissioner of

administration “.

Garner -

According to Garner, he is an officer of parliament having as his primary

function, the duty of acting as an agent for the parliament for the purpose of
safeguarding the citizen against abuse or misuse of administrative power by
the executive.
Characteristics of ombudsman

Independence - It is a body that assists with fair and expeditious resolution of

complaints in an impartial confidential and independent manner.

Impartiality and fairness - It works impartially

Credibility - It maintains its Credibility

Confidentiality -

Prof S.K. Agrawal

According to Professor SK Agrawal, the term ombudsman refers only

to institute, which have three basic and unique characteristic which are as
follows -

i) Ombudsman refers only is an independent and non-partisan officer of the

legislature who supervise the administration.

ii) He deals with specific complaints from the public against administrative
injustice and maladministration.

iii) He has the power to investigate, criticize and report back to the legislature,
but not to reserve administrative action.

Importance/need of Ombudsman -

a) Powers and Duties of Ombudsman -

A) Ombudsman is a watchdog of the administration or the protector of

the little man ombudsman inquires and investigates all complaints made by
the citizen against the abuse of discretionary power,mal administration
inefficiency and take appropriate actions . for that purpose very wide power
has been given to him . he has access to departmental files. the complainant is
not required to lead any evidence before the ombudsman to prove his case he
is empowered to grant relief to the aggrieved person . his function is to satisfy
himself whether the complaint is justified or unjustified .he can act even suo-
moto .these power are not limited like the powers of civil court. he is
responsible and responsive to people
The following is the power of a Lokayukta:
 • The Lokayukta assists individuals with carrying corruption to the front
mainly amongst the politicians and officers in the government service.
A point to note is that Lokayukta conducts raids but does not have
any binding powers to punish anyone but only suggests punishment
to the administration. The recommendations given by the Lokayukta
to the government are reduction in rank, compulsory retirement,
removal from office, stoppage of annual increments, and censure. It is
up to the state to either accept the suggestions or modify them. The
public servant can challenge the decision in the state high courts or
specialized tribunals.

Functions

The following are the functions of a Lokayukta:

(1) Investigating “grievances” of the citizens caused by maladministration.

(2) Inquiry into allegations of abuse of office, corruption, or lack of integrity

against public servants. Such additional function is related to the remedy of
grievances and elimination of corruption as may be defined by the Governor,
by notification.

(3) Keep a check on the investigation of anti-corruption agencies and

authorities.

A consolidated annual report should be presented on the performance of their

functions to the Governor. In the case of Prof. S.N. Hegde vs the Lokayukta of
Bangalore and others, an important question was raised about the power of
the Lokayukta, under the Bangalore Lokayukta Act, 1984. The High Court in this
particular case held that if the Lokayukta has to investigate a complaint against
a public servant other than the Chief Minister or a member of the state
legislature or a secretary he has no such authority unless it is awarded to him
by a notice by the state government. The Lokayukta has no power to probe a
complaint against the vice-chancellor under the provisions of the Act as the
authority is forbidden considering Section 14 of the Universities Grants
Commission Act, 1956 so that Lokayukta has no power under the notification
to inquire the complaints against them.
The Lokayukta Act of 1975 created the status of the Uttar Pradesh
Lokayukta and based on the Uttar Pradesh Lokayukta and Upa Lokayukta Act of
1975, the Lokayukta and Deputy Lokayukta are nominated by the Governor.
After consulting the Chief Justice, and the leader in opposition of the state
assembly the Lokayukta is named. The Lokayukta enjoys the same power as a
civil court under the Code of Civil Procedure, 1908 that epitomizes the
summoning of the individual, reviewing public records or request copies from
any court or office, and giving commission for the inspection of witnesses or
records. If there is any false complaint, the Lokayukta’s force is accessible in a
confined form under the Code of Criminal Procedure, 1973. By controlling the
Lokayukta, the state government has added to its position.
24.Explain the procedural safeguards available to a civil servant in case of his
dismissal or removal from service.

• The purpose of Article 311 is to safeguard Civil servants. Further, it

places two restrictions on the ‘doctrine of pleasure’. In other words, it
provides safeguards to civil servants against any arbitrary dismissal from
their posts [Article 311 clause (1) and (2)].
• It helps them to respond to charges in an enquiry so that the Civil
servant is not dismissed arbitrarily from the service.
• Article 311(2) [holding inquiry] is not available in the following three
cases:
o 2 (a) – Where a person is dismissed or removed or reduced in rank
on the ground of conduct which has led to his conviction on a
criminal charge; or
o 2 (b) – Where the authority empowered to dismiss or remove a
person or to reduce him in rank is satisfied that for some reason,
to be recorded by that authority in writing, it is not reasonably
practicable to hold such enquiry; or
o 2 (c) – Where the President or the Governor, as the case may be,
is satisfied that in the interest of the security of the State, it is not
expedient to hold such enquiry.

The opportunity of being heard

• Originally, the opportunity of being heard was given to a civil servant at

two stages – at the inquiry stage, and at the punishment stage.
 • But, the 42nd Amendment Act of 1976 abolished the provision for
second opportunity (that is, the right of a civil servant to make
representation against the punishment proposed as a result of the
findings of the inquiry).
• Hence, the present position is that where it is proposed (after inquiry) to
impose upon a civil servant the punishment of dismissal, removal or
reduction in rank, it may be imposed on the basis of the evidence
adduced at the inquiry without giving him any opportunity of making
representation on the penalty proposed.
• The Supreme Court held that the expression ‘reasonable opportunity of
being heard‘ envisaged to a civil servant (in the second safeguard
mentioned above) includes:
o an opportunity to deny his guilt and establish his innocence, which
he can only do if he is told what the charges levelled against him
are and the allegations on which such charges are based;
o an opportunity to defend himself by cross-examining the
witnesses produced against him and by examining himself or any
other witnesses in support of his defence; and
o the disciplinary authority must supply a copy of the inquiry
officer’s report to the delinquent civil servant for observations and
comments before the disciplinary authority considers the report.

Constitutional Provisions Related to Civil Services

The following are the constitutional provisions related to the civil services:

• Articles 53 and 154: The executive power of the Union and the States
vests in the President or Governor directly or through officers
subordinate to him. These officers constitute the permanent civil
service and are governed by Part XIV of the Constitution (Services under
the Union and States (Article 308-323)).
• Article 309: It empowers the Parliament and the State legislature
to regulate the recruitment, and conditions of service of persons
appointed, to public services and posts in connection with the affairs of
the Union or of any State respectively.
• Government of India (Transaction of Business) Rules: The manner in
which the officers are required to help the President or Governor to
exercise his/her executive functions is governed by these Rules.
 • Article 311 – Dismissal, removal or reduction in rank of persons
employed in civil capacities under the Union or a State.
• Article 312 – All India Services.

25.Write a note on Sub delegation.

Refer Q. No.05.
26.Discuss judicial control over delegated legislation with appropriated cases.
Introduction:
With the growth of the administrative process in the 20th century
the delegated legislation has assumed great importance, today most of the
laws which govern the people come not from the legislature but the chambers
of administrators.
Delegated legislation is bureaucratic legislation, it involves the transfer of
legislative power from the legislature to the executive. The delegation of the
legislative power is permissible only when the legislative policy is adequately
laid down and the delegate is empowered to carry out the policy within the
guidelines laid down by the legislature. Delegated legislation does not fall
beyond the scope of judicial review, the courts often decide the validity of the
delegated legislation on the ground whether it is ultra vires or Intra vires to the
parent Act.

