G. M. Wagh - Administrative Law - RLLC (2019)

ADMINISTRATIVE LAW
G. M. Wagh
2018
TABLE OF CONTENTS
I INTRODUCTION.......................................................................................................... 1
The Basics....................................................................................................................... 3
Definition of Administrative Law....................................................................................3
Kenneth Culp Davis...................................................................................................... 4
Sir Ivor Jennings........................................................................................................... 4
Albert Vernon Dicey...................................................................................................... 5
Prof. Sir William Wade...................................................................................................5
Jain and Jain................................................................................................................ 6
Dr. Upendra Baxi.......................................................................................................... 6
Conclusion.................................................................................................................... 6
Nature and Scope of Administrative Law........................................................................6
Reasons for Growth of Administrative Law....................................................................7
1. Radical Change in the Philosophy of Role of State......................................................8
2. Urbanization............................................................................................................. 8
3. To meet Emergency Situations..................................................................................8
4. Inadequacy of Judicial System..................................................................................8
5. Inadequacy of Legislative Process..............................................................................9
6. Scope for Experimentation........................................................................................9
7. Avoidance of Technicalities........................................................................................9
8. Preventive Mechanism...............................................................................................9
9. Effective Enforcement of Preventive Measures...........................................................9
Conclusion.................................................................................................................. 10
Constitutional Law and Administrative Law.................................................................10
Constitutional Law and Administrative Law Distinguished...........................................11
Droit Administratif....................................................................................................... 12
Doctrine of Separation of Powers..................................................................................13
Modern View of Separation of Powers..........................................................................14
Essential and Incidental Functions.........................................................................15
Doctrine of Checks and Balances............................................................................15
Doctrine of Separation of Powers in India....................................................................16
Rule of Law.................................................................................................................... 17
Three Principles of Rule of Law....................................................................................17
1. Supremacy of Law...............................................................................................18
2. Equality Before the Law......................................................................................18
3. Predominance of Legal Spirit..............................................................................18
Application of the Doctrine In England........................................................................19
Rule of Law Under the Constitution of India................................................................19
Kesavanda Bharati vs. State of Kerala......................................................................19
Maneka Gandhi vs. Union of India............................................................................19
Indira Nehru Gandhi vs. Raj Narain..........................................................................19
A. D. M. Jabalpur vs. Shivakant Shukla....................................................................19
4 Administrative Law
Classification of Functions of the Executive................................................................20

Legislative Functions of Administration.......................................................................21
Executive Functions of Administration........................................................................21
Purely Administrative Functions.............................................................................21
Quasi Legislative Functions.....................................................................................21
Quasi Judicial Functions........................................................................................22
Legislative Sanction...................................................................................................... 22
II. Delegated Legislation.............................................................................................. 23

Definition of Delegated Legislation...............................................................................25
Need for Delegated Legislation......................................................................................25
1. Pressure on the Legislature.....................................................................................25
2. Lack of Expertise on the Part of the Legislature.......................................................26
3. To Tackle Unforeseen Circumstances......................................................................26
4. Facility for Experimentation....................................................................................26
5. Maintenance of Secrecy...........................................................................................26
6. Administrative Nature of the Matter.........................................................................27
Constitutional Validity of Delegated Legislation..........................................................27
Essential Legislative Function.....................................................................................29
Rajnarain Singh vs. Chairman, Patna Administration Committee................................29
Hari Shankar Bagla vs. State of Madhya Pradesh....................................................29
Edward Mills vs. State of Ajmer...............................................................................30
Hamdard Dawakhana vs. Union of India.................................................................30
Jalan Trading Co. vs. Mill Mazdoor Sabha...............................................................30
H. R. Banthia vs. Union of India..............................................................................30
Types of Delegated Legislation.....................................................................................31
1. Skeleton Legislation................................................................................................ 31
Hari Shankar Bagla vs. Madhya Pradesh.................................................................31
2. Power of Inclusion and Exclusion............................................................................31
Edward Mills vs. State of Ajmer...............................................................................32
Hamdard Dawakhana vs. Union of India.................................................................32
3. Power of Modification of Statute..............................................................................32
(a) Harishankar Bagla Type of Cases........................................................................33
(b) Power of Inclusion and Exclusion.......................................................................33
(c) Delhi Laws Act Type of Cases..............................................................................33
(d) Power of Incorporation by Reference...................................................................33
(e) Power to Include Removal of Difficulty Clause (Henry VIII Clause).......................34
Jalan Trading Co. vs. Mill Mazdoor Sabha........................................................34
4. Power to Impose Tax............................................................................................... 35
(a) Delegation of Power to Exempt a Commodity from the Purview of Tax.................35
Oriental Weaving Mills vs. Union of India..........................................................35
(b) Delegation of Power to Bring a Commodity Within the Purview of Tax.................35
(c) Delegation of Power to Fix Rates of Tax...............................................................36
Table of Contents 5
(d) Delegation to a Representative Body...................................................................36

(e) Delegation to a Statutory Body...........................................................................36
J. R. G. Manufacturing Association vs. UOI.......................................................36
B. K. Krshna Bhat vs. State Karnataka.............................................................36
Control of Delegated Legislation...................................................................................37
1. Judicial Control...................................................................................................... 37
Substantive Ultra Vires................................................................................................38
1. The Parent Act is Ultra Vires the Constitution......................................................38
2. The Delegation is Ultra Vires the Constitution......................................................38
3. The Delegated Legislation is Ultra Vires the Constitution......................................39
Dwarka Prasad vs. State of U. P.......................................................................39
Himat Lal K. Shah vs. Commissioner of Police...................................................39
4. The Delegated Legislation is Ultra Vires the Parent Act........................................39
(a) Rules are in Excess of Delegation...................................................................40
Dwarka Nath vs. Municipal Corporation........................................................40
Ibrahim vs. RTA.......................................................................................... 40
(b) Rules Conflict with Parent Act........................................................................40
Ram Prasad vs. State..................................................................................40
D. T. U. vs. B. P. B. Hajelay..........................................................................41
State of Karnataka vs. H. Ganesh Kamath....................................................41
(c) Rules are Unreasonable, etc...........................................................................41
Mulchand vs. Mukund.................................................................................42
Trustees of Port of Madras vs. Aminchand....................................................42
Air India vs. Nargesh Mirza..........................................................................42
State of Maharashtra vs. Chandrabhan Tale.................................................42
Kruze vs. Johnson.......................................................................................42
(d) Rules are Mala Fide........................................................................................43
(e) Rules encroach upon common law rights of the citizens..................................43
Sophy Kelly vs. State of Maharashtra...........................................................43
(f) Rules Conflict with Some Other Act.................................................................43
H. S. Bagla vs. State of M. P.........................................................................44
Vague Rules............................................................................................................ 44
Vice Chancellor, M. D. University, Rohtak.........................................................44
Procedural Ultra Vires................................................................................................. 44
1. Drafting.............................................................................................................. 45
2. Pre-publication (Ante Natal Publication)...............................................................45
3. Consultation with Affected Interest......................................................................46
4. Post Publication (Post Natal Publication)..............................................................46
Re Panama Case.............................................................................................46
Harla vs. State of Rajasthan.............................................................................47
Raza Buland Sugar Mills vs. Rampur Municipality............................................47
Bangalore WCS Mills vs. Bangalore Corporation................................................47
Govindalal vs. A. P. M. C..................................................................................47
G. Narayana Reddy vs. State of A. P.................................................................48

Kishori Lal vs. State of U.P...............................................................................48
Effect of Rules Being Ultra Vires..................................................................................48
Bar Council of India vs. Surjeet Singh...........................................................................49
Attempts to Exclude Judicial Review...........................................................................49
Exclusion by Delegated Legislation Itself.....................................................................49
Exclusion by Parent Act.............................................................................................. 49
Chestor vs. Bateson................................................................................................ 49
I. Derivative Immunity.................................................................................................50
1. “As if Enacted” Clause.........................................................................................50
Institute of Patent vs. Lockwood.......................................................................51
Minister of Health vs. R ex. p. Yaffe..................................................................51
Chief Inspector of Mines vs. K. C. Thapar..........................................................51
2. Protection of Parent Act Under Art. 31-B.............................................................51
Prag Rice & Oil Mills vs. UoI.............................................................................52
I. R. Coelho vs. State of Tamil Nadu and Others................................................52
II. “Conclusive Evidence” Clause.................................................................................52
III. “Ganga” Clause...................................................................................................... 53
B. K. Srinivasan vs. State of Karnataka................................................................53
2. Legislative Control...................................................................................................53
1. Direct Control......................................................................................................... 54
(a) Direct General Control........................................................................................54
(b) Direct Special Control........................................................................................ 55
1. Laying with No Further Direction....................................................................55
2. Laying Subject to Negative Resolution.............................................................55
3. Laying Subject to Affirmative Resolution.........................................................55
4. Laying in Draft Form Subject to Negative Resolution.......................................55
5. Laying in Draft Form Subject to Affirmative Resolution....................................56
2. Indirect Control....................................................................................................... 56
Other Aspects of Delegated Legislation....................................................................57
Power to Make Rules cannot be Implied......................................................................57
Ahmedabad Urban Development Authority vs. Sharad Kumar ...................................57
Delay in Making Rules – No Writ of Mandamus............................................................57
Supreme Court Employees Welfare Association vs. UOI.............................................57
Power to Make Rules Includes Power to Amend or Repeal Rules..................................57
Retrospective Operation of Delegated Legislation.........................................................58
ITC Bhadrachalam Paper Boards vs. Mandal Revenue Officer ...................................58
B. S. Yadav vs. State of Haryana..............................................................................58
A. V. Nachane vs. UOI..............................................................................................58
Retrospective Rules Under Art. 309 of the Constitution...........................................58
B. S. Vadera vs. UoI............................................................................................58
B. S. Yadav vs. State of Haryana ........................................................................59
T. R. Kapoor vs. State of Haryana .......................................................................59
Table of Contents 7
Continuance of Rules After Repeal of Parent Act..........................................................59

Explanatory Notes....................................................................................................... 59
Tara Singh vs. State of Rajasthan.............................................................................59
K. Challaiah vs. Industrial Finance Corporation of India............................................59
Naga People’s Movement of Human Rights vs. UoI....................................................60
Parameshwar Prasad.............................................................................................. 60
Sub-delegation of Legislative Functions.......................................................................60
Ganapati Singhji vs. State of Ajmer...........................................................................60
Hari Shankar Bagla vs. State of Madhya Pradesh.....................................................61
Waiver of Rules........................................................................................................... 61
III. Quasi Legislation................................................................................................... 63

Quasi Legislation........................................................................................................... 65
Delegated Legislation and Quasi Legislation................................................................65
1. Nomenclature......................................................................................................... 66
Uttar Pradesh vs. Kishori Lal................................................................................66
A. Prabhakar Reddy vs. State of Karnataka..........................................................66
2. Source of Authority................................................................................................. 66
3. Procedural Requirements........................................................................................67
Delegated Legislation Treated as Quasi Legislation.....................................................67
Enforceability of Quasi Legislation...............................................................................68
Kumari Regina vs. A. E. H. School............................................................................68
J. R. Raghupathy vs. State of Andhra Pradesh..........................................................68
Raman and Raman vs. State of Madras....................................................................68
S. K. Agarwal vs. State............................................................................................ 68
Vidadala Harinadhababu........................................................................................ 68
Exceptions to Non-Enforceability of Quasi Legislation..................................................69
1. Breach of Provision of Statute.............................................................................69
Ellerman Lines vs. CIT.....................................................................................70
K. M. Shanmugam vs. SRVS Ltd.......................................................................70
2. Breach of Contract..............................................................................................70
3. Where Doctrine of Estoppel is Applicable.............................................................70
UoI vs. Indo-Afghan Agencies...........................................................................70
4. In Service Matters where Directions are Issued in Lieu of Rules...........................71
UoI vs. K. P. Joseph.........................................................................................71
UoI vs. Soma Sundaram...................................................................................71
5. Where Doctrine of Legitimate Expectation is Applicable.......................................71
Baleshwar Dass vs. State of Uttar Pradesh.......................................................72
6. Where Following or Not Following the Direction Amounts to Discrimination.........72
Mannalal Jain vs. State of Assam.....................................................................72
A. Perikaruppan vs. Tamil Nadu.......................................................................72
7. Directions are Inconsistent with Statute or Rules................................................72
V. T. Khanzode vs. RBI....................................................................................72
S. L. Sachdeva vs. UoI.....................................................................................73

Karnani Properties Ltd. vs. Calcutta Municipal Corporation................................73
8. Directions Coming in the Way of Statutory Powers..............................................73
N. P. & A. vs. UoI.............................................................................................73
9. Directions Supplementing Statutes or Rules........................................................73
Naga People’s Movement of Human Rights vs. UoI.............................................74
Parameshwar Prasad .....................................................................................74
State of Maharashtra vs. Jagannath.................................................................74
10. Directions Issued for Interpreting a Statute or Rules.........................................74
Director General of Posts vs B. Ravindran.........................................................74
11. Directions are Illogical, Irrational, Unfair or Unjust............................................74
State of Andhra Pradesh vs. U. S. V. Bararan....................................................74
12. Directions are Vague ........................................................................................74
13. Directions Affect Individual Rights.....................................................................75
N. K. Pankaja Kshan Nair vs. P. V. Jayaraj........................................................75
I. N. Saxena vs. State of M. P............................................................................75
14. Directions in Pursuance of Policy Matters..........................................................75
Home Secretary, UT of Chandigarh vs Darshuit Singh Grewal............................75
15. Directions in Respect of Exercise of Discretionary Powers..................................75
Anil Kumar Bhattacharya vs. UoI......................................................................76
16. Directions are Issued in Respect of Quasi Judicial Functions............................76
B. Rajagopala Naidu vs. State Transport Appellate Tribunal...............................76
Publication of Directions................................................................................................. 76
IV. Natural Justice...................................................................................................... 77

Natural Justice.............................................................................................................. 79
Applicability of Rules of Natural Justice......................................................................79
Rule Against Bias.......................................................................................................... 80
Personal Bias.............................................................................................................. 81
S. P. Kapoor vs. State of H. P....................................................................................81
APSRTC vs. Sathyanarayan Transport Pvt. Ltd..........................................................81
Manak Lal vs. Premchand........................................................................................81
A. K. Kraipak vs. Union of India................................................................................82
Ganga Bai Charities vs. CIT......................................................................................82
Fakruddin vs. Principal Custodian............................................................................82
R. Balaksrishna Pillai vs. State of Kerala..................................................................82
Dr. G. Sarana vs. University of Lucknow...................................................................82
Pecuniary Bias............................................................................................................ 82
Jeejeebhoy vs. Asstt. Collector, Thane......................................................................82
J. Mohapatra & Co. vs. State of Orissa......................................................................83
R vs. Mulvihill..........................................................................................................83
Bias as to Subject-matter............................................................................................83
R vs. Deal Justices ex p Curling................................................................................83
Sub-committee of Judicial Accountability vs. Union of India....................................83
Table of Contents 9
Pre-conceived Notion Bias...........................................................................................83

Franklin vs. Minister of Town and Country Planning (Stevenage Case).......................83
Departmental Bias...................................................................................................... 84
Krishna Bus Service vs. State of Haryana.................................................................84
Gullappally Nageswara Rao vs APRTC......................................................................84
Gullappally Nageswara Rao vs. APRTC (II Case)........................................................84
Hari vs. DCP............................................................................................................ 85
State of U. P. vs. R. S. Sodhi.....................................................................................85
Bias on Account of Obstinacy......................................................................................85
Conclusion.................................................................................................................. 86
Right of Fair Hearing.....................................................................................................86
1. Right to Notice........................................................................................................ 87
State of J&K vs. Haji Wali Mohammed...................................................................87
Joseph Vilangadan vs. Executive Engineer, PWD...................................................88
Appropriate Authority vs. Vijay Kumar...................................................................88
Ajit vs. G.M., BEST Undertaking............................................................................88
Shiv Sagar Tiwari vs. Union of India......................................................................88
Keshav Mills Co. Ltd. vs. Union of India.................................................................88
State of Karnataka vs. Mangalore University Non-teaching Employees’ Association..88
Union of India vs. Naredra Singh...........................................................................88
Consequences of Non-issuing of Notice....................................................................89
2. Right to Appearance................................................................................................89
3. Right to Know Adverse Evidence..............................................................................89
Dhakeshwari Cotton Mills Ltd. vs. CIT...................................................................89
4. Right to Present Case..............................................................................................89
Union of India vs. J. P. Mitter................................................................................90
Southern Painters vs. Fertilizers and Chemicals, Travancore Ltd.............................90
S. L. Kapoor vs. Jagamohan..................................................................................90
5. Right to Present Evidence........................................................................................90
Dhakeshwari Cotton Mills Ltd. vs. CIT...................................................................90
R. B. Shreeram Durga Prasad vs. Settlement Commission (IT & WT)........................90
N. M. T. Co-operative Society Ltd. vs. State of Rajasthan.........................................90
A. K. Roy vs. Union of India..................................................................................91
6. Right That Evidence Shall Not Be Collected At His Back..........................................91
Errington vs. Minister of Health.............................................................................91
Hira Nath Misra vs. Principal, Rajendra Medical College.........................................91
7. Right to Rebut Adverse Evidence.............................................................................92
(a) Right to Cross Examination................................................................................92
State of Kerala vs. Shaduli Grocery Dealer........................................................92
Kannungo & Co. vs. Collector of Customs.........................................................93
State of Jammu and Kashmir vs. Bakshi Gulam Mohammed..............................93
State of Maharashtra vs. Salem Hussain Khan..................................................93
S. C. Girotra vs. United Commercial Bank.........................................................93
(b) Right to Legal Representation (Right to Counsel).................................................94

Nandalal Bajaj vs. State of Punjab....................................................................94
A. K. Roy vs. Union of India.............................................................................94
M. H. Hoskot vs. State of Maharashtra..............................................................94
Khatri vs. State of Bihar...................................................................................94
Nandini Satpathy vs. P. L. Dani........................................................................95
8. Right to Report of Enquiry.......................................................................................95
One Who Decides Must Hear...................................................................................95
Institutional Hearing...............................................................................................95
Union of India vs. H. C. Goel................................................................................95
Kailash Chandar Asthana vs. State of U. P...........................................................96
Union of India vs. Mohd. Ramzan Khan...............................................................96
Electronic Corporation of India vs. B. Karunakar...................................................96
Suresh Koshy vs. University of Kerala.................................................................96
Keshav Mills Co. Ltd. vs. Union of India...............................................................96
Union of India vs. E. Bhashyam...........................................................................97
Local Government vs. Arlidge..............................................................................97
Failure to Supply Copy of Report.............................................................................97
Satyavir Singh vs. Union of India.........................................................................97
Sec. 44 of the Constitution (Forty-Second Amendment) Act, 1976............................98
Union of India vs. E. Bhashyan...........................................................................98
Premnath K. Sharma vs. Union of India................................................................98
9. Right to Speaking Order (Reasoned Decision)..........................................................98
M. J. Sivani vs. State of Karnataka......................................................................98
Implied Constitutional Perspective..........................................................................99
Anumathi Sadhakan vs. A. K. Chatterjee..............................................................99
Kishan Chand Arora vs. Commissioner of Police...................................................99
Implied Statutory Perspective..................................................................................99
S. N. Mukherjee vs. Union of India.......................................................................99
Mahabir Prasad Santosh Kumar vs. State of UP..................................................100
Bhagat Ram vs. State of Punjab.........................................................................100
M. P. Industries Ltd. vs. Union of India...............................................................100
Divisional Forest Officer vs. Madhusudhan Rao..................................................100
Bhagat Raja vs. UoI.......................................................................................... 100
Harinagar Sugar Mills Ltd. vs. Shyam Sundar Jhunjhunwala..............................100
Circumstances Rendering the Hearing Unfair............................................................100
Rule against Dictation...........................................................................................100
Mahadayal vs. CTO.......................................................................................... 101
Financial Incapacity to Attend Enquiry..................................................................101
Ghanshyamdas Shrivastava vs. State of M. P.....................................................101
Mumtaz Hussain Ansari vs. State of U. P............................................................101
Decision Post Haste.............................................................................................. 101
City Coroner vs. P. A. to Collector and Additional D. M........................................102
Table of Contents 11
Post-Decisional Hearing............................................................................................ 102