Doctrine of ultravires :

‘Ultra vires is a Latin phrase that means beyond the power or lack of power. An
act is said to be ultra vires if it is done by a person or a body of persons which
is beyond their authority or jurisdiction. The doctrine of ultra vires is the basic
doctrine in the area of administrative law, it provides that an authority has to
exercise only such power as it is conferred on it by the law. An action of the
authority is said to be Intra vires when it falls within the ambit of the powers
conferred on it, but ultra vires when it goes beyond the power conferred on it.
The doctrine has two aspects ;
1. Substantive ultravires ;and
2. Procedural ultravires
I. Substantive ultravires:
Substantive ultra-vires means that the delegated legislation has no substantive
power under the empowering Act to make the rules in question in other words
it means that the delegate cannot make a rule which is not authorized by the
parent statute. Therefore the delegated legislation may be held invalid on the
ground of substantive ultra-vires. The following are the circumstances of
substantive ultra-vires :
1. Constitutionality of the parent Act :
The first requirement for the delegation to be valid is that the parent Act or the
enabling statute by which the legislative power is conferred on the executive
authority must be valid and constitutional. If the parent statute is itself ultra-
vires the constitution then the delegated legislation is bad. In Chintaman Rao
v. State of Madya Pradesh, [1] the parent Act has authorized the deputy
commissioner to prohibit the manufacture of bidis in some areas for a certain
period, it was held that the parent Act was unconstitutional as it violated Art.
19(1) (g) of the constitution and the court also struck down the order passed
by the deputy commissioner.
2. Delegation of essential legislative functions :
It is a well-settled principle that the essential legislative functions must be
carried out by the legislature itself, if the essential legislative functions are
delegated then the same will be struck down .some essential legislative
functions include a repeal of the law, modification of the Act, and imposition of
taxes.
3. Constitutionality of the delegated legislation :
If the parent Act or some of its provisions through which the delegation is
conferred are in contravention of the constitution then the same will be
declared as ultra vires. In CB Muttamma v. Union of India,[2] a provision in
service-rule making a female employee obtain the permission of the
government before solemnizing the marriage and denying the right to get an
appointment on the ground that she was married was held to be
unconstitutional.
4. Unreasonableness and Arbitrary :
If the delegated legislation is unreasonable and arbitrary then it will be
declared invalid. In Air India v. Nargeesh mirza, [3] a regulation framed by air
India providing that services of an air hostess could be terminated if she
becomes pregnant was held arbitrary, unreasonable, and violative of articles
14 and 15 of the constitution. And in the case of the Indian council of legal aid
and advice v. Bar Council of India, [4] the court held that the rule framed by
the bar council of India barring enrolment of a person who is 45 years of age is
violative of articles 14,19 (1)(g) and 21 of the constitution.
5. Malafide :
If the delegated legislation is made by the administrative authority exercising
its power in Malafide or with the ulterior motive then the same will be held
ultra-vires and invalid. In Narendra Kumar v. Union of India, [5] the court
struck down the delegated legislation on the ground that the delegated
legislation has acted Malafide or in bad faith.
6. Exclusion of the judicial review :
Sometimes the clause is inserted in the parent Act ousting the jurisdiction of
the courts, such an ouster clause cannot affect the jurisdiction of the courts
under articles 32,136, and 226 of the constitution as judicial review is now
considered as a part of basic structure doctrine.
7. Retrospective operation :
Sometimes a delegated authority while making subordinate legislation tries to
give retrospective effect to the rules, but this power cannot be used by the
delegated authority unless it expressly confers powers in this regard. The court
in the case of State of Madhya Pradesh v. Tikim Das [6] held that “the
delegated authority cannot use the power of retrospective effect for rules and
regulations unless the concerned statute expressly or by necessary
implications confers power in this behalf”.
II. Procedural ultravires :
The delegated legislation may be challenged on the ground that it is not
following the procedure prescribed by the parent Act, if the delegated
legislation fails to comply with procedural requirements prescribed by the
parent Act or by the general law then it is said to be procedural ultra-vires.
The formalities which the authorities have to follow may include consultation
with the interested bodies, publication of the draft rules and regulations,
hearing of objections, etc. If these requirements are mandatory and the
authorities disregarded these formal requirements then the same may be
invalidated by the court being ultra-vires the Enabling Act.

Conclusion :

With the growth of the administrative law in the 20th century, the delegated
legislation has acquired a very prominent place in the administration, with
ever-widening state activities the parliament cannot exercise all its functions
without delegation, and hence delegation is utmost necessary however the
delegated legislation must not go beyond its authority while excessing its
power and the validity of the delegated legislation will be determined by the
courts whether it is Intra vires or ultra-vires to the parent Act.

27.Discuss the scope of Writ of mandamus for judicial review of

administrative actions.
Meaning
The word ‘mandamus’ means ‘command’. It refers to a command or order
issued to direct any person, corporation, inferior court or government to
perform the public duty that they are legally bound by. Any person who is
affected by the violation or abuse of such public duty and has the right to
compel its performance can apply to a High Court or the Supreme Court for the
issuing of the writ of Mandamus.

Conditions for the issuance of Mandamus

The following are the conditions to be satisfied before a writ of Mandamus

can be issued :

1. The person or authority against whom the writ is sought to be issued

must have some public duty to perform, which he has failed to do so.
2. Such public duty must be imperative or mandatory in nature and not
discretionary and there has to be a failure in its performance.
3. The petitioner should have the right backed by law to compel the
authority or person against whom he seeks to issue the writ of
Mandamus.
4. When the petitioner called upon the authority to perform its public
duty and it refused to do so.

Purpose of Mandamus

On comparing Articles 32 and 226, we can find that there is a difference

between the purposes for which a Mandamus can be issued by High Courts
and by the Supreme Court.

The following are the purposes for which a writ of Mandamus may be issued
:

1. For the enforcement of fundamental rights, the writ of Mandamus

will be issued by the court that would restrain the public official or
the government from doing the act against the aggrieved person.
2. There are other purposes for which writ of Mandamus can be issued
by a High Court, but not the Supreme Court. They are the following :
 1. To restrain a public official or the government from enforcing any law
that is unconstitutional.
2. To compel a court or tribunal to exercise its jurisdiction when it has
refused to do so.
3. To compel any person to perform their public duty which is either
constitutional or statutory.
4. When an official exercises his public authority excessively, or
unlawfully, or maliciously, or in a manner in which he does not apply
his mind in it, or abuses his discretionary powers.