Maneka Gandhi vs. UoI..........................................................................................102
Swadeshi Cotton Mills vs. Union of India.................................................................102
K. I. Shephard vs. Union of India............................................................................103
Exceptions to Natural Justice.....................................................................................103
1. Emergency............................................................................................................ 103
2. Confidentiality.......................................................................................................104
Malak Singh vs. State of Punjab & Haryana........................................................104
3. Academic Matters..................................................................................................104
J. N. U. vs. B. S. Narwal.....................................................................................104
4. Impracticability..................................................................................................... 104
R. Radhakrishnan vs. Osmania University..........................................................104
West Bengal Electricity vs. CESC Limited............................................................105
5. Interim Preventive Actions.....................................................................................105
Abhay Kumar vs. K. Srinivasan..........................................................................105
6. Statutory Exceptions.............................................................................................106
7. Necessity............................................................................................................... 106
Sub-committee on Judicial Accountability vs. UoI.................................................106
Charan Lal Sahu vs. UoI (Bhopal Gas Disaster Case)...........................................106
8. Policy Matters....................................................................................................... 106
BALCO Employees’ Union vs. UoI.......................................................................106
9. Where Hearing is a Useless Formality....................................................................107
D. R. B. A. R. M. Educational Institution vs. E. A. T..............................................107
Punjab National Bank vs. Manjeet Singh.............................................................107
10. Legislative Functions...........................................................................................107
J. R. Vohra vs. Indian Export House...................................................................107
Panipat Woollen and General Mills Co. Ltd. vs. UoI..............................................108
11. Ministerial Functions.......................................................................................... 108
K. P. S. C. vs. B. M. Vijaya Shankar....................................................................108
12. Contractual Matters............................................................................................ 108
State of Gujrat vs. M. P. Shah Charitable Trust....................................................108
13. No Infringement of Rights....................................................................................108
State Bank of India vs. Girish Bihari...................................................................109
Andhra Steel Corporation vs. A. P. State Electricity Board....................................109
Effect of Violation of Natural Justice.........................................................................109
Canara Bank vs. Debasis Das............................................................................109
Kanwar Hari Bhushan Singh vs. Financial Commissioner, Simla..........................110
S. L. Kapoor vs. Jagmohan.................................................................................110
Sirsi Municipality vs. Ceceliakon Francis Tellies .................................................110
Krishenlal vs. State of J & K...............................................................................110
Nawabkhan vs. Gujrat.......................................................................................110
Right of Third Parties..................................................................................................110
Antonio S. C. Pareira vs. Ricardino Naronha........................................................111
V. QUASI JUDICIAL FUNCTIONS................................................................................113

Meaning and Definition...............................................................................................115
Characteristics of Quasi-judicial Functions................................................................115
1. Lis Inter Partes.......................................................................................................115
Shankarlal vs. Shankarlal..................................................................................115
2. Provision for Appeal.............................................................................................. 116
3. Powers of Court.....................................................................................................116
4. Adverse Civil Consequences..................................................................................116
5. Duty to Act Judicially............................................................................................116
Test of Quasi Judicial Functions (Administrative vs. Quasi Judicial Functions)......116
Existence of Lis......................................................................................................... 116
Lis........................................................................................................................ 117
Quasi Lis.............................................................................................................. 117
Duty to Act Judicially................................................................................................117
Shivji Nathubhai vs. UOI.........................................................................................118
Duty to Act Fairly..................................................................................................118
Distinction Between Judicial and Quasi Judicial Functions......................................119
Need for Quasi Judicial Functions (Advantages of Quasi Judicial Functions)..................120
1. Burden on Courts Resulting in Delay....................................................................121
Mahabir Jute Mills vs. Shibban Lal Saxena.........................................................121
2. Specialisation........................................................................................................ 121
3. Expertise............................................................................................................... 121
4. Informality............................................................................................................ 121
5. Speedy Adjudication..............................................................................................122
6. Inexpensive........................................................................................................... 122
7. Preventive Rather than Remedial...........................................................................122
8. Policy May Be Applied (Functional Approach).........................................................123
9. General Rather than Special Treatment to Cases...................................................123
10. Socialisation of Law.............................................................................................123
Problems Related to Quasi-judicial Functions............................................................124
1. Number and Complexity........................................................................................124
2. Varieties of Procedures..........................................................................................124
3. Unsystematic System of Appeals...........................................................................125
4. Invisibility of Decisions..........................................................................................125
5. Unpredictability of Decisions.................................................................................125
6. Anonymity of Decisions.........................................................................................126
7. Combination of Functions.....................................................................................126
8. ‘No Evidence’ Rule.................................................................................................126
State of Haryana vs. Rattan Singh......................................................................126
Nand Kishore Prasad vs. State of Bihar..............................................................127
9. Official Perspective................................................................................................ 127
10. Official Bias......................................................................................................... 128

Gullapalli Nageshwara Rao vs. A.P.S.R.T.C.........................................................128
Gullapalli Nageshwara Rao vs. A.P.S.R.T.C. (II Case)...........................................128
11. Plea Bargaining................................................................................................... 128
12. Political Interference............................................................................................128
13. Off the Record Consultation................................................................................128
14. Reasoned Decision.............................................................................................. 129
Tara Chand vs. Municipal Corporation Delhi........................................................129
15. Legal Representation...........................................................................................129
Control of Quasi Judicial Authorities.........................................................................129
Directions to Quasi Judicial Authorities....................................................................129
Enquiry Against Quasi Judicial Authorities...............................................................129
Union of India vs. K. K. Dhawan............................................................................130
VI. PURELY ADMINISTRATIVE FUNCTIONS................................................................131

Administrative Functions........................................................................................... 133
Classification of Administrative Functions................................................................134
Ministerial Functions................................................................................................ 134
Discretionary Functions............................................................................................134
Judicial Control of Discretionary Functions..............................................................135
Stages at Which Judicial Control Is Applied...............................................................135
Judicial Control at the Stage of Conferment of Powers...........................................135
Conferment of Discretion and Art. 14................................................................135
Ram Krishna Dalmia vs. Justice Tendolkar ....................................................135
West Bengal vs. Anwar Ali Sarkar..................................................................135
Re the Special Courts Bill, 1978.....................................................................136
Satwant Singh vs. Assistant Passport Officer..................................................136
State of Punjab vs. Khem Chand....................................................................136
Differential Procedure....................................................................................136
Manohar Lal vs. State of Maharashtra............................................................136
Conferment of Discretion and Fundamental Freedoms......................................137
Reasonable Restrictions Under Arts. 19(2)-(6)...............................................137
Art. 19(1)(a) Freedom of Speech and Expression............................................137
R. M. Sheshadri vs. DM, Tanjore..............................................................137
Art. 19(1)(c) Freedom to Form Associations or Unions....................................137
State of Madras vs. V. G. Row.................................................................137
Virendra vs. State of Punjab....................................................................137
Art. 19(1)(d) Freedom to Move Freely Throughout the Territory of India.........138
State of Bihar vs. K. K. Misra..................................................................138
Art. 19(1)(e) Freedom to Reside and Settle in Any Part of India......................138
Ebrahim Vazir vs. State of Bombay..........................................................138
Art 19(1)(f) Freedom to Property....................................................................138
State of Maharashtra vs. Kamal Durgule..................................................138
Art 19(1)(g) Freedom of Trade and Occupation...............................................138

Dwarka Prasad vs. State of U. P..............................................................138
Harakchand vs. UOI...............................................................................138
Judicial Control at the Stage of Exercise of Powers................................................138
1. Failure to use Discretion...............................................................................139
(a) Acting Mechanically.................................................................................139
(b) Abdication of Discretion...........................................................................139
Sahni Silk Mills vs. E.S.I. Corporation......................................................140
(c) Acting Under Dictation.............................................................................140
Purtabpore Co. Ltd. vs. Cane Commissioner, Bihar...................................140
Commissioner of Police vs. Gordhandas Bhanji........................................141
Barium Chemicals vs. Company Law Board.............................................141
(d) Imposing Fetters on Discretion.................................................................141
Gell vs. Tej Noora...................................................................................141
(e) Exercise at Wrong Time............................................................................141
(f) Powers Coupled with Duty........................................................................142
Haridas Narain vs. ITO...........................................................................142
2. Wrong Exercise of Discretion ........................................................................142
(a) Exercise of Discretion in a Mala Fide Manner...........................................143
G. Sadanandan vs State of Kerala...........................................................143
Pratap Singh vs. State of Punjab..............................................................143
Rowjee vs. State of A. P..........................................................................143
Municipal Council of Sidney vs. Campbell................................................144
(b) Unreasonable Exercise of Discretion........................................................144
Sheo Nath vs. Appellate Assistant Commissioner.....................................144
Wednesbury Unreasonableness.............................................................145
Associated Provincial Picture Houses vs. Wednesbury Corporation......145
(c) Improper Exercise of Discretion................................................................147
Berium Chemicals vs. Company Law Board.............................................147
Ram Manohar Lohia vs. State of Bihar.....................................................147
Ashadevi vs. K. Shivraj...........................................................................148
Rampur Distillary Company vs. Company Law Board...............................148
State of Maharashtra vs. Babulal Takka More..........................................148
Pyare Lal Sharma vs. J & K Industries Ltd...............................................149
(d) Exercise of Discretion for an Improper Purpose........................................149
Nalini Mohan vs. Ditrict Magistrate..........................................................149
Bangalore Medical Trust vs. Muddappa...................................................149
Hukam Chand vs Union of India..............................................................149
(e) Colourable Exercise of Discretion.............................................................149
D. C. Wadhat vs. State of Bihar...............................................................150
(f) Non-compliance of Procedural Requirements.............................................150
(g) Exercise of Discretion in Violation of Natural Justice................................150
The Patents Act, 1970............................................................................151
(h) Exercise of Discretion Without Jurisdiction..............................................151

(i) Exercise of Discretion in Excess of Jurisdiction.........................................151
G. E. S. Corporation vs. Worker’s Union...................................................151
VII. STATE LIABILITY................................................................................................ 153

Liability of State under Constitution..........................................................................155
Contractual Liability................................................................................................... 155
Union of India vs. A. L. Ralia Ram...............................................................................157
State of Bihar vs Karamchand Thaper & Brothers Ltd..................................................157
New Marine Construction Company vs. Government of India........................................158
State of U. P. vs. Murarilal & Brothers.........................................................................158
Tortuous Liability.......................................................................................................... 158
Pre Constitutional Decisions......................................................................................159
Peninsular & Oriental Steam Navigation Co. vs. Secretary of State for India..............159
Nobin Chander Dey vs. Secretary of State...............................................................160
Secretary of State vs. Hari Bhanji...........................................................................160
Post Constitutional Decisions....................................................................................160
State of Rajasthan vs. Mst. Vidyawati.....................................................................160
State of Bihar vs. Abdul Majid................................................................................161
Kasturi Lal Ralia Ram vs. State of U. P....................................................................161
Satyawati vs. Union of India...................................................................................162
Union of India vs. Smt. Jasso..................................................................................162
Union of India vs. Sugrabai....................................................................................162
Pushpa Thakur vs. UoI...........................................................................................162
Sovereign and Non-sovereign Functions Distinguished (N. Nagendra Rao vs. AP)....162
Analysis of Judgement in Nagendra Rao Case........................................................163
VIII. JUDICIAL REVIEW............................................................................................. 165

Introduction.................................................................................................................. 167
Public Law Review and Private Law Review................................................................167
Public Law Review......................................................................................................... 167
Judicial Review and Appeal.......................................................................................167
Doctrine of Legitimate Expectation............................................................................168
State of Kerala vs. K. G. Madhavan Pillai................................................................168
Scheduled Caste & Weaker Section Welfare Association vs. State of Karnataka........168
Navjyoti Co-operative Housing Society vs. UoI..........................................................168
Union of India vs. Hindustan Development Corporation............................................169
State of West Bengal vs. Niranjan Singh..................................................................169
Food Corporation of India vs. Kamadhenu Cattle Feed Industries.............................169
Madras City wine Merchants’ Association vs. Tamil Nadu........................................169
National Building Contruction Co. vs. S. Raghunathan.............................................170
Attorney General for New South Wales vs. Quin .....................................................170
Punjab Communications Ltd. vs. UoI.......................................................................170
Doctrine of Public Accountability...............................................................................170

A. G. of Hong Kong vs. Reid...................................................................................171
D. D. A. vs. Skipper Construction Co.......................................................................172
J.M.M. Bribery Case.............................................................................................. 172
Doctrine of Proportionality.........................................................................................172
Hind Construction vs. Workmen..............................................................................173
Ranjit Thakur vs. UoI............................................................................................. 173
Procedural Aspects........................................................................................................ 173
Doctrine of Standing................................................................................................. 173
Locus Standi ........................................................................................................ 173
Exceptions to the Rule of Locus Standi..................................................................174
Class Actions........................................................................................................ 174
Public Interest Litigation.......................................................................................175
1. Class Standing..............................................................................................175
Kalyan Singh vs. State of Punjab ..............................................................175
2. Public Injuries Standing................................................................................175
3. Public Duties Standing.................................................................................176
4. Public Concern Standing...............................................................................176
Res Judicata.............................................................................................................. 176
Sharma vs. Krishna Sinha......................................................................................176
Amalgamated Coalfields vs. Janapada Sabha, Chhindwara.....................................177
Constructive Res Judicata.....................................................................................177
Lallubhai vs. Union of India ..........................................................................178
Surguja Transport Service vs. S. T. A. Tribunal, Gwalior ..................................179
Jurisdiction.............................................................................................................. 179
Jurisdiction of Supreme Court under arts. 32 and 136..........................................179
Jurisdiction of High Courts under arts. 226 and 227.............................................179
Delay and Latches............................................................................................ 180
Alternative Remedy...........................................................................................180
Exclusion of Jurisdiction (Ouster Clause)..............................................................181
S. P. Sampath vs. UoI.....................................................................................182
L. Chandra Kumar vs. UoI..............................................................................182
Violation of Procedural Norms...................................................................................182
State Bank of Patiala & Others vs. S. K. Sharma......................................................182
Grounds of Judicial Review........................................................................................... 183
1. Illegality................................................................................................................ 183
Ultra Vires............................................................................................................. 183
Errors of Law........................................................................................................ 183
2. Irrationality........................................................................................................... 184
Wednesbury Test.................................................................................................. 184
Procedural Impropriety............................................................................................. 185
Writs............................................................................................................................. 185
1. Habeas Corpus...................................................................................................... 185
Kanu Sanyal vs. District Magistrate....................................................................186
2. Writ of Mandamus................................................................................................. 187
1. Public or Common Law Duty.............................................................................187
Guruswamy vs. State of Mysore.....................................................................187
Lotus Hotel vs. Gujarat State Financial Corporation.........................................187
2. Absolute Duty .................................................................................................. 188
3. Specific Demand and Refusal............................................................................188
Naubat Rai vs. Union of India.........................................................................188
Venugopal vs. Commissioner, Vijayawada Municipality...................................188
4. Clear Right to Enforce the Duty.........................................................................188
5. Duty Should Subsist Till the Date of Petition.....................................................188
6. The Right Should Belong to the Petitioner..........................................................189
3. Writ of Certiorari and Writ of Prohibition...............................................................189
1. Lack of Jurisdiction.......................................................................................... 189
2. Excess of Jurisdiction.......................................................................................190
J. K. Choudhari vs. Datta Gupta.....................................................................190
3. Abuse of Jurisdiction........................................................................................190
4. Violation of Natural Justice...............................................................................190
1. Rule Against Bias .........................................................................................190
2. Rule of Fair Hearing .....................................................................................190
5. Error Apparent on the Face of the Record..........................................................190
6. Fraud............................................................................................................... 190
4. Writ of Quo Warranto.............................................................................................191
1. The Office Must be a Public Office.....................................................................191
2. The Office Must be Substantive in Nature..........................................................191
3. The Person Must Have Occupied the Office........................................................191
4. There Must Be Contravention of Law.................................................................191
Private Law Review........................................................................................................ 192
Injunction................................................................................................................. 193
Mandatory Injunction........................................................................................... 193
Prohibitory Injunction...........................................................................................194
Temporary Injunction........................................................................................... 194
Writ of Mandamus Compared with Injunction...................................................195
Declaration............................................................................................................... 196
Bai Shri Vaktuba vs. Thakore.................................................................................197
Damages................................................................................................................... 198
Nilabati Behera vs. State of Orissa..........................................................................198
IX. GOVERNMENT PRIVILEGES.................................................................................199

Privileges and Immunities Claimed by Governments in Suits.........................................201
1. Privilege of Statutory Notice...................................................................................201
State of Orissa vs. Madan Gopal........................................................................201
2. Privilege to Withhold Documents:..........................................................................202
3. Immunity from Statute Operation..........................................................................203
Province of Bombay vs. Municipal Corporation of Bombay...................................203
Director of Rationing and Distribution vs. Calcutta Corporation.............................203
Supdt & Legal Remembrancer to State of WB. vs. Corporation of Calcutta.............203
Union of India vs. Jubbi.....................................................................................203
4. Immunity from Estoppel........................................................................................204
Amar Singh vs. State of Rajsthan.......................................................................204
C. Shankarnarayanan vs. State of Kerala...........................................................204
State of Kerala vs. Gwalior Rayons and Silk Manufacturing Company..................205
Union of India vs. Indo-Afgan Agrarian Ltd.........................................................205
Century Spinning and Manufacturing Company vs. Ulhasnagar Municipality........205
Motilal Padampat Sugar Mills vs. State of U. P.....................................................205
X. SERVICES UNDER THE STATE..............................................................................207

Recruitment................................................................................................................ 209
Article 309................................................................................................................... 209
Ram Avtar vs. State of U. P.....................................................................................210
Relation of 309 with 246 read with VII Schedule.......................................................210
R. T. Rangachari vs. Secretary of State....................................................................211
D. S. Garewal vs. State of Punjab and Anr..............................................................211
Doctrine of Pleasure.................................................................................................... 211
Clause (1): Office during the Pleasure of the State.....................................................213
Whether the Pleasure may be Fettered by Legislation?..........................................214
Whether the Pleasure of the Government may be Fettered by Contract?................214
Satish Anand vs. Union of India........................................................................214
Whether the Pleasure under Art. 310(1) may be Delegated?...................................215
Clause (2): ‘Civil Post’................................................................................................ 215
Restrictions on the Doctrine of Pleasure [Article 311]...............................................216
Application of Art. 311.............................................................................................. 217
Termination of Service Amounting to Punishment.................................................217
‘Civil Post’............................................................................................................. 218
State of U. P. vs. A. N. Singh...........................................................................218
‘Dismissal’ and ‘Removal’......................................................................................218
Temporary Employees and Probationers................................................................218
Compulsory Retirement........................................................................................ 219
Exceptions to Article 311........................................................................................... 220
No Removal by Subordinate Authority...................................................................220
Mahesh vs. State of U. P....................................................................................220
Reasonable Opportunity of Being Heard................................................................221

Managing Director, ECIL vs. B. Karunakar..........................................................221
Exclusion of Opportunity to be Heard....................................................................221
Divisional Personal Officer, Southern Railway vs. T. R. Chellappan......................222
Union of India vs. Tulshiram Patel......................................................................222
Exceptions to Art. 311(2)...........................................................................................222
Conviction on a Criminal Charge...........................................................................222
Impracticability.....................................................................................................223
Reasons of Security.............................................................................................. 223
XI. STATUTORY CORPORATIONS..............................................................................225

Growth of Public Sector in India.................................................................................227
Reasons for Increasing State Participation................................................................227
1. Low Savings and Investment.................................................................................227
2. Establishment of Large Scale or Heavy Industries..................................................228
3. Concentration of Economic Power..........................................................................228
4. Profit Motive Criterion........................................................................................... 228
5. Uneven Distribution of Resources..........................................................................228
Objectives of Public Sector......................................................................................... 229
Features of Statutory Corporations............................................................................230
1. Creature of a Statute.............................................................................................230
2. A Corporate Body.................................................................................................. 231
Not a Citizen......................................................................................................... 231
R. C. Cooper vs. UoI...........................................................................................231
3. Owned by State..................................................................................................... 231
Corporation a State under art. 12 of the Constitution............................................231
Not Government....................................................................................................232
4. Answerable to Legislature......................................................................................232
5. Own Staffing System.............................................................................................232
Status of Employees..............................................................................................233
Protection of art. 311 Not Applicable.................................................................233
Jaswant Singh vs. Union of India ..................................................................233
Not an Office of Profit........................................................................................233
Services of the Employee are Contractual..........................................................234
Not a Public Servant.........................................................................................234
S. S. Dhanoa vs. Municipal Corporation..........................................................234
Not a Civil Servant............................................................................................235
Benefit of Industrial Laws Available...................................................................235
6. Financial Independence........................................................................................ 235
Merits of Statutory Corporations................................................................................235
Limitations of Statutory Corporations.......................................................................236
Classification of Statutory Corporations....................................................................237

1. Industrial Corporations.........................................................................................237
2. Commercial Corporations......................................................................................238
3. Financial Corporations..........................................................................................238
4. Commodity Corporations.......................................................................................238
5. Social and Service Providing Corporations.............................................................238
6. Developmental Corporations..................................................................................238
Government Company and Statutory Corporation.....................................................239
Formation................................................................................................................. 239
Management............................................................................................................. 239
Capital...................................................................................................................... 239
Scope for Private Participation...................................................................................239
Operational Autonomy.............................................................................................. 240
Flexibility.................................................................................................................. 240
Accountability........................................................................................................... 240
Control of Statutory Corporations..............................................................................240
1. Government Control..............................................................................................241
1. Power of Nomination, Appointment Removal and Dissolution.............................241
2. Power to Issue Directions..................................................................................241
3. Power to Control Finances.................................................................................242
4. Power to Institute Enquiries..............................................................................242
2. Legislative Control.................................................................................................242
Control Through Committees................................................................................243
Committee on Public Undertakings...................................................................244
Constitution of the Committee......................................................................244
Functions of the Committee..........................................................................244
Judicial Control........................................................................................................ 245
Public Control........................................................................................................... 245
(a) Control through Mass Media............................................................................245
(b) Control through Consumer Councils................................................................246
Working Groups............................................................................................... 246
(c) Control through Consumer Forums..................................................................246
(d) Control by Way of Interest Representation or Consultation...............................247
Liabilities of Statutory Corporations..........................................................................247
Contractual Liability..................................................................................................248
Lotus Hotel vs. Gujrat State Finance Corporation.....................................................248
Kartik Enterprise vs. Orissa State Electricity Board.................................................248
Tortuous Liability...................................................................................................... 249
M. C. Mehta vs. Union of India (Oleum Gas Leakage Case)......................................249
Tax Liability.............................................................................................................. 249
Criminal Liability...................................................................................................... 250
Public Law Liability................................................................................................... 250
XII. MALADMINISTRATION........................................................................................251
Measures to Tackle with Maladministration...................................................................253
Ombudsman.................................................................................................................. 254
Ombusman in India................................................................................................... 254
Lokpal................................................................................................................... 254
Lokayukta............................................................................................................. 255
Karnataka Lokayukta.................................................................................................... 255
Karnataka Lokayukta Act, 1984................................................................................255
Long Title.............................................................................................................. 257
Preamble.............................................................................................................. 257
Appointment of Lokayukta and Upalokayukta.......................................................257
Conditions of Service.............................................................................................258
Tenure of Office................................................................................................ 258
Matters which may be Investigated by the Lokayukta............................................259
Matters Not Subject to Investigation......................................................................259
Procedure for Making Complainant and Investigation............................................260
Reports of Lokayukta........................................................................................261
Vacating Office Under Direction by Lokayukta...................................................262
Initiation of Prosecution....................................................................................263
Secrecy of Information......................................................................................263
Lokpal: Lessons from Karnataka....................................................................................263
Impact on Performance............................................................................................. 264
Petty Corruption....................................................................................................... 264
What the Data Tell Us............................................................................................... 265
‘Size of Economy’ Factor............................................................................................266
The Lokpal and Lokayuktas Act, 2013...........................................................................266
Central Vigilance Commission (CVC)..............................................................................267
Role of CVC............................................................................................................... 268
Appointment............................................................................................................. 268
Removal of CVC........................................................................................................ 268
Limitations of CVC.................................................................................................... 269
COURSE-IV: ADMINISTRATIVE LAW
OBJECTIVES
Administrative Law is basically concerned with triple function of administrative

authorities, their constitutional limits and statutory limitations, the procedure to
be followed in the exercise of their functions and the necessity to study in depth
relevant remedies. Constitutional or otherwise in case of administrative arrogance
and consequent abuse of power.
COURSE CONTENT
Unit I – Introduction
Definition of Administrative Law; Nature and Scope – The Impact and Implications of the
Doctrine of Separation and the Rule of Law on Administrative Law – Classification of
Administrative Action; the Necessity.
Unit II – Legislative Power of Administration

Doctrine of Vice of Excessive Delegation – Judicial and Parliamentary Control Over
Delegated Legislation – Advantages and Disadvantages of Delegated Legislation –
Exclusion of Judicial Review of Delegated Legislation.
Unit III – Judicial Power of Administration

Tests to Determines When an Administrative Authority Required to Act Judicially –
Doctrine of Bias – Doctrine of Audi Altrem Partem – Reasoned Decision – Exceptions to
Natural Justice – Effect of Non-Compliance with Rules of Natural Justice – Grounds on
Which Decision of Quasi-Judicial Authority can be Flagged Before Supreme Court.
Unit IV – Administrative Discretion

Grant and exercise of discretion – Judicial review of Administrative Discretion
Unit V – Control of Administrative Action

Judicial Control – Public Law and Private Law Remedies; Distinction – Writs – Theory,
Practice and Procedure – Ouster Clause
Liabilities of the State in the Province of Contract and Tort – Constitutional Tort –
Doctrine of Promissory Estoppel – Doctrine of Legitimate Expectation – Doctrine of
Proportionality.
UNIT VI – Corporates and Public Undertakings

Control of Statutory Corporations and Public Undertakings – Administrative Deviance –
Corruption and Maladministration – Control Mechanism – Ombudsman in India (Lokpal
and Lokayukta) – Central Vigilance Commission – Parliamentary Committees –
Commission of Enquiry
Prescribed Books
1. M. P. Jain & S. N. Jain, Principles of Administrative Law, latest edition
Reference Books
1. Wade, Administrative Law, latest edition
2. S. P. Sathe, Administrative Law, latest edition
3. I. P. Massey, Administrative Law, latest edition
CHAPTER I
INTRODUCTION
• Definition (Description) of Administrative Law
• Nature and Scope of Administrative Law
• Reasons for Growth of Administrative Law
• Sources of Administrative Law
• Rule of Law
• Droit Administratif
• Doctrine of Separation of Powers
• Classification of Functions of the Executive
THE BASICS
A person is a legal entity having rights and duties. State has rights and duties in
law. This means that State is a person in law. In case of State, we use terms
powers and functions instead of rights and duties.
Like any other artificial person, State cannot exercise these powers and functions
by itself, and needs human agency to exercise these powers and functions. This
human agency is the Government 1. The powers and functions of State are
delegated to the Government through Constitution.
Thus, Constitution defines the powers and functions of the Government and their
limits. As per the rules of law of agency, Government has to act within the scope of
this agency. If Government exceeds the powers and functions delegated to it by
State through Constitution, such exercise of powers becomes ultra vires and is
termed unconstitutional and is liable to be set aside.
Administrative Law deals with complaints respecting Government action that

adversely affects an individual. Thus, Administrative Law involves determining the
legality of government actions.
There is a two-fold analysis:
1. the legality of the specific law itself, and
2. the legality of particular acts purportedly authorized by the specific law.
DEFINITION OF ADMINISTRATIVE LAW
Generally speaking, Administrative Law is the branch of law governing the creation
and operation of administrative agencies and the laws and principles governing
the administration.
Most of the States that follow the principles of common law have developed
grounds and procedures for judicial review which form the main part of
Administrative Law.
In the recent past, there is a significant growth of state activities, as a result of

which there is a fast growth in the principles and components of Administrative
Law. Therefore, it is difficult to define it.
1 The term ‘government’ is used in two different senses. One, the wider sense, includes
all the three organs of state, viz., legislature, executive and judiciary, while the second,
narrower sense, includes only the executive organ of the state.
Dr F. J. Port who published the first book bearing the title Administrative Law in
England in 1929 did not venture to define the term. He simply attempted to
describe administrative law as follows:
“Administrative Law is made up of all these legal rules-either formally expressed by

statutes or implied in the prerogative-which have as their ultimate object the
fulfilment of public law. It touches, first the legislature, in that the formally
expressed rules are usually laid down by that body; it touches judiciary, in that
(a) there are rules which govern the judicial action that may be brought by or
against administrative persons,
(b) administrative bodies are sometimes permitted to exercise judicial powers;
(c) it is of course essentially concerned with the practical application of the Law.”
However, some jurists have made attempts to define it. But each definition has its
own merits and limitations. Some of the noteworthy definitions are discussed
below.
KENNETH CULP DAVIS
K. C. Davis defines Administrative Law as
“the law concerning the powers and procedures of administrative agencies,

including especially the law governing judicial review of administrative action.”
The merit of this definition is its emphasis on procedure followed by administrative

agencies in exercising their powers. But this definition does not consider the other
functions of the administration which are neither quasi judicial functions nor rule-
making functions.
Davis, excludes judiciary and legislature from the definition of an administrative

agency and holds that an administrative agency can affect the rights of private
parties either through administrative adjudication or rule-making.
SIR IVOR JENNINGS
The most widely accepted definition is given by Sir Ivor Jennings. According to Sir
Ivor Jennings,
“Administrative Law is the law relating to the administrative authorities”.

Introduction 5
This definition is too simple and has two significant limitations:
First, it is a very wide definition and can be interpreted to mean that the law which
determines the powers and functions of administrative agencies deals with both
substantive and procedural aspects of the same.
Second, it ignores the distinction between Constitutional Law and Administrative

Law. Constitutional Law deals with the grant of the powers and functions to
administrative agencies. Administrative Law deals with the exercise of these
powers and provides for remedies to the individuals who are aggrieved by the non-
use or abuse of these powers by the administrative agencies.
ALBERT VERNON DICEY
According to Dicey,
1. Administrative Law relates to that portion of a nation’s legal system which

determines the legal status and liabilities of all State officials.
2. It defines the rights and liabilities of private individuals in their dealings with
public officials; and
3. It specifies the procedure by which those rights and liabilities are enforced.
PROF. SIR WILLIAM WADE
Wade opined that any attempt to define administrative law will create a number of
difficulties. But if the powers and functions of state are classified as legislative,
administrative and judicial, then administrative law may be said to be the “law
which concerns administrative authorities as against the others”.
This definition is essentially same as the definition given by Sir Ivor Jennings and
hence suffers from the same limitations. It is not only very wide, it ignores the
distinction between constitutional law and administrative law, it is dependant on
an equally difficult task of distinguishing between legislative, administrative and
judicial functions of the State which are not watertight compartments.
Further, the definition emphasises judicial control of administrative functions and

judicial remedies against the abuse of these functions. It ignores the other controls
such as legislative control of administrative actions and other remedies such as
administrative remedies.
JAIN AND JAIN
According Jain and Jain administrative law deals with the structure, powers and
functions of the organs of administration, the limits of their powers, the methods
and procedures followed by them in exercising their powers and functions, the
methods by which their powers are controlled including the legal remedies
available to a person against them when his rights are infringed by their operation.
This definition identifies the following four main aspects of administrative law.
1. The constitution, powers and functions of administrative agencies.
2. The limits of those powers.
3. Procedures to be followed by the administrative agencies in exercising those

powers.
4. Control of the administrative agencies by judicial and other means, and the
remedies available to the aggrieved parties.
DR. UPENDRA BAXI
Upendra Bakshi has defined Administrative Law as “that portion of law which
controls the abuse of powers by the administrative authorities so as to protect the
rights of individuals.”
CONCLUSION
On an analysis of the above definitions, it may be submitted that there is no

comprehensive definition of administrative law till today. In can be concluded that
administrative law is that portion of law which determines the organization,
powers and duties of administrative authorities, administrative agencies, quasi –
administrative authorities and the law that governs the judicial review of
administrative activities.
NATURE AND SCOPE OF ADMINISTRATIVE LAW
Administrative Law is the body of law that governs the activities of administrative
agencies of government. Action of a government agency can include rule-making,
adjudication, or the enforcement of a specific regulatory agenda.
Introduction 7
Administrative law is considered a branch of public law. As a body of law,

administrative law deals with the decision-making of administrative units of
government (e.g., tribunals, boards or commissions) that are part of a national
regulatory scheme in such areas as police law, international trade, manufacturing,
the environment, taxation, broadcasting, immigration and transport.
Administrative Law expanded greatly during the twentieth century, as legislative

bodies worldwide created more government agencies to regulate the increasingly
complex social, economic and political spheres of human interaction.
Taxation decisions are the decisions based on administrative law that are most
often contested in courts. Civil Law countries often have specialized courts,
administrative courts, that review these decisions.
REASONS FOR GROWTH OF ADMINISTRATIVE LAW
Administrative law is considered as an intensive form of government. It deals with

the pathology of functions. The functions that are discharged by the
administrative authorities differ from time to time depending upon the changes in
socio-economic conditions in any nation.
The following factors are responsible for the rapid growth and development of
Administrative Law:
1. Radical change in the philosophy of role of State;
2. Urbanization;
3. To meet Emergency Situations;
4. Inadequacy of Judicial System;
5. Inadequacy of Legislative Process;
6. Scope for Experimentation;
7. Avoidance of Technicalities;
8. Preventive Mechanism; and
9. Effective Enforcement of Preventive Measures

1. RADICAL CHANGE IN THE PHILOSOPHY OF ROLE OF STATE
There is a radical change in the philosophy as to the role played by the State. The
negative policy of maintaining ‘law and order’ and of ‘laissez faire’ is given up. The
State has not confined its scope to the traditional and minimum functions of
defence and administration of justice, but has adopted the positive policy and as a
welfare State has undertaken to perform varied functions.
2. URBANIZATION
Due to the Industrial Revolution in England and other countries and due to the
emergence of the factory system in our country, people migrated from the
countryside to the urban areas in search of employment in factories and large
scale industries. As a result of which there arose a need for increase in providing
housing, roads, parks, effective drainage system etc. Legislations were enacted to
provide all these basic facilities and accordingly administrative authorities were
required to make rules and regulations, frame schemes for effective infrastructure
and facilities which ultimately lead to the growth of administrative law.
3. TO MEET EMERGENCY SITUATIONS
Enacting legislations, getting assent from the President is all a lengthy process,
whereas it is very easy and quick to frame schemes and rules for meeting any
emergency situations that arise in a locality. Due to the flexibility of making the
rules, obviously there is a constant growth of administrative law making in the
country.
4. INADEQUACY OF JUDICIAL SYSTEM
The judicial system proved inadequate to decide and settle all types of disputes. It
was slow, costly, inexpert, complex and formalistic. It was already overburdened,
and it was not possible to expect speedy disposal of even very important matters,
e.g. disputes between employers and employees, lockouts, strikes, etc. These
burning problems could not be solved merely by literally interpreting the
provisions of any statute, but required consideration of various other factors and it
could not be done by the ordinary courts of law. Therefore, industrial tribunals
and labour courts were established, which possessed the techniques and expertise
to handle these complex problems.
Introduction 9
5. INADEQUACY OF LEGISLATIVE PROCESS

The legislative process was also inadequate. It had no time and technique to deal
with all the details. It was impossible for it to lay down detailed rules and
procedures, and even when detailed provisions were made by the legislature, they
were found to be defective and inadequate, e.g., rate fixing. And, therefore, it was
felt necessary to delegate some powers to the administrative authorities.
6. SCOPE FOR EXPERIMENTATION

There is scope for experiments in administrative process. Here, unlike legislation,
it is not necessary to continue a rule until commencement of the next session of
the legislature. Here a rule can be made, tried for some time and if it is found
defective, it can be altered or modified within a short period. Thus, legislation is
rigid in character while the administrative process is flexible.
7. AVOIDANCE OF TECHNICALITIES
The administrative authorities can avoid technicalities. Administrative law
represents functional rather than a theoretical and legalistic approach. The
traditional judiciary is conservative, rigid and technical. It is not possible for the
courts to decide the cases without formality and technicality. The administrative
tribunals are not bound by the rules of evidence and procedure and they can take
a practical view of the matter to decide complex problems.
8. PREVENTIVE MECHANISM
Administrative authorities can take preventive measures, e.g. licensing, rate fixing,
etc. Unlike regular courts of law, they have not to wait for parties to come before
them with disputes. In many cases, these preventive actions may prove to be more
effective and useful than punishing a person after he has committed a breach of
any provision or law. As Freeman says, “Inspection and grading of meat answers
the consumer's need more adequately than does a right to sue the seller after the
consumer is injured.”
9. EFFECTIVE ENFORCEMENT OF PREVENTIVE MEASURES

Administrative authorities can take effective steps for enforcement of the aforesaid
preventive measures; e.g. suspension, revocation and cancellation of licences,
destruction of contaminated articles, etc. which are not generally available
through regular courts of law.
CONCLUSION
In recent times a new branch of Administrative Law is emerging, which is

popularly called Global Administrative Law. According to this the WTO is dictating
guidelines on subsidiaries, facilities and services to the people in different
countries. The Banks have also not been sparred from the interference of the WTO
guidelines. Thus, it may be submitted, that due to the emerging Global
Administrative Law, in the near future there is every possibility for the necessity to
re-look into the reasons for growth of Administrative Law.
CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW
To the early English writers on Administrative Law there was no difference

between Administrative Law and Constitutional Law. Therefore, Keith observed: “It
is logically impossible to distinguish administrative from constitutional law and all
attempts to do so are artificial.”
According to Holland, the Constitutional Law describes the various organs of the
government at rest, while Administrative Law describes them in motion.
Maitland, does not agree with this classification for, in that case, powers and
prerogatives of the Crown would be relegated to the arena of Administrative Law.
According to another view constitutional law deals with fundamentals while

Administrative Law deals with the details.
In countries which have written constitutions, the difference between

Constitutional Law and Administrative Law is not so blurred as it is in England. In
such countries the source of constitutional Law is the Constitution while the
source of administrative law may be statutes, statutory instruments, precedents
and customs.
To conclude, as observed by I. P. Massay,
“Whatever may be the arguments and counter-arguments, the fact remains that
today Administrative Law is recognised as a separate, independent branch of the
legal discipline though at times the disciplines, of constitutional law and
administrative law may overlap.
The correct position seems to be that if one draws two circles of Administrative Law
and Constitutional Law, at a certain place they may overlap and this area may be
termed as the ‘watershed’ in Administrative Law.”
Introduction 11
CONSTITUTIONAL LAW AND ADMINISTRATIVE LAW DISTINGUISHED
The following are the differences between the two laws:
1. Constitutional Law is the supreme and highest law of the country.