Types of Mandamus

There are three types of Mandamus in the Indian legal system that one can
find by observing the judgments related to Mandamus. The three types of
Mandamus are the following :

1. Certiorarified Mandamus: The writ of Certiorari serves the purpose of

providing a judicial review for a case that has already been tried by a
subordinate court or when there has been an excess in its jurisdiction.
When it is issued, the order of the subordinate court will be quashed.
The writ of Mandamus can be issued when there has been a refusal in
the exercise of jurisdiction. In certain cases, the writ of Mandamus
and writ of Certiorari can coexist and complement each other. When
a case gets rescinded by writ of Certiorari, it can be tried again
according to the procedure of law, when a writ of Mandamus is
issued subsequently.
2. Anticipatory Mandamus: It has been confirmed in several judgments
that a writ of Mandamus cannot be issued on the mere apprehension
of the petitioner that his fundamental or any other statutory rights
are likely to be violated or that a public authority is likely to omit the
performance of its public duties.
3. Continuing Mandamus: In certain cases, after the issuing of a writ of
Mandamus, continuous supervision is also required. In such cases, the
court can issue interim directions for surveillance and also call for the
submission of a compliance report.
The case of John Paily & Ors v. the State of Kerala
In the recent case of John Paily & Ors v. State of Kerala & Ors [WPC 428/2021]
(LL 2021 SC 227), a writ petition was heard by Justice D.Y Chandrachud and
Justice M.R Shah, a two-judge bench of the Supreme Court. The petitioners
sought certain reliefs and asked the Court to issue the writ of Mandamus
under Article 32.

28.Discuss the various exceptions to the principles of natural justice with the
help of decided cases.
Exceptions

Doctrine of necessity and absolute necessity

It permits authorities to do certain things which are important, and those acts
which would in a typical circumstance not be permitted by the law. It is
invoked in circumstances where there is no authority to settle on a matter. The
Supreme Court has albeit set up that the Doctrine of Necessity ought not to be
summoned every now and then for even little matters, which may prompt a
shortfall of law and order. In case there is a decision to whether let a bias
individual act on a matter or regardless of whether to stop the actual matter,
the inclination will be given to the bias individual to follow up on it to get
distinct choices, despite the fact that which might be influenced by the bias of
that specific individual or authority, yet in any case, the choice of that bias
individual is important to reach a determination under a said matter.

Statutory exceptions to the rule of natural justice

Parliament may through its forces dispose of the techniques that are generally
vital for any authoritative activity. Any activity of the parliament which doesn’t
allow the people certain rights during the time-frame of the act, such act will
undoubtedly go under the investigation of the courts and might be tested
under Article 14 of the Constitution. A rule might avoid natural equity either
explicitly or by vital ramifications

Special case during circumstances of crisis

It is by and large seen in India that during a circumstance of crisis, in those

situations where the option to be heard will influence the government process,
it will be barred by the law for that time. It is essential in those circumstances
where the course of reasonable hearing might take too much and in outcome
put the general public in a tough situation either because of any outer power,
regular power or any inward difficulties.

Exception in situations where public interest is of significance

In those circumstances, thinking about the government assistance of the

general population everywhere, not to dispense any such data which might put
the wellbeing of people in general at danger. State should ensure that it ought
not to think twice about the security of its region and that it ought to secure all
the data that it has which is of public significance.

Exception in case of impracticality

Natural justice can be applied just when it is viable in nature to apply it. Be that
as it may, natural justice can be avoided when there is no common sense to
the circumstance in it.

In Bihar School Examination Board versus Subhash Chandra vs Subhas

Chandra Sinha, & Ors, 10th March 1970 AIR 1269 1970 SCR (3) 963 1970 SCC
(1) 648, the assessment board led class X board tests. In any case, it was
claimed that there was mass copying in the tests, and during the checking, it
was on the first view found that there has been mass copying. Following this,
the board gave a new notification which guided the students to show up for
new tests once more, without allowing any opportunity for the students to
have themselves understood. This was tested in the High Court by students,
and the High Court suppressed the sheets’ notification saying that the
guideline of Audi Alteram Partem has been abused and the students have not
been heard because of this declaration, the load moved towards the Supreme
Court, and the Supreme Court struck down the request for the High Court,
saying that it is illogical to hear issues of all students in such a modest situation
and it was held that on the grounds of difficulty, the standard can be rejected
in this specific case.

Exception in instances of scholarly assessment

If the authority involved is academic in nature or is of complete administrative

nature, in such cases, their assessments might be barred from the ambit of the
rule of natural justice.

29.What is administration discretion? Elucidate abuse of discretion.

Introduction:
Discretion has defined as the freedom or authority to make judgments and
choose amongst the various available alternatives without reference to any
predetermined criterion, no matter how fanciful that choice may be.
Administrative discretion means to choose from among alternatives with
justification and not according to personal whims.

The legislature and the executive two pillars set up by the Constitution. The
fact is that Parliament can not legislate on all aspects of a certain matter and
simply vest authority in the executive to implement the same. In certain
instances, it is required to leave certain gaps in law and allow the sole
discretion of the executive authorities on a case-to-case basis. Administrative
discretion is problematic but indeed the government can not function without
the exercise of some discretion by officials. It is important not only for the
individualization of the administrative power but it is impossible to rule for
everybody. But it also trues that absolute discretion is a ruthless master. There
has been a conflict between the claims of the administration to an absolute
discretion and subject to a reasonable exercise of it.

Indian Approach for Administrative Discretion

India has formulated a parameter for the exercise of discretion, the concept of
judicial behaviour still halting, variegated, and lacks the activism of the
American courts. Judicial control of administrative discretion is exercised at
two stages:

• The administrative authority ceased to function the authority vested in

it.
• The authorities exercised discretion incorrectly with mala side, improper
purpose, and under the influence of another body.
Control at the stage of delegation discretion – the court exercises control over
dictionary powers of the administration by adjudicating upon the
constitutionality of the law under such powers are vested concerning the
fundamental rights in the Indian Constitution. If the law confers indistinct and
wide discretionary power on any administrative authority, it may declare ultra
vires Article 14 and 19 and the other provisions of the constitution. In cases of
delegated legislation, courts are satisfied with the statements and policy but
not in the case of fundamental rights to states conferring administrative
discretion. This is the main reason behind less administrative arbitrariness than
administrative discretion lies from case to case.

• Abuse of discretion
 • the formulation has been developed by courts in India to control the
exercise of discretion by the administrative authority. Improper
exercise of discretion includes such things as mala fide, improper
purpose, irrelevant or relevant considerations, no material,
misdirection of law and fact, unreasonableness.

Mala fide

It means with bad intention, not in good faith. The term mala side used by
courts is a broad term, in the case of Jai Chand v.State of West Bengal, the
Supreme Court observed that exercise the power of mala fide does not mean
to imply any element on turpitude is attached to it as in the case of mala fide.
In the procedure of decision-making, mala fide is allowed. Malice may be
either a fact or the law. The case that motives behind an administrative action
is personal animosity, spite, personal benefit to the authority itself or friends.

Pratap Singh v. State of Punjab

The appellant, a surgeon in the employment of State Government, was granted

leave preparatory to retirement, but it was revoked and he was suspended
under disciplinary action was started against him on the charge that he had
accepted Rs. 16 bribe from the patient before going on leave. The appellant
alleged these charges and had been initiated at the instance of the chief
minister to wreak the personal grudge against him because he had refused to
yield to their illegal demands of his. The Supreme Court held that exercise of
power to be mala fide.

G. Sadanadan v. State of Kerala

The DSP (Civil Supplies Cell) passed a detention order against those kerosene
dealers who will operate without a license and dealing in kerosene illegally. It
was alleged that DSP was acting mala fide because his brother was a
competitor in the same business. The DSP did not file a counter affidavit in
court against his charges. The court quashed the action.