Administrative Law is subordinate to the constitutional Law.
2. The Constitutional Law is always regarded as the genus. Administrative Law is

the species of Constitution Law.
3. Constitutional Law mainly deals with various organs of a state. Administrative

Law deals with the organs of the state as motion.
4. Constitutional Law mainly deals with the structure of the State. Administrative
Law mainly deals with the various functions of the state.
5. Constitutional Law touches all the branches of law and gives guidelines with
regard to the general principal relating to organization and powers of organs of
the State, and their relations between citizens and towards the State.
Administrative Law doesn't deal with all branches of law, rather it details with
the powers and functions of administrative authorities.
6. Constitutional Law also gives guidelines about the intentional relations.

Administrative Law does not deal with the International Law. It deals
exclusively with the powers and functions of administrative authorities.
7. Constitutional Law deals with the general principal of state pertaining to all
branches. Administrative Law deals with the powers and functions of
administrative authorities, including services, public departments, local
authorities and other statutory bodies exercising administrative powers, quasi
judicial powers, etc.
8. Constitutional Law demarcates the constitutional status of Ministers and

public servants. Administrative Law is concerned with the organization of the
services or the working of the various government departments.
9. Constitutional Law imposes certain negative duties on administrators, if they

are found violating the fundamental rights of the citizens and etc. It also
imposes certain positive duties on administrators, viz, implementation of social
welfare schemes. The administrators have to follow Constitutional Law first
and next the Administrative Law.
10. Constitutional Law has complete control on the Administrative Law and
administrators of the country. The administrators should perform their
functions with utmost obedience to Constitutional Law. Administrative Law is
just a subordinate to Constitutional Law.
DROIT ADMINISTRATIF
In France, Droit Administratif can be defined as a body of rules which determine

the organisation and the duties of public administration, and which regulate the
relations of the administration with the citizens of the State.
Droit Administratif is quite different in conception from the Common Law system of
Administrative Law. It is in itself the product of the doctrine of separation of
powers, and has meant in France that there should be separation between the
courts and administrative bodies. As a result, the separation theory has had a
greater imprint in France than in the U.S.A.
The traditionalist Bonapartists supported the executive power even in judicial

matters while reformist parliaments supported the jurisdiction of ordinary courts.
Conseil du Roi not only advised the King in legal and administrative matters, but
also discharged some judicial functions. This made the ordinary courts
(Parlements) jealous.
Significant changes were brought by the Revolution in 1789. The first step taken
by the revolutionists was to curtail the power of the executive which was done on
the theory of separation of powers by the famous 16-24 August, 1790 Law. Conseil
du Roi was abolished and the King's powers were curtailed.
Napoleon, who became the first Consul, favoured freedom for the administration
and also favoured reforms. He wanted an institution to give relief to the people
against the excesses of the administration.
Therefore, in 1799 Conseil d’Etat was established. The main aim of the institution
was to resolve difficulties which might occur in the course of the administration.
However, in due course of time it started exercising judicial powers in matters
involving administration.
In the beginning it was not an independent court but an appendage of the

executive. Its main task was to advise the minister with whom the complaint was
to be lodged. In fact the minister was the judge, and the Conseil d’Etat
administered only advisory justice. It did not have public sessions. It had no power
to pronounce judgements. It represented the government's point of view. It was
this aspect of the Conseil d’Etat which was against Dicey’s concept of the Rule of
Law.
Introduction 13
In 1872 its formal power to give judgement was established. The Arrets (Executive
Law) Blancq, February 8, 1873 finally laid down and settled that in all matters
involving administration, the jurisdiction of the Conseil d’Etat would be final. It
laid down, among other things, the principle that questions of administrative
liability would be within the jurisdiction of administrative courts and that the
liability was subject to special rules different from those of Droit Civil.
In 1889, it started receiving direct complaints from the citizens and not through
ministers. Droit Administratif does not represent principles and rules laid down by
the French Parliament. It consists of rules developed by the judges of the
administrative courts.
Droit Administratif, therefore, includes three series of rules:
1. Rules dealing with administrative authorities and officials. These relate to

appointment, dismissal, status, salary and duties etc.
2. Rules dealing with the operation of public services to meet the needs of citizens.
These services may be operated either wholly by public officials or under their
supervision or they may assist private agencies to provide public utility
services.
3. Rules dealing with administrative adjudication. If any injury is done to a private

citizen by the administration, the matter would be decided by the
administrative courts. Conseil d’Etat is the highest administrative court.
This system of administrative adjudication developed in France due to historical

reasons in order to avoid encroachment by the courts on the powers of the
administrative authorities and prevent intrusion by the judges into the business of
the administration.
In case of conflict between the ordinary courts and the administrative courts
regarding jurisdiction, the matter is decided by the Tribunal des Conflits. This
tribunal consists of an equal number of ordinary and administrative judges and is
presided over by the minister of justice.
DOCTRINE OF SEPARATION OF POWERS
State is an artificial person having enormous powers. Like any other artificial
person, state also needs the help of human agents to perform its functions. These
human agents of the state are called the government.
In federal nations like India, the government is divided into three organs:
legislature, executive and judiciary. They are all assigned the different functions of
the State. The function of the Legislature is law making. Judiciary interprets the
laws made by the legislature. Executive looks after the general administration of
the nation.
According to Montesquieu, there should be separation of powers between these

three organs of the government. This is called the Doctrine of Separation of
Powers. This Doctrine can be stated in terms of the following three rules:
1. One organ of the Government should not interfere with the working of another.
2. One organ of the government should not exercise the functions assigned to any
of the other organs.
3. The same person should not form the part of more than one organ at the same
time.
This Doctrine is very useful in theory because it ensures smooth functioning of the
government. Otherwise there can be friction within the government. It also makes
clear who has to perform which function. In the absence of this doctrine, any
organ can carry out function of any other organ and that will create confusion
among the people as to from whom they should get the work done. Further, the
persons in the government may use this opportunity to avoid their responsibilities
by making other organs responsible. The practical utility of this doctrine attracted
the frames of many constitutions all over the world during the 19 th century and
many constitutions, such as those of England and the U.S.A. have adopted it.
However, it is difficult to follow this doctrine in practice. The functions of the

government cannot be divided in water-tight compartments. Many times we have
to deviate from the strict doctrine of separation of powers. Even in countries like
U.S.A., where this doctrine is a part of the constitution and is followed strictly,
there are deviations because of practical difficulties.
MODERN VIEW OF SEPARATION OF POWERS
Though doctrine of separation of powers is laudable in its object, its application in

its purest form is not only impossible, but also undesirable. Therefore, the modern
view of the doctrine makes some modifications to the classical doctrine of
separation of powers as propounded by Montesquieu. The following are two
instances of the modern form of separation of powers:
Introduction 15
Essential and Incidental Functions
In any system, it is possible broadly to identify the separate functions of

lawmaking, administering and judging and to ensure that each is carried out only
by the proper body according to an appropriate procedure.
It is widely accepted that a rigid distinction of function between the three branches
is not practicable in contemporary society. This is by virtue of the amount and
complexity of business that governments are expected to handle. Most common
examples are, delegation of lawmaking powers by legislatures to the executive,
lawmaking by judges by way of precedents, advisory role of judiciary to executive,
etc.
This calls for the classification of functions of each branch as essential functions
and incidental functions.
Essential functions are those which can be discharged by only that organ whose
functions they are, and therefore, they cannot be discharged by the other organs.
As a logical consequence, that organ cannot delegate those functions to the other
organs.
Incidental functions are those functions which are not the essential functions of
the organ, but are incidental to, and necessary for, the discharge of essential
functions. They are the functions which may be discharged by other organs.
Therefore, they may be delegated to the other organs.
Doctrine of Checks and Balances
The third aspect of the separation of powers is that one organ of the government
shall not interfere in the functioning of another organ.
However, the modern view is that there cannot be separation of powers to that
extent. Each organ should have some control over the other to some extent. This is
called a system of ‘checks and balances’. This lies at the heart of the republican
version of constitutionalism and the rule of law.
Therefore, the modern view of separation of powers involves each branch having
some control over the others but also requires each branch to be protected against
undue interference by the others thus entailing the need for pragmatic
compromise. Some of the examples of checks and balances are,
• government being responsible to the legislature in a responsible government.
• judicial review of legislative and executive actions
• abrogation of precedents by legislatures
DOCTRINE OF SEPARATION OF POWERS IN INDIA
In India, our Constitution nowhere mentions the doctrine of separation of powers.

The doctrine of separation powers is not expressly incorporated in the Indian
Constitution, except for the directive principle in art. 50 regarding the separation
of judiciary from executive.
However, the scheme of allocation of powers under the Indian Constitution

suggests that Indian Constitution adopts the doctrine of separation of powers.
There are, on the other hand, several exceptions to or deviations from the doctrine
of separation of powers under the Indian Constitution.
Notable examples are:
• Art. 141 provides that the decisions of the Supreme Court shall be the law binding
on all Courts subordinate to it. Thus, law-making function is given to judiciary. So
also, in case of Delegated Legislation, executive makes law.
And while exercising quasi judicial functions, the executive decides cases as if it is
judiciary. Thus executive at times discharges the functions of legislature and
judiciary. Thus, he has to be a part of two organs at the same time. Thus, there is
a deviation from the first rule of Separation of Powers.
• The Indian Government is a responsible Government. Thus, the executive

Government is answerable to the people through their representative. Therefore,
legislature can question the executive Government about its activities. Thus, there
is a deviation from the second rule of Separation of Powers.
• The Council of Ministers is made up of Members of Parliament. If a person who is

not a member of parliament is made a minister, he will have to contest for election
and become a member of Parliament within 6 months or else he will be disqualified
to continue as minister. Thus, to become a member of the executive, he has to
become a member of legislature. In other words, to become member of one organ
one has to become the member of another organ. Thus, there is a violation of the
third rule of Separation of Powers.
Though, we see that there are some significant deviations from this doctrine, it is
followed wherever it is possible.
Introduction 17
Thus, while the political usefulness of the doctrine is widely recognised under our
constitution, wherever it is practically difficult, it is deviated from. If this doctrine
were to be followed in letter and spirit, it would have become impossible for our
courts to uphold the constitutional validity of delegated legislation which has
proven to be very useful in practice.
Ram Jawaya Kapur vs. State of Punjab
The Supreme Court observed that Indian Constitution has not recognised the
doctrine of separation of powers in its absolute rigidity, but the functions of the
different organs have been sufficiently differentiated and consequently it may be
said that our Constitution does not contemplate assumption of functions that
essentially belong to one organ by another organ.
RULE OF LAW
The basis of Administrative Law is the ‘Doctrine of the Rule of Law’. The expression
‘Rule of Law’ has been derived from the French phrase ‘la principle de legalite’, i.e.,
a Government based on the principles of law.
Law may be taken to mean mainly a rule or principle which governs the external
actions of the human beings and which is recognised and applied to the affairs in
a country where, in main, the law is observed and order is kept. It is an expression
synonymous with law and order.
It was expounded for the first time by Sir Edward Coke, and was developed by
Prof. A. V. Dicey in his book 'The law of the Constitution' published in 1885.
According Coke, in a battle against King, he should be under God and the Law,
thereby the Supremacy of Law is established.
THREE PRINCIPLES OF RULE OF LAW

Dicey regarded rule of law as the bedrock of the British Legal System. His doctrine
is accepted in the constitutions of U.S.A. and India. According to Prof. Dicey, rules
of law contains three principles:
1. Supremacy of Law;
2. Equality before Law; and
3. Predominance of Legal Spirit.

1. Supremacy of Law
The absolute supremacy or predominance of ‘regular’ law is opposed to arbitrary

power and the absence of discretionary authority on the part of government. ‘No
man is punishable or can be lawfully made to suffer in body or goods except for a
distinct breach of law legally established before the ordinary courts.’
This means firstly that
1. no official can interfere with individual rights without the sanction of law; and
2. officials should not have wide discretionary powers.
However, governmental discretion is inevitable. Rules cannot be made to deal with

every possible case, and modern government with its concern for child welfare,
public health and education could hardly operate without discretionary powers in
order to tailor decisions to individual circumstances. Discretion is also essential to
lighten the burden of the strict law.
2. Equality Before the Law
Everyone whether high official or ordinary citizen is subject to the same law
administered by ordinary courts. Dicey believed that everyone is subject to the
same law administered by the ordinary courts. But he did not mean that there are
identical rules for everyone and that no one has special privileges. This would have
been obviously untrue. The law singles out many groups, for example, the
President, Prime Minister, Ministers, MPs, foreign governments, judges, diplomats
and police officers all of whom have special duties and privileges. The rule of law,
however, requires that any special treatment must be adequately justified.
Most importantly Dicey meant that officials enjoy no special protection as such.
This has two aspects.
1. if an official exceeds or abuses his power, he is personally liable just as if he

were a private citizen.
2. disputes between government and citizen are settled in the ordinary courts
according to the ordinary law rather than in some special governmental court.
3. Predominance of Legal Spirit
Constitution is the ‘result’ of the ordinary law. Third meaning of rule of law derives
from the common law tradition and relates to the extended notion of the rule of
law. Dicey believed that the UK Constitution, not being imposed from above in the
form of a written Constitution, was the result of decisions by the Courts in
Introduction 19
particular cases. Therefore it was embedded in the very fabric of the law and
backed by practical remedies. This promotes equality between citizen and the
State by treating private law with its focus on individual rights.
APPLICATION OF THE DOCTRINE IN ENGLAND

Though there is no written constitution in England, the rule of law is applied in
concrete cases. However, Dicey’s rule of law was not accepted in full in England.
1. In those days, many statutes allowed priority of administrative power in many

cases, and the same could not be challenged before the Courts.
2. Further sovereign immunity existed on the ground of ‘King can do no wrong’.

The sovereign immunity was abolished by the Crown Proceedings Act, 1947.
3. Prof. Dicey could not distinguish arbitrary power from discretionary power, and
failed to understand the merits of French legal system.
RULE OF LAW UNDER THE CONSTITUTION OF INDIA
The Constitution of India is the supreme law of the country. The doctrine of Rule
of Law has been adopted in Indian Constitution. The ideals of the Constitution,
justice. liberty and equality are enshrined in the preamble. Part III of the
Constitution of India guarantees the FRs.
Kesavanda Bharati vs. State of Kerala (1973)
The Supreme Court enunciated the rule of law as one of the most important
aspects of the doctrine of basic structure.
Maneka Gandhi vs. Union of India (1978)
The Supreme Court declared that Article 14 strikes against arbitrariness.
Indira Nehru Gandhi vs. Raj Narain (1975)
Art. 329-A was inserted in the Constitution under 39 th amendment, which provided
certain immunities to the election of office of Prime Minister from judicial review.
The Supreme Court declared Article 329-A as invalid since it abridges the basic
structure of the Constitution.
A. D. M. Jabalpur vs. Shivakant Shukla (1976)
In this case, which is popularly known as the Habeas Corpus Case, the question
before Supreme Court was, whether there was any rule of law in India apart front
art. 21 of the Constitution. The Supreme Court by majority held that there is no
rule of law other than the constitutional rule of law. Article 21 is our rule of law. If
it is suspended, there is no rule of law.
CLASSIFICATION OF FUNCTIONS OF THE EXECUTIVE
In Ram Jawaya Kapur vs. State of Punjab, the Supreme Court observed,
“It may not be possible to frame an exhaustive definition of what executive function
means and implies. Ordinarily the executive power connotes the residue of
governmental functions that remain after legislative and judicial functions are
taken away."
As the functions of the executive are numerous, they have to be classified as

under for better treatment:
Broadly, the functions of the executive may be classified as administrative

functions and legislative functions.
Administrative functions are further classified as purely administrative functions,

quasi legislative functions and quasi judicial functions.
FUNCTIONS OF THE
EXECUTIVE
Rule-making LEGISLATIVE ADMINISTRATIVE

Function FUNCTIONS FUNCTIONS
Purely
Quasi Judicial Quasi Legislative
Administrative
Functions Functions
Functions
Discretionary Ministerial
Functions Functions
Introduction 21
LEGISLATIVE FUNCTIONS OF ADMINISTRATION

Rules or delegated legislation is the law made by the executive, or sometimes even
by the judiciary, in pursuance of the powers delegated by the legislature to it.
Thus, here the executive acts as the agent of the legislature in making the rules.
As the principle of agency is that act of the agent is act of the principal, the rules
are as good as made by the legislature. Hence, rules are law.
EXECUTIVE FUNCTIONS OF ADMINISTRATION