Improper Purpose

The statutes confer power for one purpose, and that is used for different
purposes will not be regarded as a valid exercise of powers that will be
quashed. In modern times, the cases have been increased because the
conferment of broad discretion power has become a usual tendency.
R.L. Arora v. State of uttar Pradesh

The Land Acquisition Act, 1894 allowed the state government to give consent
to acquisitions property for industrial purposes if it is useful for the public. The
government has assented to the acquisition of property by a textile factory. It
was challenged because the government could not interpret the statute and
exercised discretion on the same as well. The court held that the purpose of
the statute was to allow the acquisition when the construction of a work after
acquisition would be a benefit to the people. In this case, the benefit would
arise after construction, when it’ll function. The order of the government was
struck down because it violated the mandate of legislation.

Irrelevant or Relevant Consideration

A discretionary power must be exercised on relevant consideration, not on

irrelevant consideration. It means power must be exercised into account
consideration that is mentioned in the statute. If it is not mentioned in the
statute then power is to be exercised on considerations relevant purpose that
is conferred. If the authority has used power for irrelevant cases then it would
be ultra vires and quashed.

Barium Chemicals Ltd. V. Company Law Board

Under section 236 of the companies Act, the CLB can order an investigation
against the company if the company is being conducted for defrauding the
creditors or the persons involved in the management are guilty of fraud and
other things or full information has not been given about the company. The
investigation was ordered in the case on the ground that continuous losses
owing to faulty planning and many directions had left the board. This order
was challenged and the court held that this order state that these grounds
were irrelevant and extraneous to the purpose that is mentioned in the
statute.

No Material

All discretionary action must be based on sound material and facts. There
should be the application of mind when discretion action has taken even the
discretion vested in the authorities.

Misdirection of Law and Fact

Sometimes authorities may act beyond the scope of the powers given by the
law, and it may make such mistakes and it came as a misinterpretation of the
law and facts that go beyond the scope of the power vested in them. If such a
mistake concerned the better place by law is made, it would vitiate the
exercise of discretion.

Unreasonableness

The statute may require the authority to act reasonably. The courts have
stated that the authority should consider the question fairly and reasonably
before taking action. The term unreasonableness does not furnish
independent grounds of judicial control powers apart from the grounds
already mentioned. The term may include those cases where the authority has
acted according to law but in the wrong manner and either according to law
and right manner but on wrong grounds.

Proportionality

Judicial control has been formulated to check the exercise of administrative

discretion. This ensures that unfettered power is not given to authority that
allows arbitrary decision-making. The rule of proportionality means to ensure
there is nexus between the aim that has to be attained and the means
undertaken to do so. An application of this rule is in departmental hearings
where the punishment was given to employees is grossly out of proportion
considering the wrong committed.

Ranjit Thakur v. Union of India

In this case, an army official was court-martialled in response to a minor

indiscretion committed by him. He challenges the order in which the Supreme
Court held that rule of proportionality demanded that punishment should be
given nexus with the act committed and is proportional to the same.

30.Write a note on Classification of administrative action.

MEANING OF ADMINISTRATIVE ACTION

Administrative action is the action which is neither legislative nor judicial in

nature but only concerned with the analysis and treatment of a particular
situation and is devoid of generality. It has no procedure of collecting evidence
and weighing arguments but only based upon subjective satisfaction where
decision is based on policy and expediency. It does not decide a right or wrong ,
neither it ignores the principles of natural justice completely though it may
affect a right. Unless the statute provides otherwise, a minimum of the
principles of natural justice must always be observed depending on the fact
situation of each case.

Administrative action may be statutory, having the force of law, or non

statutory, devoid of such legal force. The bulk of the administrative action is
statutory because a statute or the Constitution gives it a legal force but in some
cases it may be non-statutory, such as issuing directions to subordinates not
having the force of law, but its violation may be visited with disciplinary action.
Though by and large administrative action is discretionary and is based on
subjective satisfaction, however, the administrative authority must act fairly,
impartially and reasonable.

CLASSIFICATION

Administrative action is classified broadly into three main organs of the

government namely-

• Legislative
• Executive
• Judiciary
In Jayantilal Amritlal Shodhan V. F.N Rana and Ors

Generally an administrative action can be further bifurcated into 3 parts-

• Quasi-legislative action or Rule making: It includes the rule making power

and delegated legislation. Under this organ the administration performs
the function of legislation in such situations where it is not possible for
any legislation to legislate laws for the kind of conflicts arising.
• Quasi-Judicial action or Rule decision action: It includes such conditions
under which the administration puts on the hat of the judiciary and
confers the special power of taking decisions in cases where legal rights
of individual are effected.
• Purely administrative action or Rule application action: This includes the
actions which are neither legislative nor judiciary but purely
administrative in nature.
In Article 14 and 21 of the constitution of India, the concept of natural justice is
defined in case of consequences suffered in administrative action.

In case of A.K. Kraipak v. Union of India, the Court held that in order to
determine whether the action of the administrative authority is quasi-judicial or
administrative in nature, one has to see the power conferred, to whom power
is given, the framework within which power is conferred and the consequences.

31.What is rule of law and discuss its position in India?

Refer Q.No.2
32.Discuss the position of Separation of powers in the context of collegium
recommending judges to apex judiciary.
The Collegium of the Supreme Court consists of 5 senior most Judges including
the Chief Justice of India. They will consider the elevation of Chief
Justices/Judges of High Court to Supreme Court, elevation of Judges of High
Courts as Chief Justices and elevation of Judges. In case of difference of
opinion, the majority view will prevail. Since Constitution mandates
consultation with the Chief Justice of India is necessary for appointments to
judiciary, the collegium model evolved.
Article 124 deals with the appointment of Supreme Court judges. It says the
appointment should be made by the President after consultation with such
judges of the High Courts and the Supreme Court as the President may deem
necessary. The CJI is to be consulted in all appointments, except his or her
own.
Article 217 deals with the appointment of High Court judges. It says a judge
should be appointed by the President after consultation with the CJI and the
Governor of the state. The Chief Justice of the High Court concerned too
should be consulted.
SC guidelines on Appointments

1. The term consultation with the Chief Justice of India in Articles 124 (2),
217(1) and 222 (1) requires consultation with a plurality of judges in the
formation of the opinion of the CJI. The sole, individual opinion of the CJI
does not constitute consultation.
2. The CJI can only make a recommendation to appoint a judge of the
Supreme Court and to transfer a Chief Justice or puisne judge of a High
Court in consultation with the four senior-most judges of the Supreme
Court. As far as the High Courts are concerned, the recommendation
must be made in consultation with the two senior-most judges of the
Supreme Court.
3. Strong cogent reasons do not have to be recorded as justification for a
departure from the order of seniority in respect of each senior judge
 who has been passed over. What has to be recorded is the positive
reason for the recommendation.
4. The views of the judges consulted should be in writing and should be
conveyed to the Government of India by the CJI along with his views to
the extent set out in the body of this opinion.
5. The CJI is obliged to comply with the norms and the requirement of the
consultation process in making his recommendations.
6. Recommendations by the CJI without [such compliance] are not
binding upon the government.
7. The transfer of High Court judges is judicially reviewable only if the CJI
took the decision without consulting the other four judges in the
Supreme Court collegium, or if the views of the Chief Justices of both
High Courts [involved in the transfer] are not obtained.
8. The CJI is not entitled to act solely in his individual capacity, without
consultation with other judges of the Supreme Court, in respect of
materials and information conveyed by the Government for non-
appointment of a judge recommended for appointment.
9. The CJI can consult any of his colleagues on the appointment of a HC
judge to the Supreme Court or transfer of a puisne judge. The
consultation need not be limited to colleagues who have occupied the
office of a judge or Chief Justice of that particular High Court.