As the functions of administration are numerous they are further classified as
purely administrative functions, quasi legislative functions and quasi judicial
functions.
Purely Administrative Functions
Purely administrative functions are those functions of administration which are

neither legislative functions, nor are they the functions which resemble legislative
or judicial functions.
Purely administrative functions are further classified as ministerial functions and

discretionary functions.
Ministerial functions are those administrative functions where the officer

discharging the function does not apply his mind to the case before him. He
follows predetermined rules or orders of the superiors.
Discretionary functions are those where there are no predetermined rules

governing the case and hence, the officer has to apply his mind to the case and
arrive at his own decision.
As a ministerial officer does not take his own decision, no responsibility may be
attached to his acts. On the other hand exercise of discretionary functions is
coupled with responsibility.
Quasi Legislative Functions
Its innumerable functions are to be discharged by the Government through its

various departments, each consisting of many officers. Officers belonging to the
same cadre may be working at different places. All these officers must work in a
uniform manner. In this regard the Government issues orders to the officers.
Similarly, in every department, higher authorities issue orders to their

subordinates. Such orders may be special or general in nature. Special orders are
applicable to only one or few officers, while general orders are applicable to all the
officers of a particular class.
A general order or direction looks like a law. But as it is not actually a law, it is
called quasi law, and the function of issuing such directions is called the quasi
legislative function. In fact issuing directions, general or special is necessarily a
part of exercise of administrative function by the concerned authority.
For example, CBDT issues notifications as to the interpretation of the provisions of

the Income tax Act, so that different officers of the Income Tax Department do not
interpret and apply them differently.
Thus, quasi legislative function is an executive function. Therefore, no legislative

sanction is separately necessary for discharging this function. Further, the
directions issued in exercise of this function are not law, and hence not justiciable
Quasi Judicial Functions
Often powers are given to the administrative authorities to decide the rights and
liabilities of individuals, as if they are courts. But in discharge of these powers, the
concerned authorities are not acting in judicial capacity but they are acting in
administrative capacity. Hence they are called quasi judicial authorities.
LEGISLATIVE SANCTION
Out of the above functions, administrative functions, whether ministerial or
discretionary, and quasi legislative functions are essentially executive functions.
This means that the administrative authorities may discharge these functions in
discharge of their duties and functions. They do not need any special statutory
authority to discharge these functions. Still, however, often statute invest the
administrative authorities with discretionary functions or with power to issue
directions. In such cases, these functions may be exercised in accordance with the
requirements, if any, provided under the enabling statute.
Rule-making functions are essentially legislative functions, and cannot be

undertaken by administrative authorities without legislative sanction, i.e., an
enabling act. Though quasi judicial function is an executive function, it can be
discharged by the administrative authorities only under a statutory provision
empowering them to discharge such a function. In both these cases also, the
authority has to follow the procedural and other requirements under the statute.
CHAPTER II
DELEGATED LEGISLATION
• Definition of Delegated Legislation
• Need for Delegated Legislation
• Constitutional Validity of Delegated Legislation
• Essential Legislative Function
• Types of Delegated Legislation
• Control of Delegated Legislation
DEFINITION OF DELEGATED LEGISLATION
Functions of State are divided among its three organs, viz., legislature, judiciary
and executive. Making law is the function assigned to the legislature. Executive
has the function of looking after the general administration of the State. However,
due to several reasons, the legislature is unable to make all the laws needed by the
State. Therefore, in many cases, it makes the bulk of the legislation and delegates
its power to make the remaining laws to the executive or, in some cases, to the
judiciary. Thus, even though it is not the function of the executive and judiciary to
make laws, they can now make laws under the legislative powers delegated to
them by the legislature. Laws so made by the executive and judiciary are called
delegated legislation.
Legislative functions of the legislature are directly derived from the State and
legislature is the specialist body in law-making. Therefore, laws made by it are
called Superior Legislation. Executive and judiciary are not the specialist law-
making bodies. Their legislative powers are derived from the legislative powers of
the legislature. Therefore, the laws made by them are called Subordinate
Legislation.
NEED FOR DELEGATED LEGISLATION
There are many reasons which have made it necessary for the legislature to
delegate its law-making powers. Some of these reasons are as under:
1. Pressure on the Legislature;
2. Lack of Expertise on the Part of the Legislature;
3. To Tackle Unforeseen Circumstances;
4. Facility for Experimentation;
5. Maintenance of Secrecy; and
6. Administrative Nature of the Matter
1. PRESSURE ON THE LEGISLATURE
India has adopted the welfare state model and accordingly, it has undertaken a
vast variety of functions, both sovereign and commercial. Because the State
functions are more, the laws required to carry out these functions are more. As a
result, The pressure on the legislature has increased to a great extent. Legislature
does not find time to make all the laws necessary for the functioning of the State.
Therefore, some of its burden is to be transferred to the other organs of the State.
2. LACK OF EXPERTISE ON THE PART OF THE LEGISLATURE
Again, as the functions of the State are of wide variety, legislature does not find
itself well equipped with the necessary expertise to make laws in all the fields of
activity of the State. Executive which is the organ looking after the administration
of the State as many Departments specially dealing in different areas of such
activities. In these Departments many experts are working, who have both
expertise and field experience in different fields. Therefore, executive has the
expertise to make the laws. To make use of this expertise, legislature delegates its
legislative functions to the executive.
3. TO TACKLE UNFORESEEN CIRCUMSTANCES
In fast changing socio-economic-political situations, many unforeseen

contingencies may be confronted by the State. To deal with such situations new
laws are needed urgently. Legislature does not function throughout the year. It
can make laws only when both the Houses are in session. Further, the legislative
procedure is time-consuming. Therefore, legislature cannot make laws quickly to
meet the urgent situations. Executive, on the other hand, is functioning
throughout the year and its law-making procedure is much simpler and quicker
than that of the legislature. Therefore, to enable the executive to make laws to
meet urgent situations, legislature delegates its legislative powers to the executive.
4. FACILITY FOR EXPERIMENTATION
In new fields law-making requires much experimentation. That is, the laws will
have to be changed very frequently. This is not possible for the legislature, but
executive can do so much easily. That is another reason for the delegation of
legislative powers by the legislature to the executive.
5. MAINTENANCE OF SECRECY
Certain laws need to be secret till they actually come into force. If, for example, the
prices of goods will increase after the coming into operation of the law, people will
buy such goods beyond their needs and the sellers will try to hoard the goods, as a
result artificial scarcity may be created and the prices of the goods may sky rocket.
To avoid this the law should be made secretly and be published only after it is
brought into operation.
Delegated Legislation 27
6. ADMINISTRATIVE NATURE OF THE MATTER
Certain aspects of law are in relation to the implementation of the legislative

policy. Such aspects being administrative in nature and can be better managed by
the executive rather than the legislature. Hence the same may be delegated to the
executive.
CONSTITUTIONAL VALIDITY OF DELEGATED LEGISLATION
In the initial stages, delegation of legislative powers was challenged on two

important grounds:
1. That it is against the Doctrine of Separation of Powers which says, inter alia,
that one organ of the government cannot carry out the functions of another
organ. If executive makes laws, then it is carrying out the functions of the
legislature, which is opposed to this principle.
2. That delegation of legislative powers by the legislature to the executive or

judiciary infringes the rule delegatus not postest delegare. Legislature itself
being a delegate cannot further delegate.
Though these two are very strong grounds for invalidating delegation of legislative
powers, looking to the significant advantages of the delegation of legislative
powers, the Courts were forced to reject them. In England and in the U.S.A., it was
held that legislative functions cannot be delegated. Hence, what is delegated by the
legislature is not legislative function.
In India, this question was raised before the Privy Council in R. vs. Burah.
R. vs. Burah
Sec. 9 of an 1869 Act made certain provisions in respect of Garo Hills, and
empowered the Governor of Calcutta to extend this law to Khasi and Jaintia Hills.
This provision was challenged as unconstitutional before the High Court, and High
Court upheld the contention. In appeal against the decision of the High Court, the
Privy Council held that the Act was constitutional and observed that it was not
delegated legislation, but only conditional legislation.
The decision of the Privy Council was interpreted in two different ways in the
subsequent cases. In some cases it was held that the ratio of Burah was that
delegated legislation was constitutional in India, while in others it was held that
the ratio it was that only conditional legislation and not delegated legislation which
was constitutional in India.
Later this question also arose before the Federal Court of India in Jatindra Nath
Gupta vs. Province of Bihar.
Jatindra Nath Gupta vs. Province of Bihar
In this case the FC followed the decision of PC in R. vs. Burah and held that in
India there can be no delegation of legislative powers beyond conditional
legislation. In that case one of the provisions of a temporary Act namely, sec. 1(3)
of the Bihar Maintenance of Public Order Act, 1948 which empowered the
Government to extend the life of the Act by one year with such modifications as it
deemed fit, was challenged as unconstitutional. As the words “with such
modifications as it deems fit” gave the power of amendment to the Government the
Federal Court held it unconstitutional.
Again the question was raised before the Supreme Court of India in Re Delhi Laws
Act.
Re Delhi Laws Act
In this case the facts were that there were few Part C States under the direct
administration of the Central Government because they did not have a legislature
of their own. Their laws were to be made by the Parliament. As parliament did not
find it convenient to legislate for the Part C states, it authorised the Central
Government to extend any enactment in force for Part A State to Part C State with
such restrictions and modifications as may the Central Government deemed fit.
This meant that the Central Government could amend the law. This is delegation
of legislative powers and therefore, was challenged opposed as unconstitutional.
As the decision of Privy Council in Burah was rendered ambiguous and the
decision of the Federal Court in Jatindra Nath was not clear, the President of India
in exercise of his power under art. 143 of the Constitution referred the matter to
the Supreme Court for its advise.
Seven judges of the Supreme Court heard that matter and came to the following
conclusions:
1. Doctrine of Separation of Powers is not a part of the Constitution of India.
2. Parliament of India is not a delegate of anybody and therefore, delegatus non

potest delegare is not applicable to it.
3. Parliament can delegate its powers, but it cannot abdicate or efface itself by
producing a parallel legislative body.
4. Power of delegation is ancillary to the power of legislation.
5. Essential legislative functions cannot be delegated.
The Court defined “essential legislative functions” as:

1. Laying down the policy of law; and
2. Enacting that policy into binding rule of conduct.
If we go through the various decisions of the High Courts and the Supreme Court,
we can come to a conclusion that delegation of legislative powers to the executive
or judiciary is valid in India, subject to the following three conditions:
1. Essential legislative functions cannot be delegated.
2. The legislature should lay down proper guidelines to the executive for the
exercise of the powers delegated to it.
3. Wherever possible the limits within which these powers can be exercised should
be laid down, for example, where the power is to impose penalty, this power
should be exercisable within a prescribed limit.
ESSENTIAL LEGISLATIVE FUNCTION
In India, delegation of legislative functions is valid subject to the important

condition that essential legislative functions shall not be delegated. Therefore, it is
essential to know the meaning of essential legislative functions. The Supreme
Court has defined “essential legislative functions” as:
1. Laying down the policy of law; and
2. Enacting that policy into binding rule of conduct.
How this definition is applied to actual cases is to be found out from various cases
decided by the Courts.
Rajnarain Singh vs. Chairman, Patna Administration Committee
Sec. 3(1)(f) of the impugned Act empowered the Patna Local Administration to
select any provision of the Bengal Municipality Act, 1884 and apply it to Patna
with such modifications and restrictions as it deemed fit. This provision was held
to be unconstitutional as it amounted to picking the policy of the Act.
Hari Shankar Bagla vs. State of Madhya Pradesh
Sec. 3 of the Essential Supplies (Temporary Powers) Act, 1946 empowered the
Central Government to make Rules for the purpose of “maintaining or increasing
supplies of any essential commodity, or for securing their equitable distribution
and availability at fair prices”.
Sec. 6 provided that “any Rule so made shall have effect notwithstanding anything
inconsistent therewith in any Act other than this Act”.
The Court held both sections valid because the policy of the Act was sufficiently
formulated in sec. 3 and clear and sufficient guidance for exercising the power was
given under that section.
Sec. 6 was not viewed by the Court as delegation of amending powers but to
bypass the conflicting law. Further, the Court observed that the effect of bypassing
was not created by the Rules made by the Government but by sec. 6 made by the
Legislature. Therefore, even if the effect of sec. 6 be viewed as amendment of the
statutes, it was attributable to the legislature and not to the executive.
Edward Mills vs. State of Ajmer
The legislature made a law for minimum wages and prepared a schedule setting up
minimum wages for certain industries. Power was delegated to vary this schedule
by adding other industries to this list. It was held to be valid.
Hamdard Dawakhana vs. Union of India
The Drugs and Magical Remedies (Objectionable Advertisements) Act, 1954

provided for the ban on certain advertisements which claimed to provide cure or
remedy for incurable diseases, and sec. 3 of the Act empowered the Government to
modify the list by adding to or deleting from that list names of any diseases, the
provision was held to be unconstitutional as it did not provide for sufficient
guidelines for the same.
Jalan Trading Co. vs. Mill Mazdoor Sabha
Sec. 37(1) of the Payment of Bonus Act, 1965 empowered the Central Government
to make provisions, not inconsistent with the provisions of the Act, for removal of
difficulties or doubts in giving effect to the Act. Sec. 37(1) of the Act makes the
provision made by the government final. This was held invalid by the Supreme
Court on the ground of excessive delegation.
In contrast, sec. 45(10) of the Banking Regulation Act, 1949 provides that “If any
difficulty arises in giveing effect to the provisions of the scheme, the Central
Government may by order do anything, not inconsistent with the provisions, which
appears to it necessary or expedient for the purpose of removing the difficulty”.
This provision was held constitutional. This provision is essentially different from
sec. 37 of the Payment of Bonus Act, 1965 held invalid by the Court. Government
is not the final judge, but whether these conditions are present or not is open to
judicial review.
H. R. Banthia vs. Union of India
Sec. 5(2)(b) of the Gold Control Act, 1968 which empowered the Government to
make Rules to regulate the manufacture, distribution, use, disposal, consumption,
etc. of gold was held to be unconstitutional as it did not provide for sufficient
safeguards.
TYPES OF DELEGATED LEGISLATION
Though strictly speaking there are no different types of delegated legislation, there
are different methods adopted by the legislature to delegate legislative powers to
the executive. Broadly, they fall under the following categories:
1. Skeleton Legislation
2. Power of Inclusion and Exclusion
3. Power of Modification of Statute
4. Power to Impose Tax
1. SKELETON LEGISLATION
In skeleton legislation the legislature prepares the broad law and leaves the details
to be filled in by the executive. Thus, it satisfies the conditions of delegated
legislation that essential legislative powers to be exercised by the legislature and
non-essentials only are to be left to the delegatee.
Hari Shankar Bagla vs. Madhya Pradesh
Sec. 3 and sec. 6 of the Essential Supplies (Temporary Powers) Act, 1946 were
challenged. Sec. 3 empowered the Central Government to make Rules for the
purpose of “maintaining or increasing supplies of any essential commodity, or for
securing their equitable distribution and availability at fair prices”, and sec. 6
provided that “any Rule so made shall have effect notwithstanding anything
inconsistent therewith in any Act other than this Act”.
The Court held both sections valid because the policy of the Act was sufficiently
formulated in sec. 3 and clear and sufficient guidance for exercising the power was
given under that section.
Sec. 6 was not viewed by the Court as delegation of amending powers but to
bypass the conflicting law. Further, the Court observed that the effect of bypassing
was not created by the Rules made by the Government but by sec. 6 made by the
Legislature. Therefore, even if the effect of sec. 6 be viewed as amendment of the
statutes, it was attributable to the legislature and not to the executive.
2. POWER OF INCLUSION AND EXCLUSION

Here the legislature makes the law and in the Schedule to the statute names the
persons, things or places to which it is applicable. Then it empowers the executive
to include any other names to the list or to remove some names from the list. If a
name is added by the government to the list, the law will be made applicable to
that person, thing or place. Similarly, if a name is removed from the list, the law
will cease to be applicable to that person, thing or place. Therefore, normally this
is viewed as a form of conditional legislation rather than delegated legislation and
is held to be valid.
The parent Act not only lays down the policy of the law but also makes the law
itself. It also makes that law applicable to certain persons, things or places and
then allows the executive only to extend this law to more persons, things or places
or to make it not applicable to some. Sufficient guidelines are available in the Act
for that purpose, and the names included by the legislature are themselves
sufficient guidelines to show what types of persons, things or places are
contemplated by the legislature. Therefore, generally such a delegation is held to
be valid.
Edward Mills vs. State of Ajmer
The legislature made a law for minimum wages and prepared a schedule setting up
minimum wages for certain industries. Power was delegated to vary this schedule
by adding other industries to this list. It was held to be valid.
Hamdard Dawakhana vs. Union of India
But in this case, where the Drugs and Magical Remedies (Objectionable
Advertisements) Act, 1954 provided for the ban on certain advertisements which
claimed to provide cure or remedy for incurable diseases, and sec. 3 of the Act
empowered the Government to modify the list by adding to or deleting from that
list names of any diseases, the provision was held to be unconstitutional as it did
not provide for sufficient guidelines for the same.
3. POWER OF MODIFICATION OF STATUTE

There are various ways in which power to modify statutes are delegated to the
executive. They are:
(a) Harishankar Bagla Type of Cases
(b) Power of Inclusion and Exclusion
(c) Delhi Laws Act Type of Cases
(d) Power of Incorporation by Reference:
(e) Power to Include Removal of Difficulty Clause (Henry VIII Clause)

(a) Harishankar Bagla Type of Cases

Here the parent statute lays down that the Rules made under the statute are valid
even when they are in conflict with the provisions of any other Statute.
(b) Power of Inclusion and Exclusion

This does not modify the provision of a statute but modifies the operation of the
statute.
(c) Delhi Laws Act Type of Cases
Here power is conferred upon the executive to extend an enactment already in

force in one area to other areas with such restrictions and modifications as the
executive thinks fit.
Here, prima facie, the law may be modified by the executive in any manner and
that amounts to the delegation of power to amend the statute. Therefore, it is
argues that it is unconstitutional being excessive delegation. However, Courts
have adopted harmonious interpretation and held them constitutional.
Courts have held that the power of modification, though the power conferred upon
the executive is couched in very wide terms, that should not be construed to
confer blanket power to the executive to modify the statute.
The legislature has already made a law and laid down the policy of law and
provisions of law. The power of modification must be within the policy so laid down
by the statute and the executive is not expected to make such modifications as
would change the policy of law.
(d) Power of Incorporation by Reference

Here the executive is empowered to apply provisions from one statute to another
statute with necessary modification.
For example, sec. 12 of the central Excise and Salt Act, 1944 authorises the
Central Government to apply provisions of Customs Act, 1962, with such
modifications as the Government may think fit, to certain matters under the
Customs Act. Courts have reiterated the principle that the power to “restrict and
modify” does not import the power to make “essential changes” and that it is
confined to the alterations of a minor character without change in principle.
(e) Power to Include Removal of Difficulty Clause (Henry VIII Clause)
This gives the executive a lot of discretion to modify the statute in the guise of
removal of difficulty. Therefore, in England it is nicknamed as the Henry VIII
Clause, because Henry VIII was known for his autocracy.
This kind of provision is normally used in socio-economic legislations. In case of

such statutes, unforeseen difficulties may be encountered at the time of
implementation of statute. To remove these difficulties the executive is empowered
to make necessary provisions.
In India this type of power is given in two ways:
1. to make minor modifications without changing the provisions of the Act, and
2. to make any modification, even by changing the provisions of the Act itself. The
former is valid while the latter is unconstitutional.
Jalan Trading Co. vs. Mill Mazdoor Sabha
Sec. 37(1) of the Payment of Bonus Act, 1965 empowered the Central Government
to make provisions, not inconsistent with the provisions of the Act, for removal of
difficulties or doubts in giving effect to the Act. Sec. 37(2) of the Act made the
provision made by the government final. This was held invalid by the Supreme
Court on the ground of excessive delegation. The government was made the sole
judge to say
1. whether there was any doubt or difficulty in giving effect to the Act;
2. whether it was necessary to make any provision to remove it; and
3. whether the Rule made by the Government was inconsistent with the provisions
of the Act.
But later under many other Acts a similar power is held to be valid. Sec. 45(10) of
the Banking Regulation Act, 1949, for example, reads, “If any difficulty arises in
giving effect to the provisions of the scheme, the Central Government may by order
do anything, not inconsistent with the provisions, which appears to it necessary or
expedient for the purpose of removing the difficulty”.
The reason for holding this valid is evident. This provision is essentially different
from sec. 37 of the Payment of Bonus Act, 1965 held invalid by the Court. Under
the sec. 45 of the Banking Regulation Act, 1949, there are three requirements to
be fulfilled before the order can be validly made under it:
1. There must be a difficulty or doubt in giving effect to the Act;
2. It must be expedient to make a provision for removal of such doubt or

difficulty; and
3. that the order is not inconsistent with the provisions of the Act.
It is worth noting that the Government is not the final judge, but whether these
conditions are present or not is open to judicial review.
4. POWER TO IMPOSE TAX
Power to impose tax is an essential legislative function. It is not only a means for
raising the revenue for the state, but also a means for social control. It is a very
important weapon in the armoury of the legislature to control the executive.
Therefore, delegation of power to impose tax is invalid. However, here also, the
Courts have applied harmonic interpretation and held some methods of delegation
of power to impose tax constitutional.
(a) Delegation of Power to Exempt a Commodity from the Purview of Tax
The leading case on this is the Oriental Weaving Mills vs. Union of India.
Oriental Weaving Mills vs. Union of India
Delegation of such a power was held constitutional. The Court held that whereas
the legislature cannot delegate its power to impose tax to the executive, because it
is an essential legislative function, it can delegate power to select persons on
whom, or goods or transactions to which, or places at which the tax may be
imposed. Before making the selections of such persons, things, transactions or
places, several matters need to be considered, such as impact of the levy on the
society, economic consequences, administrative convenience, etc.
These factors change from time to time and from place to place. Therefore,
executive may be in a better position than the legislature to take things factors
into account. Hence there is nothing wrong in delegation of these things by the
legislature to the executive.
(b) Delegation of Power to Bring a Commodity Within the Purview of Tax
For the same reason as mentioned above, this delegation is also held to be valid.
(c) Delegation of Power to Fix Rates of Tax
Law made by the legislature may impose tax and leave it to the executive to fix the
rates of the tax, subject to a maximum rate prescribed by the legislature. This is
because in many cases it is necessary to vary the rates of tax from time to time.
For example, under the Coal Mines (Conservation and Safety) Act, 1952, the
Central Government is empowered to impose a duty of excise, subject to a
maximum prescribed, on all coal raised and despatched, and as a corollary
thereof, the Government may impose an equivalent import duty on the coal
imported.
(d) Delegation to a Representative Body
In some cases the power to impose tax at is delegated to a representative body

such as a municipal corporation, which is upheld by the Courts because the
representative character of the delegatee ensures that the power is not misused.
(e) Delegation to a Statutory Body
Taxing powers are often delegated to statutory bodies which have quasi
representative nature. If such power is properly guided and controlled, courts have
no hesitation in upholding the same.
J. R. G. Manufacturing Association vs. UOI
Sec. 12(2) of the Rubber Act, 1947 empowers the Rubber Board to levy an excise
duty from estate owners who produce rubber and from manufacturers who use
rubber. This power was upheld by the Supreme Court on the ground that the
Rubber Board consists of several representatives of rubber interests, and also that
the statute furnishes guidelines to the Board in respect of levying and collecting
the estate duty. More significantly, the acts of the Board are under direct control of
the Central Government, and are subject to the Rules made by the Central
Government, which are to be laid before the Parliament.
B. K. Krshna Bhat vs. State Karnataka
Karnataka State Legislature conferred power upon Bangalore Development

Authority power to levy and collect property tax. This was upheld by the Supreme
Court on the ground that an elaborate mechanism was provided in the statute for
the levy and collection of the tax and was not left to the discretion of the BDA.
CONTROL OF DELEGATED LEGISLATION
1. JUDICIAL CONTROL
Judicial control of delegated legislation is done in the form of judicial review by

applying the doctrine of ultra vires. This is classified as under:
Doctrine of
ultra vires
Substantive Procedural
ultra vires ultra vires
Challenging the Challenging the

Parent Act Delegated Law
Parent Act Delegation Delegated Law Delegated Law

ultra vires ultra vires ultra vires ultravires the
Constitution Constitution Constitution Parent Act
Beyond the legislative Actual Ultra Vires

competence of the Excessive Delegation Violation of FRs 1. In Excess of Delegation
legislature 2. Conflict with Parent Act
Power to make Rules

Violation of FRs which can be
unconstitutional Constructive Ultra Vires
1. Unreasonable
2. Mala fide
3. Encroachment on rights
4. Conflict with other Act
In India judicial review of delegated legislation is done mainly by invoking the

doctrine of ultra vires. If the delegated legislation is out of the scope of power of
the delegatee, it is called substantive ultra vires.
If the delegated legislation is within the scope of the power of the delegatee, but
the delegatee has not followed the mandatory procedure prescribed for the making
of delegated legislation, then it is procedural ultra vires.
SUBSTANTIVE ULTRA VIRES
Doctrine of substantive ultra vires is applied in three stages:
1. The parent Act is ultra vires the Constitution.
2. The delegation is ultra vires the Constitution.
3. The delegated legislation is ultra vires the Constitution.
4. The delegated legislation is ultra vires the parent Act.
1. The Parent Act is Ultra Vires the Constitution
If the parent Act is ultra vires the Constitution it is invalid and the rule making
powers given under it are also invalid. Therefore the rules made under such
invalid rule making powers are also invalid.
In some cases the entire Act may be ultra vires the Constitution, while in many
cases only a particular provision may be ultra vires the Constitution. Where the
Act is beyond the legislative powers of the legislature which has made it, for
example, if the Act is bad for extra territorial operation, or if the Act is on a subject
on which the concerned legislature cannot legislate, the Act is ultra vires the
Constitution. Thus, on two grounds one may challenge an Act as unconstitutional
for lack of legislative competency.
1. The subject-matter of the Act is one on which that legislature cannot legislate.
2. The Act is extra-territorial in effect.
On the other hand, if the Act is violative of any provision of the Constitution,
especially of the fundamental rights, only those provisions which are against the
Constitution will be ultra vires the constitution. If the rule making powers are for
giving effect to such ultra vires provisions, only then those rule making powers will
be invalid. If the rule making powers are for giving effect to other provisions or for
giving effect to the entire Act in general, then they are valid.
2. The Delegation is Ultra Vires the Constitution
The parent Act may be perfectly Constitutional, but the delegation may be
excessive delegation, i.e., it may delegate essential legislative powers to the
delegatee. In such a case the delegation of legislative powers will be ultra vires the
Constitution.
3. The Delegated Legislation is Ultra Vires the Constitution
In some cases the parent Act may be perfectly Constitutional but the rules made
under it may be ultra vires the Constitution. In such cases, though the parent Act
and the delegation of legislative powers under the Act are valid, the delegated
legislation will be unconstitutional.
Dwarka Prasad vs. State of U. P.
Rule 3(1) of the U.P. Coal Control Order issued under sec. 3 of the Essential
Supplies (Temporary Powers) Act, 1946 provided that no one can carry on business
in coal except under a licence, and Rule 3(2)(b) empowered the State Coal
Controller to exempt any person from the requirements of licence. Rule 3(2)(b) was
held ultra vires art. 19(1)(g) of the Constitution as it places unreasonable
restriction on freedom of trade and profession by giving arbitrary powers to the
Coal Commissioner in granting exemptions.
Himat Lal K. Shah vs. Commissioner of Police
Bombay Police Act, 1951 empowered the Commissioner of Police to frame rules for
regulation of conduct and behaviour of assemblies and processions by prescribing
routes and time of processions. The Police Commissioner made rules in which Rule
7 provided that no public meeting will be held without his prior permission. This
rule was held ultra vires on the ground that the rule was an unreasonable
restriction on the freedom of speech and expression inasmuch as it vested the
administrative agency with arbitrary discretion in granting or refusing permission.
4. The Delegated Legislation is Ultra Vires the Parent Act
The Rules made by the delegatee may be beyond the powers given to it by the
parent Act. In such cases the Rules are said to be ultra vires the parent Act. In
some cases, though the Rules do not literally exceed the powers given to the
delegatee by the parent Act, their effect may be such that the Courts can say the
parent Act never intended to delegate such powers to the delegatee. This is
sometimes called extended ultra vires. Following are the different cases where the
Courts have held that the Rules are ultra vires the parent Act.
(a) Rules are in excess of delegation

Actual ultra vires
(b) Rules conflict with parent Act
(a) Rules are unreasonable, etc.
(b) Rules are mala fide
Constructive ultra vires
(c) Rules encroach upon common law rights of the citizens
(d) Rules conflict with some Act other than the parent Act
(a) Rules are in Excess of Delegation
In this case the parent Act delegates Rule-making functions to the Government.
However, Government makes Rules in excess of the powers delegated to it by the
parent Act.
In cases where specific Rule-making powers are delegated, the Government may
make Rules on subjects which are not delegated to it. In such cases also the Rules
will be ultra vires the parent Act.
Dwarka Nath vs. Municipal Corporation
Sec. 23(1) of the Prevention of Food Adulteration Act, 1954 empowered the
government to make rules for restricting the packaging and labelling of any article
of food with a view to preventing public from being deceived or mislead as to
quantity or quality of the article.
Rule 32 framed under the Act provided that there shall be specified on every label
name and business address of the manufacturer, batch number and code number
either in Hindi or in English.
Action was taken against Mohan Ghee Company for violation of the Rule as on the
tins of ghee only “Mohan Ghee Laboratories, Delhi-5” was written.
The Rule was held to be ultra vires as the power conferred by the enabling Act was
restricted to quantity and quality only.
Ibrahim vs. RTA
The rules framed by the administrative authority fixing sites for bus stops was held
to be ultra vires where the enabling Act authorised the agency to make Rules for
the control of transport vehicles.
(b) Rules Conflict with Parent Act
The relationship between parent Act and Rules made under it is often depicted by
the expressions ‘superior legislation’ for parent Act and ‘subordinate legislation’ for
the Rules.
Therefore, if there is any conflict between the parent Act and the Rules made
under it, the parent Act, being superior legislation prevails over the Rules which
are subordinate legislation.
Ram Prasad vs. State
Sec. 49 of the U. P. Panchayat Raj Act, 1947 provided that every case triable by the
Panchayat Adalat must be tried by a Bench constituted in a manner laid down in
the Act.
Rule 87 framed under the Act provided that three members of a Bench would form
the quorum. This was less than that provided under the Act. Hence, the Rule was
held to be ultra vires.
D. T. U. vs. B. P. B. Hajelay
Sec. 92(1) of the Delhi Corporation Act, 1957 provided that all employees drawing
salary of less than Rs. 350 per month shall be appointed by the General Manager
of the Delhi Transport Undertaking.
Sec. 95 provided that no employee shall be dismissed by any authority subordinate

to the appointing authority. The Rule empowering dismissal of any employee
drawing salary of less than Rs. 350 per month was held to be ultra vires the parent
Act.
State of Karnataka vs. H. Ganesh Kamath
Rule 5(2) of the Karnataka Motor Vehicles Rules, 1963 provided that even though a
person has passed the test for driving heavy motor vehicle he cannot obtain licence
unless he has a medium motor vehicle licence and experience of two years in
driving a medium motor vehicle.
This rule was held to be ultra vires as being in direct conflict with sec. 7(vii)(a) of
the Motor Vehicles Act, 1939 which provided that a person who passes a test in
driving a heavy motor vehicle is deemed also to have passed the test in driving a
medium motor vehicle.
(c) Rules are Unreasonable, etc.
Rules are made by the Government in exercise of the powers delegated to it by the
legislature through an enabling Act. Therefore, the relationship of legislature and
Government is that of principal and agent. The legislature is the principal and the
Government is the agent. Therefore the maxim ‘act of agent is act of principal’ is
applicable to Rule-making function. In other words, Rules are treated as extension
of the statute under which they are made.
Whether a statute is reasonable or unreasonable is a matter to be decided by the

legislature and not by the judiciary. Therefore, judiciary is not concerned with the
reasonableness of a statute. It is only concerned with the Constitutional validity of
a statute.
The same principle is applicable to Rules also, because of their treatment as

extension of the parent Act. Therefore, Courts normally show reluctance in testing
the reasonableness of Rules.
Mulchand vs. Mukund
Bombay High Court held that rules cannot be challenged on the ground that they
are unreasonable because they are extension of the statute under which they are
made.
The Supreme Court also held that jurisdiction under art. 226 does not extend to
test the reasonableness of rules.
Trustees of Port of Madras vs. Aminchand
The Supreme Court held that scales of rates fixed by the Board cannot be declared
ultra vires on the ground of unreasonableness.
However, where the rules are so unreasonable that conscience of no reasonable

person can accept them, they may be struck down. Normally courts apply art. 14
of the Constitution to such cases to have a more firm ground for quashing them.
Air India vs. Nargesh Mirza
A service regulation framed by the Air India which had provided for termination of
services of an air hostess on her first pregnancy was struck down by the Supreme
Court as “most unreasonable and arbitrary and interfering with the ordinary
course of human nature, and hence violative of art. 14 of the Constitution.”
State of Maharashtra vs. Chandrabhan Tale
Rule 151(1)(ii)(b) of the Bombay Civil Service Rules provided that a convicted
government employee, even if he is in the appeal process, will be paid Re. 1
subsistence allowance. The Supreme Court struck down the Rule holding the
subsistence allowance illusory.
Kruze vs. Johnson
In England, Lord Russell laid down the test of unreasonableness of delegated

legislation to be on the following grounds:
1. Partial or unequal operation between classes
2. Manifestly unjust
3. Bad faith
4. Oppressiveness
5. Gross interference with the rights of the people that no justification can be
found in the mind of a reasonable man.
(d) Rules are Mala Fide
The rule-making power given to the government is to be used in good faith for the
benefit of the public and the nation. If it is used otherwise, it may be struck down.
Rule 150-A of the rules framed under the Drugs and Cosmetics Act, 1940 required
the manufacturers of Eau-de-Cologne to add 1% diethylpthalate, a poisonous
substance, to it. Bombay High Court struck down the rule observing that
government cannot enforece its prohibition policy in the guise of prescribing
standards.
(e) Rules encroach upon common law rights of the citizens
Art. 372(1) of the Constitution of India provides, “subject to the other provisions of
the Constitution, all the law in force in the territory of India immediately before the
commencement of the Constitution shall continue in force therein until altered or
repealed or amended by a competent Legislature or other competent authority”.
Many common law rights are codified by the Indian legislatures with or without
modifications. Such rights are available to the people in the form in which they are
codified. Some other rights are removed or nullified by the Indian legislatures.
Such rights are not available to the people. Those common law rights which are
not codified by the Indian legislatures are available to the people in their original
form. Thus most of the rights in Law Torts are common law rights.
Rights may be created, modified or abolished only by legislatures, and not by

executive or judiciary. Therefore, if Rules encroach upon common law rights of
citizens, such Rules are invalid.
Sophy Kelly vs. State of Maharashtra
Schools conduct a preliminary examination before the SSC Board examination.

Only those students who get through the preliminary examination are allowed to
appear for the Board examination.
A rule which required that all students irrespective of their performance in the
preliminary examination must be allowed to appear for Board examination was
held to be ultra vires as it encroaches upon the common law rights of the schools.
(f) Rules Conflict with Some Other Act
Statutes being superior legislation always prevail upon the Rules which are
subordinate legislation, in case of any inconsistency between the two.
Therefore, in Re Delhi Laws Act, it was held that the words ‘any modification or
restriction’ should be given a restricted meaning. The modification can only be a
minor modification which does not alter the provisions of law. The same rule is
applicable in respect of conflict between a Rule and a provision of any statute.
However, if the legislature expressly permits such prevailing of a Rule over a

statutory provision, a Rule may override a statutory provision.
H. S. Bagla vs. State of M. P.
The Supreme Court upheld sec. 6 of the Essential Supplies (Temporary Powers)
Act, 1946 which provided that Rules made under sec. 3 of the Act shall have
validity notwithstanding the fact that they are in conflict with the provisions of any
provision of any statute other than the parent statute, was upheld.
Vague Rules
Rules may also be challenged on the ground that they are vague. Vagueness may
lead to discrimination.
Vice Chancellor, M. D. University, Rohtak
Failure to mention the date of commencement of Rules was held to be ground for
quashing them.
PROCEDURAL ULTRA VIRES

In some cases, the parent Act may, while delegating Rule-making powers to the
Government, prescribe some procedure for making the Rules. This procedure may
be mandatory or directory. If the procedure is directory, not following the
procedure does not affect the validity of the Rules. But where the procedure is
mandatory, failure to follow it invalidates the Rules.
The Rule-making powers are granted to the Government subject to following the
prescribed mandatory procedure. In other words, following the prescribed
mandatory procedure is condition precedent for Rule-making powers. Such
procedure is not a mere formality. It is a safeguard against abuse of powers by the
Gover, and hence is called 'procedural safeguard'.
If such procedure is not followed, the Government will not get powers to make
Rules, and such Rules are ultra vires. Such ultra visres is called procedural ultra
vires, because, it is deemed that the government gets Rule-making powers only if it
follows the procedure, otherwise not.
Usual procedural requirements prescribed by statutes are:
1. Drafting
2. Pre-publication (Ante natal publication)
3. Consultation with Affected Interest
4. Post Publication (Post Natal Publication)
1. DRAFTING
Legislative drafting is a specialised work. It requires skill which can be attained by

special training. Hence, to ensure proper drafting of rules, some statutes require
that the Rules should be drafted by specialised draftsperson.
Such draftsperson should not only be an expert in drafting the Rules, but should
also be in a position to advise the Government about the contents of the Rules,
i.e., what Rules are appropriate, and also whether the Rules will be ultra vires, etc.
2. PRE-PUBLICATION (ANTE NATAL PUBLICATION)

Pre-publication Rules or publication of Rules in draft form is required by several
statutes to ensure that proper Rules are drafted. The rationale behind such
requirement is that the proposed Rules are made known to the affected interest
and their objections and suggestions are received by the Rule-making authority.
Once these objections and suggestions are received, the Rule-making authority
has to consider them while making the Rules. Objections and suggestions may or
may not be received by the Rulemaking authority directly. It may appoint a
subordinate authority to collect these objections and suggestions and forward
them to the Rule-making authority. What is necessary is that the Rule-making
authority has to apply its mind to the objections and suggestions.
The procedure to obtain the objections and suggestions is normally prescribed by

the parent Act. If the parent Act is silent, procedure given under Sec. 23, General
Clauses Act, 1897 which has to be followed.
Sec. 23, General Clauses Act, 1908 prescribes the following procedure:
1. Rules be published in draft form in Official Gazette.
2. Objections and suggestions be invited by a specified date mentioned.
3. Objections and suggestions be considered by the rule-making authority.