33.Explain the nature and effect of administrative directions with the help of
decided cases.
Introduction:
Administrative directions are the instructions which are issued by some higher
authority to a lower authority. Through these directions the authority on the
higher hand tries to direct the way in which certain discretionary powers are to
be exercised by executive.

These directions are generally issued when there is an absence of certain

important rules regarding some issues or in order to create better standard of
rules when there are lacunas in the existing laws and statutes. The various
mechanisms used in issuing such directions are letters, circulars, orders,
memoranda, pamphlets, public notices, press notices and sometimes even as a
notification in the government gazettes.

The Administrative directions has its genesis in Article 73 and 162 of the
constitution. These two articles deal with the administrative powers of the
Union and State level government and the directions are generally issued under
it.

• Article 73 talks about the executive power of the Union, extending to the
matters in which Parliament has rights to make laws
• Article 162 talks about the executive power of the State, extending to the
matters in which the state legislature has power to make laws.

In the case of Union of India vs. Rakesh Sharma, the Supreme Court observed
that, when rules are silent on any topic, the government can fill the gaps and
issue the administrative directions but such directions should not be
inconsistent with the rules.
An important case summarizing and laying certain guidelines regarding the
enforceability of administrative directions is Union of India vs. Charanjeet S. Gill
in which court has stated that

• Administrative instructions issued in the absence of any statutory

authority has no force of law, and it cannot supplement any provision of
law, rules acts and regulations.
• These directions provides government with the power to fill up gaps
which are there in the present rules and laws
• Administrative directions cannot take away rights vested in the persons
governed by the act if they do not have any statutory backing.

34.Explain the reasons for growth of delegated legislation and procedure

control over delegated legislation.
Refer Q.No. 05
35.What is meant by discretionary power? Distinguish discretionary power
from arbitrary power from arbitrary exercise of power in administration.
Discretionary Powers:
A ministerial function is one where the authority has a duty to do a particular
thing in a particular way. Such actions are however exceptional. In most
administrative actions, the administrative authority has the power either to act
or not to act in one way or the other. This power to act or not to act in one way
or other is called Discretionary power.
Discretionary powers exercised by administrative and legal authorities are
permissive, and not binding. These powers are granted to these officials by
statute or delegation. Discretionary powers do not impose an obligation on a
decision-maker to exercise them or to exercise them in a particular manner.
Administrative agencies must exercise discretionary powers in accordance to
legal requirements. Discretionary power must be used reasonably, impartially
and avoiding oppression or unnecessary injury.
Generally, administrative agencies are given broad discretion to exercise their
administrative authority. Generally, statutes expressly confer right to exercise
discretionary power to administrative agencies. However, administrative
agencies’ duties necessarily include the right to exercise discretion. Reason for
granting discretionary power to administrative agencies is because they
possess experience and specialization in a particular area. This experience and
specialization help agencies in making decisions in the agencies’ area of
expertise.
Administrative agencies are provided with discretionary power to ascertain
place and time to hear and decide matters that come before it. Agencies have
the power to prosecute or enforce matters through civil or criminal process.
Administrative law judges have discretion to abstain from participating in a
legal proceeding due to a conflict of interest of the adjudicator. Abuse of the
discretionary power can be alleged only to reverse a decision and not to allow
it. In addition to that, an adjudicator has power to decide whether or not to
impose a sanction.
Necessity:
There are at least four good reasons for conferring discretion on
administrative authorities:
(a) The present-day problems which the administration to called upon to deal
with are complex and varying nature and it is difficult to comprehend them all
within the scope of general rules.
(b) Most of the problems are new, practically of the first impression. Lack of
any previous experience to deal with them does not warrant the adoption of
general rules.
(c) It is not always possible to foresee each and every problem but when a
problem arises it must in any case be solved by the administration in spite of
the absence of specific rules applicable to the situation.
(d) Circumstances differ from case to case so that applying one rule
mechanically to all cases may itself result in injustice.

Administrative Power:
Administrative power is the power to administer or enforce a
law. Administrative powers can be executive, legislative, or judicial in
nature. Administrative power intends to carry the laws into effect, practical
application of laws and execution of the principles prescribed by the lawmaker.
In Robertson v. Schein, 305 Ky. 528 (Ky. 1947), it was observed that“the
authority to make rules and regulations to carry out a policy declared by the
lawmaker is administrative and not legislative. Therefore, the power of an
administrative agency to make rules to carry out a policy is administrative in
nature[i]. The issue of an administrative body’s authority presents a question
of law and not a question of fact”.
Administrative Powers conferred by Law:
The government has power to dismiss, remove or reduce in rank a government
servant but such a power is exercisable after giving a hearing into the
concerned person. Rule 16(3) of the All India Services (death-cum-retirement)
Rules, 1958 empowers the Central government to compulsorily retire a
government servant who has put in certain years of service after giving him
three months’ notice. This provision has been held to confer a very wide
discretion on the government to retire a government servant without giving
him a hearing and so it is an administrative power.
The Requisitioning and Acquisition of Immovable Property Act, 1952 authorises
the Central government to requisition private immovable property for
purposes of the union and this term is not defined in the act and so the central
government has a large discretionary power to requisition private property for
any purpose deemed necessary by it.

36.Whether exhaustion of alternative administrative remedies is a must for

judicial review of abuse of administrative power discuss?
Judicial review has been recognized as a necessary and basic requirement for
the construction of an advanced civilization to safeguard the liberty and rights
of the citizens. The power of judicial review in India is significantly vested upon
the High Courts and the Supreme Court of India. Judicial review is the court’s
power to review the actions of other branches of government, especially the
court’s power to deem invalid actions exercised by the legislative and executive
as ‘unconstitutional’.

Broadly, judicial review in India deals with:

1. Judicial Review of Legislative Actions;

2. Judicial Review of Administrative Actions;
3. Judicial review of Judicial Actions.
We will be dealing with the second aspect i.e. judicial review of administrative
actions. The judicial review ensures the legality of administrative actions.
Grounds of judicial review
The doctrine-ultra-vires is the basic structure of administrative law. It is
considered as the foundation of judicial review to control actions of the
administration. Ultra-vires refers to the action which is made in an excessive
manner or outside the ambit of the acting party.

Generally, the grounds for judicial review in India are as follows-

1. Jurisdictional Error;
2. Irrationality;
3. Procedural Impropriety;
4. Proportionality;
5. Legitimate Expectation.
The above grounds of judicial review were given by Lord Diplock of England in
the case of Council of Civil Service Union v. Minister of Civil Service(1984).
Though these grounds of judicial review are not exhaustive, yet these provide
an apt base for the courts to exercise their jurisdiction.

Jurisdictional Error

The term ‘jurisdiction’ means the power to decide. There might be a ‘lack of
jurisdiction’, ‘excess of jurisdiction’ or ‘abuse of jurisdiction’. The court may
reject an administrative action on the ground of ultra vires in all these three
situations.