The draft Rules must be published in a proper manner. Publication in Official

gazette is accepted as sufficient publication. Further, sufficient time has to be
given to submit objections and suggestions. The notification should clearly
mention the designation and address of the officer who will receive the objections
and suggestions.
3. CONSULTATION WITH AFFECTED INTEREST

Many statues, especially those concerned with environment, require that the Rule-
making authority has to consult the affected interest and receive their objections
and suggestions. This procedure has the advantage over the pre-publication in
that in this procedure there is a two-way communication.
Some statutes require that before drafting Rules some specialist body, such as Tea
Board, which has the expertise in the field and represents the affected interest or a
regulatory authority, such as SEBI or Bar Council, should be consulted. Whether
non-compliance with such requirement renders the Rules invalid depends upon
whether the requirement is mandatory, which in turn depends upon provision for
adverse consequences in case of non-compliance.
I. P. Massey lists five such requirements:
1. Official consultation with a named body
2. Consultation with administrative boards
3. Consultation with statutory board in charge of the subject matter
4. Consultation with the interested persons
5. Preparation of the Rules by the affected interest.
4. POST PUBLICATION (POST NATAL PUBLICATION)
It is well known that ignorance of law is not excused. This principle is applicable to
Rules as they are law. But for this principle to be applicable the law has to be
brought to the notice of the public through proper publication.
Re Panama Case
Re Panama Case was the eye opener. The relevant NRA Regulations provided for
punishment for offences under the Regulations. It was found that many people
were punished for the offences many years after the repeal of the Regulations
because the repeal was not properly published.
This made the US SC to advise the Congress to maintain a Federal Register and
enter the laws made and repealed in that Register. The laws will come into effect
only when they are entered in the Register.
Similarly in England a statute or Rules come into force only when they are printed
and published by the Queen’s (or King’s) Printer.
Though in India there is no such requirement in Constitution or any statute,

Courts have made it clear that for operation of a law its publication is sine qua
non.
Harla vs. State of Rajasthan
Jaipur Opium Act was enacted, but was never published. Harla was prosecuted for
violation of the Act. It was held that a rule needs publication of some reasonable
sort for being brought into being.
What is required is that the affected persons must know about the creation,
commencement, amendment and repeal of laws. Only then they will be able to
abide by them. Form of publication is not very important as long as this
requirement is satisfied. Often the parent Act prescribes the mode of publication of
the Rules. If the parent Act is silent, even then publication is mandatory, and
publication of the Rules is Official Gazette is taken as sufficient publication. The
question that arises normally is whether requirement as to the mode of
publication in the Parent Act is mandatory.
Raza Buland Sugar Mills vs. Rampur Municipality
The parent Act required that the Rules must be published in Hindi language in
Hindi newspapers. But the Rules were published in Hindi language in Urdu
newspapers. It was contended by the Government that Urdu newspaper was
chosen because it had better circulation. Court upheld this contention as the
publication met the object.
Bangalore WCS Mills vs. Bangalore Corporation
The parent Act required that the amendment to the Rules made under it shall be
published in local newspaper. The amendment to the Rules was individually
intimated to the affected persons, the Court upheld the publication though it was
not in conformity with the mode prescribed by the parent Act.
Govindalal vs. A. P. M. C.
The statute prescribed that the Rules have to be published in Official Gazette as
well as in two local newspapers. The question was whether the publication in
Official Gazette was sufficient, or the publication in the newspapers was
mandatory. It was held that the answer to this question depends upon several
factors:
1. Language of the Statute: If the statute uses the term shall, it is presumed, but
not conclusive, that the mode is mandatory.
2. Affected Interest: If the affected interest is semi-literate persons like

agriculturists, labourers, publication in newspapers may be mandatory, as
publication in Official Gazette will not properly reach them.
3. Consequences of Breach: If the consequences of breach are severe, such as

criminal liability in the person contravening the Rules, publication in
newspapers is mandatory.
In the instant case, the Rules of Agricultural Produce Marketing Corporation were
applicable mainly to agriculturists and the consequences of breach entailed
criminal liability, Court held that publication in Official Gazette is not sufficient.
G. Narayana Reddy vs. State of A. P.
G. Narayana Reddy is a peculiar case. A Government notification increasing the

rate of sales tax was published in the Official Gazette dated 1 st December, 1966.
The petitioner was prosecuted for contravention committed by him on 10 th

December, 1966, apparently after the publication. His contention was that he and
other subscribers received the copy of the Gazette on 25 th December. Hence the
date of commencement of the Rules must be 25 th December.
Court did not accept this contention. But it was observed by the Court that though
the date printed on the Gazette was 1 st December, the Gazette was actually printed
and published on 12 th December. Hence, Court held that the date of
commencement of the Rules was 12 th December and not earlier.
However, Courts need not strike down Rules which are not published.
Kishori Lal vs. State of UP
Excise Rules were treated as directions as they were not published as required by
the parent Act.
EFFECT OF RULES BEING ULTRA VIRES
Ultra vires Rules are invalid and hence void. They are considered as to have never
existed at all. The same cannot operate as estoppel nor can it be validated by
ratification.
Bar Council of India vs. Surjeet Singh
Advocates Act empowers the Bar Council of India to make rules for prescribing
qualifications and conditions entitling advocates to vote at elections to the Bar
Council. Rules made by State Bar Council in this respect were held to be void and
could not be revived by the ratification of the same by the Bar Council of India.
However, where the authority has no powers to make Rules, but has powers to
issue directions in the same matter, the Courts may examine whether the
provisions which are invalid as rules may be held to be valid as directions. But
such a finding may not be given where it puts public to unnecessary hardships.
ATTEMPTS TO EXCLUDE JUDICIAL REVIEW

The legislatures as well as executive have often tried to exclude the jurisdiction of
the Courts so as to avoid judicial review, by using various clauses in the Rules and
the parent statutes. Courts have also used their ingenuity to foil such attempts
either in entirety or in part.
EXCLUSION BY DELEGATED LEGISLATION ITSELF

Jurisdiction of Courts can be fixed only by legislatures. Only legislatures can
create, change or bar the jurisdiction of Courts. Neither the executive not the
judiciary can exercise these powers, as they are the essential legislative functions.
Therefore, Rules cannot take away jurisdiction of Courts.
EXCLUSION BY PARENT ACT

Legislatures can bar or abridge the jurisdiction of the Courts. But this is subject to
two limitations:
1. A statute cannot bar or abridge the jurisdiction of a Court where such

jurisdiction is under the Constitution. Thus, writ jurisdiction of the higher
judiciary cannot be barred by a statutory provision. It may be affected only by
an amendment to the Constitution.
2. Where a statute bars the jurisdiction of a Court, it must create an alternative

forum to decide cases in respect of which the jurisdiction of Courts is barred.
Chestor vs. Bateson
The parent statute empowered the government to make rules for public safety and
successful prosecution of war. The delegated legislation made in pursuance of this
power provided that no premises can be recovered from the possession of any
workman employed in the manufacture of war material and imposed a penalty for
taking legal proceedings in this behalf. The Court held the provision bad for
preventing people from having recourse to Courts of law.
Other common efforts to avoid judicial review of delegated legislation can be

classified as under.
1. Derivative Immunity
(a) ‘As if Enacted’ Clause
(b) Protection Under Art. 31-B of the Constitution
2. ‘Conclusive Evidence’ Clause
3. “Ganga” Clause
Legislative Attempts to
Exclude Judicial Review
“Conclusive Evidence”
Derivative Immunity “Ganga” Clause
Clause
“As If Enacted” Protection Under

Clause Art. 31-B
I. DERIVATIVE IMMUNITY
This is so called because the delegated legislation inherits the immunity from the
parent statute. In other words, the immunity enjoyed by the parent statute is also
enjoyed by the delegated legislation. Two such attempts are described below.
1. “As if Enacted” Clause
In England the Parliament is supreme and its acts cannot be called in question
before any Court of law. Therefore, if the delegated legislation is to be treated “as if
enacted by the Parliament”, then the natural consequence is that the delegated
legislation also cannot be subject to judicial review.
Institute of Patent vs. Lockwood
In this case Lord Herschell held that if the delegated legislation is to be treated “as
if contained” in the parent statute, hence “as if enacted by the Parliament”, it
should be treated so for all purposes, including the judicial review. Therefore, it
cannot be brought under the scrutiny of the Courts. This ruling is called the
“Herschell Doctrine” or the “Lockwood Doctrine”.
This decision was widely criticised by the jurists as well as judges as it gave
blanket powers to the executive to make any rules of its choice without the worry
of judicial review. This decision was overruled in Minister of Health vs. R ex. p.
Yaffe.
Minister of Health vs. R ex. p. Yaffe
Normally a rule-making clause provides that “the government may make Rules for
giving effect to the provisions of this statute”. The “as if enacted” clause provides
that “the Rules so made shall be treated as if enacted by the legislature”. “Rules so
made” means Rules which are intra vires the parent statute. Ultra vires Rules are
not “Rules so made” i.e., Rules made under the statute.
Therefore, in this case the Court held that before allowing the immunity to the
Rules, the Court has to ensure that the Rules are intra vires the parent statute.
Therefore, to that extent, the judicial review cannot be excluded.
In India laws made by the Parliament itself are amenable to the judicial review by
the higher judiciary. Therefore, “as if enacted” clause cannot exclude the judicial
review of the delegated legislation. Initially in some cases such as R. Subba Rao
vs. CIT, Orient Weaving Mills vs. UoI, Supreme Court applied Herschell Doctrine
and held that the Rules cannot be reviewed by the Courts. But quickly it overruled
these decisions and in State of Kerala vs. Abdulla & Co. held that such a clause
does not attach any additional sanctity to the Rules.
Chief Inspector of Mines vs. K. C. Thapar
Court reiterated its decision and held that by use of expression “as if enacted” the
subordinate legislation does not lose its character of being subordinate to the
parent statute and the formula does not bestow any additional sanctity to
subordinate legislation.
2. Protection of Parent Act Under Art. 31-B
Art. 31-B seeks to protect the Acts and Regulations specified in the IX Schedule,
and their provisions, from being held to be void on the ground that they violate or
abridge fundamental rights.
It has been consistently held that placing the parent statute in the IX Schedule
does not extend the protection to the delegated legislation made under it. This is
also clear from the words of art 31-B ‘Acts and Regulations’, where Regulations
means delegated legislation.
Delegated legislation is considered as extension of the statute under which it is

made. Therefore, normally the principles and law applicable to parent statute is
also applicable to delegated legislation. However, it is a principle of interpretation
of statutes that exclusion of jurisdiction should not be lightly assumed. Exclusion
of jurisdiction should be by express terms or by necessary implication.
Further, it is also a rule of interpretation of statutes that while interpreting a

provision of law, care should be taken to give meaning to each and every word in
that provision. Therefore, if it is interpreted that Act includes Rules, then in the
expression ‘Acts and Regulations’ the word ‘Regulations’ becomes redundant or
surplus. Therefore, in this expression, ‘Act’ should be interpreted to mean only Act
and not to include Rules. As a result, unless the delegated legislation itself is
placed in IX Schedule, it cannot claim immunity.
Prag Rice & Oil Mills vs. UoI
It was held that art. 31-B saves only the parent statute and not the administrative
rule-making under it.
The same position was reiterated in many subsequent decisions such as Vasanlal
Maganbhai vs. State of Bombay, Latafat Ali Khan vs. State of U. P.
I. R. Coelho vs. State of Tamil Nadu and Others
Now it has been held that even a statute which is placed in the IX Schedule can be
challenged.
II. “CONCLUSIVE EVIDENCE” CLAUSE
Often parent statutes provide that the Rules made under them shall be published
in the Official Gazette and such publication is the conclusive evidence that the
Rules are validly made in accordance with the provisions of the parent statute.
In Trust Mai Lachhmi Sialkoti Bradari vs. AIT it was held that such a clause
cannot protect the Rules from substantive ultra vires.
In Vallbhdas vs. M. C. Akola, it was held that even in case of procedural ultra
vires, the conclusive evidence clause can help the rule making authority only if the
steps not taken are of a minor or directory nature.
III. “GANGA” CLAUSE
This is a type of ‘conclusive evidence’ clause which exonerates the Rules from the
infirmity in making it. Therefore, Supreme Court called this a ‘Ganga’ clause
because just as a dip in river Ganga frees a person of all his sins, the formality
prescribed under this clause frees the Rules of all the defects in making them.
B. K. Srinivasan vs. State of Karnataka
The clause in question provided that any act done or appointment made under the
Rules shall not be called in question before any Court of law merely on the ground
of some procedural irregularity not leading to any injustice to any party. The
clause did not prohibit parties from questioning the validity of the Rules on the
ground of substantive ultra vires, nor on the ground of procedural ultra vires of a
serious nature, inasmuch as the clause referred to procedural irregularity and not
illegality. Further, it did not prohibit parties from challenging the Rules even in
case of minor deviations if the same lead to injustice. Hence the clause was upheld
by the Court.
2. LEGISLATIVE CONTROL
Legislative Control
Direct Control Indirect Control
General Control Special Control
Legislature is the principal in respect of the delegation of the legislative powers

and the delegatee is the agent. Therefore the legislature has always the power to
control the legislative powers of the delegatee. In India the legislative control of
delegated legislation is done mainly in two ways:
1. Direct control
2. Indirect control
1. DIRECT CONTROL
It is so called because it is exercised by the legislature directly while the indirect

control is exercised by the legislature through its committees.
Direct control is further classified into two types of controls
(a) General control
(b) Special control
(a) Direct General Control
Direct general control is exercised by the legislature in the following ways
(a) Through debate on Act containing the delegation of rule making powers.
Members may discuss about the necessity the extent and type of delegation
and the authority to whom the power is to be delegated.
(b) Through questions and notices. Any member of the legislature may ask
questions on any aspect of delegation of legislative powers. If he is not satisfied
by the answer given by the concerned minister, he can give notice for
discussion under Rule 59 of the Procedure and Conduct of Business in Lok
Sabha.
(c) Through resolution and notices in the house. Any member may move a
resolution on motion if the matter regarding delegation is urgent and
immediate and the reply of the government is unsatisfactory.
(d) Through vote on grant. Whenever the budgetary demands of a ministry are
present any member may propose a cut and this proposal gives rise to a
discussion on the exercise of rule making power by that ministry.
(e) Through a private member's bill seeking modifications in the parent Act or
through debate at the time of discussion on the address by the President to the
joint session of the Parliament, the members may discuss the delegation of
legislative powers.
These methods are called direct general control because they can be used for any
other purpose also. They are not restricted to control of delegated legislation only.
(b) Direct Special Control
Direct special control is used for controlling only delegated legislation it is not
useful to control any other matter. Therefore it is called special control.
This control is exercised in the form of the requirement that the rules shall be laid
before the Parliament. This is done in the various ways as under:
1. Laying with No Further Direction;
2. Laying Subject to Negative Resolution;
3. Laying Subject to Affirmative Resolution;
4. Laying in Draft Form Subject to Negative Resolution; and
5. Laying in Draft Form Subject to Affirmative Resolution.
1. Laying with No Further Direction
Here the rules come into effect as soon as they are laid before the Parliament. No
further action on the part of the Parliament is necessary. This requirement is
made only to inform the Parliament about the exercise of the rule making power
given to it by the Parliament.
2. Laying Subject to Negative Resolution
Here the rules come into effect as soon as they are laid before the Parliament but
will cease to have effect if a negative resolution is passed by the legislature.
3. Laying Subject to Affirmative Resolution
This requirement may have two different forms:
(a) That the rules shall have no effect or force unless approved by a resolution of
each House of Parliament;
(b) That the rules shall cease to have effect unless approved by an affirmative
resolution.
4. Laying in Draft Form Subject to Negative Resolution
Here the Rules are required to be placed before the legislature in draft form. They
will come into force after 40 days if no negative resolution is passed before that
date.
5. Laying in Draft Form Subject to Affirmative Resolution
Here the Rules are laid before the legislature in draft form and they will come into
effect only after they are approved by the House.
2. INDIRECT CONTROL
This control is exercised by the Parliament through its Committees. In 1950 the
Law Minister made a recommendation for the establishment of a Committee on
Subordinate Legislation. This was accepted and in December 1953, a Committee
on Subordinate Legislation was appointed. This Committee consisted of 15
members nominated by the Speaker for a term of one year. One of them was
appointed as chair man by the Speaker. If the Deputy Speaker is a member of the
Committee, he will be the chairman. According to Rule 223 of the Procedure and
Conduct of Business in Lok Sabha, the functions of the Committee include the
examination of the following aspects:
1. Whether the Rules are in accordance with the general object of the Act.
2. Whether the Rules contain any matter which should have been incorporated in
the Act and not in the Rules.
3. Whether it contains imposition of Tax.
4. Whether it directly or indirectly bars the jurisdiction of the Court.
5. Whether it is retrospective.
6. Whether it involves expenditure from the Consolidated Fund.
7. Whether there has been unjustified delay in publication of the Rules.
8. Whether the Rules require any further elucidation.
In 1964 a similar Committee was established in Rajya Sabha and this Committee
discharges similar functions as its counter part in the Lok Sabha. These
Committees have scrutinised most of the Rules and have helped in avoiding
unnecessary litigation.
OTHER ASPECTS OF DELEGATED LEGISLATION
POWER TO MAKE RULES CANNOT BE IMPLIED
Ahmedabad Urban Development Authority vs. Sharad Kumar
It was held that power to make rules cannot be implied. Without express provision,
Rules cannot be made. There cannot be any ancillary or implied powers to make Rules.
DELAY IN MAKING RULES – NO WRIT OF MANDAMUS
Supreme Court Employees Welfare Association vs. UOI
Supreme Court has held that writ of mandamus cannot be issued to legislatures
ordering them to enact statutes. The same is applicable to Rules. Writ of
mandamus cannot be issued to an executive authority ordering it to make Rules.
However, if the parent statute requires the Government to make Rules for giving
effect to its provisions, and fundamental rights of individuals are infringed
because of impossibility of implementation of the parent statute due to absence of
Rules, writ of mandamus may be issued to make Rules.
For example, Transplantation of Human Organs Act, 1994 provides that no

transplantation of any human organ can be made without the sanction of a
Committee constituted under the Rules made by the Government under that Act.
If the Government does not frame Rules, the Committee under the Act cannot be
constituted, and consequently transplantation cannot be possible. This may cost
lives of patients who are in urgent need of transplantation. This violates art. 21 of
the Constitution, and writ of mandamus may be issued in such cases calling upon
Government to frame necessary Rules.
POWER TO MAKE RULES INCLUDES POWER TO AMEND OR

REPEAL RULES
Rule-making power implies not only power to make Rules, but also to amend or
repeal the Rules, except where power to amend or repeal are provided separately.
Consequently, where power to amend or repeal Rules is not separately provided,
Rule-making power includes those powers, and hence power to amend or repeal
Rules may be exercised in the same manner as power to make Rules may be
exercised, i.e., conditions etc. are required to be fulfilled in the same manner.
Sec. 21 of the General Clauses Act, 1897 provides as under:

“21. Power to issue, to include power to add to, amend, vary or rescind
notifications, orders, rules or bye-laws. Where, by any Central Act or Regulation,
a power to issue notifications orders, rules or bye-laws is conferred, then that
power includes a power, exercisable in the like manner and subject to the like
sanction and conditions (if any), to add to, amend, vary or rescind any
notifications, orders, rules or bye-laws so issued.”
RETROSPECTIVE OPERATION OF DELEGATED LEGISLATION
Legislatures are competent to make laws with retrospective effect, except in case of
criminal laws. Art. 20 of the Constitution prohibits retrospective criminal laws.
Art. 20 is also applicable to delegated legislation also. Therefore, if a Rule makes a

provision of penal nature, it cannot be retrospective in operation.
Unlike legislature, executive cannot make retrospective laws by default. This has
been consistently held by the Courts in many cases.
ITC Bhadrachalam Paper Boards vs. Mandal Revenue Officer
This is one of such cases in which this rule was reiterated by the Supreme Court.
But where the parent statute permits making of retrospective Rules, Courts have
upheld retrospective Rules.
B. S. Yadav vs. State of Haryana
But, in it was held that just because the parent statute permits making of
retrospective Rules, Rules may not be made with retrospective effect. There must
be some reason for making the Rules with retrospective effect.
A. V. Nachane vs. UOI
It was held that by making rules with retrospective effect, judgement of High Court
in a Writ Petition cannot be undone.
Retrospective Rules Under Art. 309 of the Constitution
Art. 309 of the Constitution provides that the service of Government servants shall
be governed by the laws made by the legislature. In the absence of the laws made
by the legislature, Government may make Service Rules to govern the conditions of
service of the Government servants.
B. S. Vadera vs. UoI
It was held that such Rules being substitute for the laws made by legislature, can
be retrospective in operation.
B. S. Yadav vs. State of Haryana
It was held that the Rules cannot be made with retrospective effect so as to violate
arts. 14, 16 or 31.
T. R. Kapoor vs. State of Haryana
Supreme Court observed, “But the date from which the are made to operate must
be shown to bear, either from the face of it or by extrinsic evidence, reasonable
nexus with the provisions contained in the Rules, especially when the retrospective
effect extends over a long period of time …”
CONTINUANCE OF RULES AFTER REPEAL OF PARENT ACT