A case of ‘lack of jurisdiction’ is where the tribunal or authority holds no power

or jurisdiction at all to pass an order. The court may review this administrative
action on the ground that the authority exercised jurisdiction which it was not
supposed to. The power of review may be exercised on the following three
grounds-

1. That the law under which the administrative authority is constituted

and exercising jurisdiction is itself unconstitutional,
2. That the authority is not properly constituted as the law requires, and
 3. That the authority has mistakenly decided a jurisdictional fact and
henceforth assumed jurisdiction which did not belong to it first.
A case of ‘excess of jurisdiction’ covers a situation wherein though the authority
initially had the jurisdiction over a matter but then it exceeded and afterwards
its actions become illegal. This can happen in the following situations when –

1. An administrative body continues to exercise jurisdiction despite the

occurrence of an event ousting the jurisdiction, and
2. When it is entertaining matters outside its jurisdiction.
All administrative powers must be exercised bonafide and fairly. If the powers
are abused, it will give rise to a ground of judicial review. An ‘abuse of power’
may arise under the following conditions-

1. Improper purpose- When an authority uses its power for a different

purpose
2. Error apparent on the face of record- When it can be ascertained by
examining the record without having to recourse to other evidence.
3. In bad faith- Where an administrative authority has acted dishonestly
by stating to have acted for a particular motive when in reality the
decision was taken with some other motive in mind.
4. Fettering discretion- When an authority adopts a policy in the exercise
of its powers, which means that it is not actually exercising its
discretion at all.
5. Non-consideration of relevant material- When a decision-maker does
not look at the relevant matter.

37.Explain the government liability for breach of contracts with the help of
decided cases.
Refer question no.11
38.Write a note on control over public undertakings.

Refer question. No.14.

39.Discuss the definitions, nature and scope of administrative law.

Introduction:
Administrative law is basically a law which regulates the actions of
administrative authorities or agencies. Administrative law tries to develop a
relation between the public and government by regulating itself as the time
required. Administrative law as per the Indian perspective it is almost judge-
made law it is because of its changes by the court case by case in the form of
guidelines. It contains all aspects of administrative actions as it can work as
legislative as it has delegated powers given through legislature but in limits, it
can also work as executive as it enforces the law or implements the law, it comes
in the role of the judiciary when there is need to make quick decisions but there
can be judicial review of that actions if there is contrary in that decision.
Administrative law regulates all these actions and ensures remedies against the
arbitrary actions of administrative agencies.

Definitions of Administrative law

Administrative law is a law related to administration and can be defined as the

law which governs the activities of the administrative agencies of the
government including actions like rulemaking, adjudication, or the
enforcement of a particular agenda.

Many scholars state different definitions of Administrative law in their views:

According to K.C. Devis, Administrative law is a law which is related to powers

and procedures of administrative agencies, including specially the law related
to judicial review of administrative actions.

According to Ivor Jennings, Administrative law is relating to the administration

which helps in the determination of the organization, powers and duties of the
administrative authorities.

According to F.J. Port, Administrative law consists of all legal rules which have
ultimate objects to fulfill the public law, it touches legislature and judiciary too
and also there are rules which govern judicial actions such as issuing writs
brought by or against the administrative person, rules that permit the
administrative body to exercise judicial powers and practical application of the
law.
According to Austin, Administrative law is to determine the ends to and the
modes in which the sovereign powers shall be exercised. It shall be directly or
by the subordinates.

According to Prof. H.W.R. Wade, Administrative law is the law which controls
the powers of the government.

Nature of Administrative law

Administrative law is the branch of public law which defines the relation
between individuals and state. But it is not a law in a true sense like other laws
such as property law or labor law. It is also not like private law which deals
with relations of individual inter se. it is a law to administer the administrative
authorities and check them from making any arbitrary decisions.
Administrative law deals with the organization, powers and duties of the
administrative authorities and also the procedure followed by the officials
while exercising the powers. Administrative law is limited to the law which
limits the power of administrative authorities while exercising the powers. It
also provides remedies in the favor of the public when the rights of the public
encroached.

In India, administrative law is almost judge made law. Thus it suffers from
more facilities and benefits because of judicial lawmaking. Judiciary interprets
law according to the need of time and issues guidelines for such. It affects
administrative law and makes it more strong and beneficial. It is a branch of
the constitution that regulates all three branches i.e. legislative, executive and
judiciary in the same way administrative regulates all administrative
authorities and protects them from corrupt practices. Its main purpose is to
focus on the judicial review of administrative actions. In this way, there is
protection from the arbitrary actions of the administrative actions.
Administrative actions can be legislative, executive or judiciary. Administrative
can do all of three actions when which is required to do so. By delegation
legislation administrative has the power to make law when it comes to
implementation of administrative acts as an executive and when it comes to
making quick decisions then the administrative can act as the judiciary. The
nature of administrative law changes according to the need.

Scope of Administrative law

Scope means an area of study or the variety of subjects that are being
discussed or considered. As administrative law is almost judge-made law so it
changes according to societal needs but in the guidance of the basic principles
so the scope of this law is wider in comparison to other laws. Administrative
law determines the powers and duties of the organization and the
administrative authorities. The scope of administrative law is wide enough
because, with the requirement of time, Administrative Law incorporates and
culls out new rules and regulations. The concept of administrative law is
founded on the following:-

1. Principles of natural justice and for rulemaking

2. Notion of the Rule of law

3. Law conferred power to administration as per Article 13 of the Indian

Constitution

4. Accountability of powers, no power is absolute or uncontrolled

5. There should be a reasonable restriction on the regulations of such powers

6. The power of the court to issues writs

7. Opinions of public and mass media.

As administrative law incorporates new rules and regulations as per the

requirement of time, so its scope is wide enough to incorporate all such rules
and regulations. In general, it is a judge made law so it varies according to
societal needs. The scope of the administrative law is wide as it can act as all
three branches of the government. It can make law, implement the law and
can also take decisions whenever required. But the review of the decision can
be taken and on the basis of that review, the court can issue guidelines if there
is any contradiction in that decision.

40.Explain the concept of rule against bias with decided cases.

Refer Q.No. 28
41.Explain the scope of the writ of certiorari and prohibition in controlling
administrative actions.
Refer Q.no.21.
42.Explain the various grounds for exercising judicial review of administrative
discretion in India with decided cases.
The doctrine-ultra-vires is the basic structure of administrative law. It is
considered as the foundation of judicial review to control actions of the
administration. Ultra-vires refers to the action which is made in an excessive
manner or outside the ambit of the acting party.

Generally, the grounds for judicial review in India are as follows-

1. Jurisdictional Error;
2. Irrationality;
3. Procedural Impropriety;
4. Proportionality;
5. Legitimate Expectation.
The above grounds of judicial review were given by Lord Diplock of England in
the case of Council of Civil Service Union v. Minister of Civil Service(1984).
Though these grounds of judicial review are not exhaustive, yet these provide
an apt base for the courts to exercise their jurisdiction.

Jurisdictional Error

The term ‘jurisdiction’ means the power to decide. There might be a ‘lack of
jurisdiction’, ‘excess of jurisdiction’ or ‘abuse of jurisdiction’. The court may
reject an administrative action on the ground of ultra vires in all these three
situations.

A case of ‘lack of jurisdiction’ is where the tribunal or authority holds no power

or jurisdiction at all to pass an order. The court may review this administrative
action on the ground that the authority exercised jurisdiction which it was not
supposed to. The power of review may be exercised on the following three
grounds-
 1. That the law under which the administrative authority is constituted
and exercising jurisdiction is itself unconstitutional,
2. That the authority is not properly constituted as the law requires, and
3. That the authority has mistakenly decided a jurisdictional fact and
henceforth assumed jurisdiction which did not belong to it first.
A case of ‘excess of jurisdiction’ covers a situation wherein though the authority
initially had the jurisdiction over a matter but then it exceeded and afterwards
its actions become illegal. This can happen in the following situations when –

1. An administrative body continues to exercise jurisdiction despite the

occurrence of an event ousting the jurisdiction, and
2. When it is entertaining matters outside its jurisdiction.
All administrative powers must be exercised bonafide and fairly. If the powers
are abused, it will give rise to a ground of judicial review. An ‘abuse of power’
may arise under the following conditions-

1. Improper purpose- When an authority uses its power for a different

purpose
2. Error apparent on the face of record- When it can be ascertained by
examining the record without having to recourse to other evidence.
3. In bad faith- Where an administrative authority has acted dishonestly
by stating to have acted for a particular motive when in reality the
decision was taken with some other motive in mind.
4. Fettering discretion- When an authority adopts a policy in the exercise
of its powers, which means that it is not actually exercising its
discretion at all.
5. Non-consideration of relevant material- When a decision-maker does
not look at the relevant matter.

Irrationality (Wednesbury Test)

A general established principle is that the discretionary power conferred on an

administrative authority should be exercised reasonably. A decision of an
administrative authority can be held to be unreasonable if it is so outrageous in
its defiance of logic or prevalent moral standards that no reasonable person who
had applied his mind to the subject could have arrived at it.
‘Irrationality’ was developed as a ground of judicial review in the Associated
Provincial Picture House v. Wednesbury(1947) case which later came to be
known as the ‘Wednesbury test’. The court laid out three conditions in order to
conclude the right to intervene-

1. In arriving at the decision, the defendant took into consideration the

factors that ought not to have been taken into, or
2. The defendant failed to take into consideration the factors that ought
to have been taken into, or
3. The decision was so unreasonable that any reasonable authority would
never consider imposing it.
The court held that it could not intervene to change the decision of the
defendant simply because it disagreed with it.

Procedural Impropriety

It is a failure to comply with the laid down procedures. Procedural Impropriety

is to cover two areas which are failure to observe rules given in statute and to
observe the basic common-law rule of justice.

Ridge v Baldwin(1963) is an exclusive case where procedural fairness shows its

insistence on the judicial review irrespective of the type of body determining the
matter. Ridge, the Chief Constable of Brighton was suspended on the charges of
conspiracy to obstruct the course of justice. Despite the clearance of allegations
against Ridge, the Judge made comments which criticized Ridge’s conduct.
Following that, Ridge was dismissed from the force but he was not invited to
attend the meeting which had decided his dismissal. Later, he was given an
opportunity to be heard before the committee which had dismissed his appeal.
Ridge then appealed to the House of Lords that the committee had totally
violated the rules of natural justice. This case has been important because of the
emphasis on the link existing between the right of a person to be heard and the
right to know the case brought against him.

Proportionality

Proportionality means that the concerned administrative action should not be

more forceful than it requires to be. The principle of proportionality implies that
the court has to necessarily go into the advantages and disadvantages of the
action called into question. Unless the so-called administrative action is
advantageous and in the public interest, such an action cannot be upheld. This
doctrine tries to balance means with ends.

Courts in India have been adhering to this doctrine for a long time but Courts in
England started using it after the passing of the Human Rights Act, 1998. In the
test of proportionality, the court quashes the exercise of discretionary powers
in which there is no reasonable relation between the objective to be achieved
and the means of achieving it. If the administrative action is disproportionate to
the mischief, it will be quashed.

In Hind Construction Co. v. Workmen(1965), some workers called for a holiday

and remained absent. They were later dismissed from service. The court held
that the workers should have been warned and fined instead of abruptly being
dismissed in a permanent manner. It was out of the question to think that any
reasonable employer would have given such extreme punishment. The court
held that the punishment imposed on the workmen was not only severe but also
disproportionate.

Legitimate Expectations

This doctrine serves as a ground of judicial review to protect the interest when
a public authority rescinds from a representation made to a person. A legitimate
expectation arises in the mind of the complainant who has been led to
understand expressly or impliedly that certain procedures will be followed in
reaching a decision. The expectation has a reasonable basis. This doctrine has
evolved to give relief to the persons who have been wronged because of the
violation of their legitimate expectation and have not been able to justify their
claims on the basis of law. Two considerations determine legislative
expectations-

1. Where an individual or group has been led to believe impliedly or

expressly that a certain procedure will apply.
2. Where an individual or group relies upon a particular policy or
guideline which has previously governed an area of executive action.
In Regina v. Liverpool Corporation ex parte Liverpool Taxi Fleet Operators
Association(1972), the Corporation had given undertakings to the effect that the
taxi drivers’ licenses would not be revoked without their prior consultation. But
the corporation acted in the breach of its undertaking. The court ruled that the
taxi drivers had a right to be consulted.

43.The vicarious liability of the state for the torts committed its servants is
governed by three principles. Explain with decided cases.

Introduction

Vicarious Liability deals with cases where one person is liable for the acts of
others. So in a case of vicarious liability both the person at whose behest the act
is done as well as the person who does the act are liable. Thus, Employers are
vicariously liable for the torts of their employees that are committed during the
course of employment. The common examples of such a liability are:

1. Liability of the principal for the tort of his agent.

2. Liability of partners of each other’s tort.
3. Liability of the master for the tort of his servant.
4. Liability of the State or Liability of the Administration.

Constituents of Vicarious Liability:

So the constituents of vicarious liability are:

1. There must be a relationship of a certain kind.

2. The wrongful act must be related to the relationship in a certain way.
3. The wrong has been done within the course of employment.

Vicarious Liability Of The State:

The term ‘administration’ is used here synonymously with ‘state’ or

‘Government’. To what extend the administration would be liable for the torts
committed by its servants is a complex problem especially in developing
countries with ever widening State activities. The liability of the government in
tort is governed by the principles of public law inherited from British Common
law and the provisions of the Constitution. The whole idea of Vicariously Liability
of the State for the torts committed by its servants is based on three principles:

• Respondent superior (let the principal be liable).

• Quifacit per alium facit per se (he who acts through another does it
himself).
• Socialization of Compensation.
Vicarious Liability of State in India

The position of State liability as stated in Article 300 of the Constitution is as

under: Clause (1) of Article 300 of the Constitution provides first, that the
Government of India may sue or be sued by the name of the Union of India and
the Government of a State may sue or be sued by the name of the State;
secondly, that the Government of India or the Government of a State may sue
or be sued in relation to their respective affairs in the like cases as the Dominion
of India and the corresponding Provinces or the corresponding Indian States
might have sued or be sued, “if this Constitution had not been enacted”, and
thirdly, that the second mentioned rule shall be subject to any provisions which
may be made by an Act of Parliament or of the Legislature of such State, enacted
by virtue of powers conferred by the Constitution.

Consequently, one has to uncover the extent of liability of the East India
Company in order to understand the liability parameters of the administration
today because the liability of the administration today is in direct succession to
that of the East India Company.

The East India Company launched its career in India as a purely commercial
corporation but gradually acquired sovereignty. Therefore, in the beginning, the
company did not enjoy the immunity of the Crown. It was only when it acquired
political powers that a distinction was made between sovereign and non-
sovereign functions.

State Liability:
Under the English Common Law the maxim was “The King can do no wrong” and
therefore, the King was not liable for the wrongs of its servants. But, in England
the position of old Common law maxim has been changed by the Crown
Proceedings Act, 1947. Earlier, the King could not be sued in tort either for
wrong actually authorized by it or committed by its servants, in the course of
their employment. With the increasing functions of State, the Crown
Proceedings Act had been passed, now the Crown is liable for a tort committed
by its servants just like a private individual. Similarly, in America, the Federal
Torts Claims Act, 1946 provides the principles, which substantially decides the
question of liability of State.

Sovereign Functions:
Sovereign functions are those actions of the state for which it is not answerable
in any court of law. For instance, acts such as defence of the country, raising and
maintaining armed forces, making peace or war, foreign affairs, acquiring and
retaining territory, are functions which are indicative of external sovereignty and
are political in nature. Therefore, they are not amenable to jurisdiction of
ordinary civil court. The State is immune from being sued, as the jurisdiction of
the courts in such matters is impliedly barred.

The distinction between sovereign and non-sovereign functions was considered

at some length in N. Nagendra Rao v. State of AP. All the earlier Indian decisions
on the subject were referred to. The court enunciated the following legal
principles, in its judgment:

In the modern sense, the distinction between sovereign or non-sovereign power

thus does not exist. It all depends on the nature of the power and manner of its
exercise. Legislative supremacy under the Constitution arises out of
constitutional provisions. The legislature is free to legislate on topics and
subjects carved out for it. Similarly, the executive is free to implement and
administer the law. A law made by a legislature may be bad or may be ultra vires,
but, since it is an exercise of legislative power, a person affected by it may
challenge its validity but he cannot approach a court of law for negligence in
making the law. Nor can the Government, in exercise of its executive action, be
sued for its decision on political or policy matters. It is in public interest that for
acts performed by the State, either in its legislative or executive capacity, it
should not be answerable in torts. That would be illogical and impractical. It
would be in conflict with even modern notions of sovereignty.

Pre-Constitution Judicial Decisions relating to Vicarious Liability of State:

1. Peninsular & Oriental Steam Navigation Company v Secretary [1]:

A consideration of the pre-Constitution cases of the Government’s liability in

tort begins with the judgment of the Supreme Court of Calcutta in the case. P. &
O. Steam Navigation Co. v. Secretary of State. The principle of this case holds
that if any act was done in the exercise of sovereign functions, the East India
Company or the State would not be liable. It drew quite a clear distinction
between the sovereign and non-sovereign functions of the state.

As the facts of the case go, a servant of the plaintiff-company was proceeding
on a highway in Calcutta, driving a carriage which was drawn by a pair of horses
belonging to the plaintiff. He met with an accident, caused by negligence of the
servants of the Government. For the loss caused by the accident, the plaintiff
claimed damages against the Secretary of State for India.

2. Secretary of State v. Hari Bhanji [3]:

In this case, the Madras High Court held that State immunity was confined to
acts of State. In the P & O Case, the ruling did not go beyond acts of State, while
giving illustrations of situations where the immunity was available.

It was defined that Acts of State, are acts done in the exercise of sovereign
power, where the act complained of is professedly done under the sanction of
municipal law, and in exercise of powers conferred by law. The mere fact that it
is done by the sovereign powers and is not an act which could possibly be done
by a private individual does not oust the jurisdiction of the civil court.

The Madras judgment in Hari Bhanji holds that the Government may not be
liable for acts connected with public safety, even though they are not acts of
State. This view was re-iterated in Ross v. Secretary of State[4]. The Allahabad
High Court took a similar view in Kishanchand v. Secretary of State [5].

However, in Secretary of Secretary of State v. Cockraft[6], making or repairing

a military road was held to be a sovereign function and the Government was
held not liable, for the negligence of its servants in the stacking of gravel on a
road resulting in a carriage accident that injured the plaintiff.

44.Critically examine the development of pubic corporation in India and the

extent of their liability.

Pre-Independence Era

The British were not keen on developing public enterprises in India. For that
matter, there were very few domains that the British kept within the state. These
were:

• Defense Production – To ensure that it remains a closely guarded

secret.
• Railways – Since it helped in the extraction of resources on a large
scale.
• Post and Telegraph – Since it was important for functional and
strategic reasons.

The initial days of Public Enterprises in India

After independence, Prime Minister Jawahar Lal Nehru laid the foundations of
strong public enterprises with a focus on the goods-producing sectors in India.
The Prime Minister received support and inspiration from the renowned
statesmen – Josip Broz Tito (former President of Yugoslavia) and Abdel Gamal
Naseer (former President of Egypt). These three farsighted leaders were
instrumental in laying down foundations of public sector enterprises in their
respective countries.

In 1951, when we started building an Independent India, the total investment in

public enterprises was less than half a billion euros. Today, there are around 247
public enterprises with a cumulative investment of around 130 billion euros.

Also, in 1951 when the first five-year plan was launched, the government’s
investment in public enterprises was Rs.29 crore. This number rose exponentially
to Rs.3,93,057 crore as on 31 March 2006.

Another reason for the evolution of public enterprises in India is the

substantial contribution they make to the resources of the Central Government.
During 2004-05, public enterprises contributed around Rs.10,599 crore to the
central exchequer.

45.Write a note on Right to information act 2005.

Introduction:
The act is one of the most important acts which empowers ordinary citizens to
question the government and its working. This has been widely used by citizens
and media to uncover corruption, progress in government work, expenses
related information, etc.
All constitutional authorities, agencies, owned and controlled, also those
organisations which are substantially financed by the government comes under
the purview of the act. The act also mandates public authorities of union
government or state government, to provide timely response to the citizens’
request for information.
The act also imposes penalties if the authorities delay in responding to the
citizen in the stipulated time.
Objectives of the RTI Act

1. Empower citizens to question the government.

2. The act promotes transparency and accountability in the working of the
government.
 3. The act also helps in containing corruption in the government and work
for the people in a better way.
4. The act envisages building better-informed citizens who would keep
necessary vigil about the functioning of the government machinery.

Important provisions under the Right to Information Act, 2005

• Section 2(h): Public authorities mean all authorities and bodies under the
union government, state government or local bodies. The civil societies
that are substantially funded, directly or indirectly, by the public funds
also fall within the ambit of RTI.
• Section 4 1(b): Government has to maintain and proactively disclose
information.
• Section 6: Prescribes a simple procedure for securing information.
• Section 7: Prescribes a time frame for providing information(s) by PIOs.
• Section 8: Only minimum information exempted from disclosure.
• Section 8 (1) mentions exemptions against furnishing information under
the RTI Act.
• Section 8 (2) provides for disclosure of information exempted under the
Official Secrets Act, 1923 if the larger public interest is served.
• Section 19: Two-tier mechanism for appeal.
• Section 20: Provides penalties in case of failure to provide information on
time, incorrect, incomplete or misleading or distorted information.
• Section 23: Lower courts are barred from entertaining suits or
applications. However, the writ jurisdiction of the Supreme Court of
India and high courts under Articles 32 and 226 of the Constitution
remains unaffected.

BY

ANIL KUMAR K T LLB COACH