As Rules are made under a statute, and normally for giving effect to the statute,
they cannot survive the parent statute. But, nothing prevents legislature to
provide that the Rules will continue for certain purposes even after the repeal of
the parent statute.
EXPLANATORY NOTES
Often while making the Rules, the Rule-making authority does not realise certain
practical difficulties in implementation of the Rules. When such difficulties are
realised, the Rules are amended.
But in some cases, instead of amending the Rules, the authorities may append
explanatory notes to the Rules. Depending upon the circumstances such notes are
held to be legislative or executive in nature
Tara Singh vs. State of Rajasthan
The notes had a legal effect similar to those of the Rules themselves. The purpose
of the explanation was to provide procedure, control discretion and fill up gaps
where the Rules were silent.
K. Challaiah vs. Industrial Finance Corporation of India
Regulation 33 of the Industrial Finance Corporation of India is an independent and

self contained provision and procedural formality prescribed in Explanation III
cannot whittle down the scope of Regulation 33.
The same position was reiterated in UOI vs. Charanjit Gill where too the notes
were held to be administrative in nature.
A close examination of the following two cases can give the reason for the different
judgements in the above cases.
Naga People’s Movement of Human Rights vs. UoI
It was held that executive instructions issued to fill up gaps in statutory provisions
have binding force.
Parameshwar Prasad
It was held that such directions can be issued only by the authority having power
to make Rules.
Therefore, it may be concluded that to acquire the nature of Rules, the notes must
satisfy the requirements of a valid Rule. Naga People’s Movement of Human Rights
suggests that the notes should not be in conflict with the statute or Rules.
Parameshwar Prasad suggests that the notes may be made only by the authority
having Rule-making powers.
In other words, when the notes are treated as Rules, there should not suffer from
substantive ultra vires. On the same lines we may also conclude that if any
procedure is provided for making the Rules, the same should be followed in
making the notes, otherwise when treated as Rules they will suffer from
procedural ultra vires.
SUB-DELEGATION OF LEGISLATIVE FUNCTIONS
Sometimes the delegatee further delegates the power to make rules. Such
delegation is held to be ultra vires unless specifically provided for under the
statute.
Ganapati Singhji vs. State of Ajmer
Sec. 40 of the Ajmer Laws Regulation, 1877 empowers the Chief Commissioner to
make rules regarding “the maintenance of watch and ward, and establishment of
proper system of conservancy and sanitation at fairs and large public assemblies”.
Rule 1 prohibited holding of fairs except under a permit issued by the District
Magistrate who had to “satisfy himself before issuing a permit that the applicant
was in a position to establish a proper system of conservancy, sanitation, and
watch and ward at the fair.”
Rule 1 further provided that the District Magistrate could “revoke any permit
without assigning any reason and without giving prior notice”. The delegation of
powers by the Chief Commissioner to the District Magistrate was held to be ultra
vires.
Hari Shankar Bagla vs. State of Madhya Pradesh
Sec. 3 of the Essential Supplies (Temporary Powers) Act, 1946 empowered the
Central Government to make Rules and sec. 4 empowered the Central Government
to delegate this power to any authority. This was upheld as the statute itself can
empower the delegatee to sub-delegate.
Sub-delegation is ultra vires under the maxim delegatus non potest delegare, but
one of the exceptions to the rule is consent of the principal.
WAIVER OF RULES
Where no power is expressly provided in the statute to relax or ignore a Rule,

waiver or relaxation of Rules by an administrative authority will be void, as the
same may lead to arbitrariness, which in turn may lead to discrimination.
CHAPTER III
QUASI LEGISLATION
• Quasi Legislation
• Quasi Legislation and Delegated Legislation
• Identification of Quasi Legislation
• Enforceability of Quasi Legislation
QUASI LEGISLATION
Functions of executive are innumerable. They are to be discharged by the
Government through its various departments. Each department consists of many
officers. Officers belonging to the same cadre may be working at different places.
All these officers must work in a uniform manner. In this regard the Government
issues orders to the officers prescribing a uniform procedure to be followed or a
uniform interpretation of the provisions of law to be made by the officers
concerned.
Similarly, in every department, higher authorities issue orders to their

subordinates. Such orders may be special or general in nature. Special orders are
applicable to only one or few officers, while general orders are applicable to all the
officers of a particular class.
Therefore, a general order or direction looks like a law. But as it is not actually a
law, it is called quasi law or quasi legislation. They are also called ‘administrative
directions’ or simply ‘directions’. The function of issuing directions is called the
quasi legislative function.
DELEGATED LEGISLATION AND QUASI LEGISLATION

Directions often look like Rules because of their general nature. But there are
several significant differences between directions and Rules.
1. Rules may be made only where the legislature delegates its powers to the
executive through a statute. Directions may be issued by the executive
authorities in exercise of their administrative powers, especially under art. 73
in case of the Union Government and art. 162 in case of the State Government.
2. Rules are made by the executive as an agent of the legislature. Directions are
issued by the executive in its own capacity as executive.
3. Rules may be deemed to be the act of legislature (act of an agent is act of

principal). Therefore, they are laws. Directions are not laws. They are quasi law.
4. As Rules are law, they are binding on the Government as well as the
individuals. But directions are not so binding.
5. Rules can be enforced in a Court while directions cannot be.
Because of these significant differences, it has become mandatory, though very

difficult, to identify and differentiate directions from Rules. The following factors
are considered for distinguishing directions from rules.
1. NOMENCLATURE
Prima facie, name of a document is the convenient way of identifying its nature.
Delegated legislation in majority of cases is called Rules. e.g., Registration Rules,
Motor vehicle Rules, etc. But directions are issued under a wide variety of names.
Sometimes they are called Orders, sometimes they are called Notification,
sometimes they are called Circular, sometimes they are called Regulations, etc.
Even terms like Notice, Scheme, Rules, Code, Statute, etc. are used. This makes it
difficult and also unreliable to identify a document from its name.
Uttar Pradesh vs. Kishori Lal
The Excise Rules were held to be directions.
A. Prabhakar Reddy vs. State of Karnataka
Similarly, in this case, the Karnataka Medical Colleges (Selection for Admission)
Rules were held to be directions. Grant-in-Aid Code is not a statute, but is a quasi
legislation.
Sometimes, as we have observed supra, Courts try to avoid quashing of ultra vires
Rules if they can be sustained as directions. This has a peculiar effect of resulting
in designating a part of an instrument as Rules while another part of the same
instrument as directions, and also in designating two identical documents
differently – one as Rule and the other as directions.
Thus, Chapter XXIII of the U. P. Police Regulation which deals with ‘Disciplinary
Proceedings in Police Force’ was held to be delegated legislation in U. P. vs. Babu
Ram, while Chapter XI of the same Regulation dealing with the ‘Mode of
Investigation by the Police into Criminal Charges’ was held to be quasi legislation
in Niranjan Singh vs. U. P.
Similarly Chapter XX of the U. P. Police regulation empowering the Police to

interfere with personal liberty of an individual was held to be quasi legislation in
Kharak Singh vs. U. P., while identical part of M. P. Police Regulation was held to
be delegated legislation in Govind vs. M. P.
2. SOURCE OF AUTHORITY
Therefore, it is safer to look into the source of authority under which the relevant
instrument is made. In case of delegated legislation, the rule-making clause under
which the Rules are framed is usually mentioned. If such authority is shown, the
instrument can be identified as delegated legislation. However, not mentioning the
authority does not mean that the instrument is a quasi legislation, because
Quasi Legislation 67
mentioning of authority is not mandatory and not mentioning it does not

invalidate the delegated legislation.
3. PROCEDURAL REQUIREMENTS
Where, for making Rules some mandatory procedure is prescribed, and the
Government has followed that procedure while making the instrument,
presumption is that the instrument is delegated legislation.
If the instrument does not disclose the authority under which it is made and no
mandatory procedure is prescribed for delegated legislation in the statute, it is
very difficult to identify the instrument.
In such cases, it is suggested2 that one has to observe the following four things in
relation the given instrument.
1. Does the instrument in question impose obligations on individuals?
2. Is it merely informational or procedural in content and deals only with matters

of administration?
3. Does it impose obligations on the administration?
4. Does it confer rights or privileges on the individuals?
If the first two questions are answered in the affirmative, the Courts prefer to hold
that they are directions. Thus, the interest of the individuals may be better
protected.
If the last two questions are answered in the affirmative the instrument is treated
as Rules so that individuals can enforce it.
DELEGATED LEGISLATION TREATED AS QUASI LEGISLATION
Where the rules purported to be made by the government turn out to be ultra
vires, in some cases they may be treated as directions.
For example, where the rules which are to be made by following some mandatory
procedure are made without following it, the courts may, instead of striking them
down, may examine the possibility that they may be considered to be directions.
This is possible if the government has power to make such directions and the
same are in favour of the individuals.
2 Principles of Administrative Law by M. P. Jain and S. N. Jain.

Similarly, where the provision confers power to make rules to give effect to the
provisions of the statute, and the rules made by the government cannot be said to
give effect to the provisions of the statute, the same may be held to be directions if
they may be valid as such.
ENFORCEABILITY OF QUASI LEGISLATION
General rule is that quasi legislation being an administrative act, is not

enforceable in the courts of law. Remedy against breach of quasi legislation is
administrative and not judicial.
Kumari Regina vs. A. E. H. School
Where the Grant-in-Aid Code required that the teachers must be paid salaries
which shall not be less than the minimum prescribed, violation of the requirement
was held to be not justiceable.
J. R. Raghupathy vs. State of Andhra Pradesh
The State Government had the statutory power to decide the locations of mandal
headquarters. Government asked the Collectors to send proposals for this purpose
for the consideration of the government. He government issued certain guidelines
for making proposals. It was held that these guidelines are departmental in nature
and hence cannot be enforced.
Raman and Raman vs. State of Madras
It was held that even where the directions are issued under a statute, they are not
rules and cannot have the status of law, hence cannot be enforced.
S. K. Agarwal vs. State
Orissa High Court held that non compliance of Orissa Forest Code by the
concerned officers does not confer upon the individual any justiceable right.
Vidadala Harinadhababu
Similarly in this case, Andhra Pradesh High Court held that a breach of executive
instruction laying down the procedure to be followed by the government officers in
the matter of granting leases of forest lands for cultivation confers no right on a
person adversely affected by its non-compliance.
The same is the view of Kerala High Court in I. Co-operative Society vs. K. Service
Co-operative Bank.
However, if such non-compliance results in discrimination, it will be violation of

art. 14 of the Constitution and the Courts will intervene.
EXCEPTIONS TO NON-ENFORCEABILITY OF QUASI LEGISLATION
Thus, there are several exceptions to this rule.
1. Breach of Provision of Statute;
2. Breach of Contract;
3. Where Doctrine of Estoppel is Applicable;
4. In Service Matters where Directions are Issued in Lieu of Rules;
5. Where Doctrine of Legitimate Expectation is Applicable;
6. Where Following or Not Following the Direction Amounts to Discrimination;
7. Directions are Inconsistent with Statute or Rules;
8. Directions Coming in the Way of Statutory Powers;
9. Directions Supplementing Statutes or Rules;
10. Directions Issued for Interpreting a Statute or Rules;
11. Directions are Illogical, Irrational, Unfair or Unjust;
12. Directions are Vague;
13. Directions Affect Individual Rights;
14. Directions in Pursuance of Policy Matters;
15. Directions in Respect of Exercise of Discretionary Powers;
16. Directions are Issued in Respect of Quasi Judicial Functions.
1. Breach of Provision of Statute
Breach of the direction may amount to breach of a provision of a statute also. In

some cases a statute provides for issuing of directions by the Government or some
authority to the officers, and further provides that such directions are binding on
the officers to whom they are issued. In such cases not following the directions not
only amounts to the violation of directions, but also of the statute.
Ellerman Lines vs. CIT
Under sec. 5(8) of the Income Tax Act, 1922 provided that all officers shall observe
and follow the orders, instructions and directions of the Central Board for
Revenue.
Therefore, not following the orders, institutions and directions of the CBR is not
only the violations of such orders, instructions and directions, but also of sec. 5(8)
of the Income Tax Act, 1922.
K. M. Shanmugam vs. SRVS Ltd.
Sec. 47 of the Motor Vehicles Act, 1939 provided that an RTA, while considering an
application for a stage carriage permit, is enjoined to have regard, inter alia, to the
interest of the public generally.
Sec. 43-A of the Motor Vehicles Act, 1939 (as applicable to Madras) empowered the
State Government to issue such orders and directions of a general nature as it may
consider necessary, in respect of any matter relating to road transport, and the
transport authority concerned “shall give effect to such orders and directions”.
Hence, it was held that the breach of direction also amounts to breach of statute,
and hence can be enforced.
2. Breach of Contract
Breach of the direction may lead to breach of contract. Where the government has
entered into an agreement with a third party and issued a direction to the officers
of a department to do certain acts in pursuance with the contract, breach of such
direction amounts to breach of contract with the third party.
3. Where Doctrine of Estoppel is Applicable
Where there is a promise on the part of the Government through a Scheme, and
the authorities do not follow the scheme, the aggrieved party may approach a
Court for redressal of his grievance. In such case, the government may be
estopped from taking defence that the scheme is not binding on it.
UOI vs. Indo-Afghan Agencies
Export Promotion Scheme declared by Textile Commissioner provided for certain

incentives to the textile exporters. The respondent, in order to avail the benefit
under the order, exported sizeable quantity of goods. However, he was given only a
small fraction of the benefit to which he was entitled under the Scheme.
Held, the government was estopped from contending that the respondent could not
seek to enforce the Scheme as the same was administrative in nature.
4. In Service Matters where Directions are Issued in Lieu of Rules
Where the Government has powers to make Rules and also to issue directions in
respect of the same subject matter, it is entirely within the discretion of the
Government to make Rules or to issue directions. If the Government makes Rules,
they will have the effect of law and be enforceable. If the Government issues
directions, they will be quasi legislation and will not be enforceable.
Therefore, in order to avoid enforceability, Governments often avoid making Rules

and issue directions in lieu of Rules. This is legally valid.
But in case of service matter if directions are issued in lieu of Rules, they will be
treated as substitute for Rules and will be held to have the same effect as Rules.
This is because service matter is an utmost important matter which deals with
thee livelihood of the Government servant and his family.
UOI vs. K. P. Joseph
Government issued an office memorandum providing for fixation of salary of re-

employed personnel. The respondent claimed a right under it, but the government
refused. When challenged before the Court government resisted on the ground that
it was only an administrative order and is not justiceable.
Supreme Court rejected the contention of the government and issued mandamus
to enforce office memorandum.
UoI vs. Soma Sundaram
In 1976 Government of India issued an office memorandum consolidating all the

previous instructions governing the functions and procedures of departmental
promotion committees.
It was held that these matters may be regulated by laws made by legislatures or by
the rules made by the governments under relevant statutes, or by directions
issued by the governments under art. 73 or art. 162 of the Constitution. Where
there is a law made by the legislature, it will be the one which will be governing the
matter.
If there are rules and instructions, rules will prevail over instructions. Where there
are neither rules nor laws made by legislature, the instructions will take their
place and will be binding.
5. Where Doctrine of Legitimate Expectation is Applicable
Here a direction which is being followed consistently and uniformly is deviated

from. Where directions are consistently followed over a period of time, it gives rise
to legitimate expectation in the mind of a person that the direction will be followed
in his case also. If the direction is not followed in his case, the deviation belies his
legitimate expectation. Hence, the Courts enforce the direction so that the
legitimate expectation is not belied.
Baleshwar Dass vs. State of Uttar Pradesh
An office memorandum regulating seniority in certain government posts was held

binding on the government as the same was uniformly by the government for over
two decade.
However, if the directions are illegal, however long may be their usage, they will
not become enforceable.
6. Where Following or Not Following the Direction Amounts to Discrimination
Selective following or not not following a direction leads to arbitrariness and hence
discrimination between similarly positioned persons, which in turn violates art. 14
of the Constitution.
Mannalal Jain vs. State of Assam
Assam Food Grains (Licensing and Control) Order, 1961 laid down five
considerations for the licensing authorities to keep in mind while granting or
refusing to grant licences. One of the considerations was that a co-operative
society was to be given preference. Government issued another circular directing
that only a particular co-operative society should be preferred and no other. This
was held to be invalid, as it amount to discrimination.
A. Perikaruppan vs. Tamil Nadu
Order for selection of candidates for admission to medical colleges was held to be
bad for not following the criterion laid down in a government direction.
7. Directions are Inconsistent with Statute or Rules
Statues and Rules being laws, always prevail upon directions which are not law.
As a result, directions cannot change law. Any direction intended to change law
will be invalid in itself.
V. T. Khanzode vs. RBI
Basis of seniority prescribed by the Rules was sought to be altered by directions.

The directions were held to be invalid as directions cannot change the law.
S. L. Sachdeva vs. UoI
The Court observed, “No one can issue directions which, in substance and effect,
amendment of the Rules made by the President under art. 309. That is
elementary.” Government contended that the direction in question was aimed at
further and better implementation of the Rules and not to amend them. But the
Court did not accept the contention and held that the directions had the effect of
amending the Rules and not merely supplementing them. “Any direction that goes
beyond it and superimposes a new criterion on the Rules will be bad as lacking in
jurisdiction”.
Karnani Properties Ltd. vs. Calcutta Municipal Corporation
Directions conflicting with the parent statute or any other statute cannot be
operative and have to be ignored even though they have been followed for long,
have been found to be convenient and have worked well. No one is obliged to
observe them any longer.
8. Directions Coming in the Way of Statutory Powers
Directions which form obstruction in the exercise of a statutory powers are

necessarily in conflict with the statutory provisions which bestows such powers
upon the authority. Hence, such a direction will be invalid, even if it is issued by a
higher authority.
N. P. & A. vs. UoI
Government of India has promulgated the Imports (Control) Order, 1959 in the
exercise of the powers conferred on it by secs. 3 and 4(a) of the Imports and
Exports (Control) Act, 1947. This Order, being a statutory order, is equivalent to
Rules.
Rule 10-C of the Order empowers the Chief Controller of Imports and Exports to
issue directions regarding the sale of such imported goods as could not be utilised
by the licensee for the purpose for which they were imported.
Apart from the Order, the Government of India also issued certain directions under
administrative powers relating to the same aspect. Allahabad High Court held that
the directions cannot override the Order.
9. Directions Supplementing Statutes or Rules
Sometimes directions are issued to supply gaps in statutes or Rules. If such

directions do not conflict with the statute are Rules in respect of which they are
issued and are issued by an authority having power to make those Rules, then
they are treated as if part and parcel of the such Rules.
Naga People’s Movement of Human Rights vs. UoI
It was held that executive instructions issued to fill up gaps in statutory provisions
have binding force and
Parameshwar Prasad
It was held that such directions can be issued only by the authority having power
to make Rules.
State of Maharashtra vs. Jagannath
Government of Maharashtra issued Service Rules on 1.1.1962. A service Rule

preserved the power of the Government to dispense with or relax the requirements
of any service Rule “if it causes hardship in any particular case”. It was held that
the Government could not restrict the operation of the Rules by issuing executive
instructions. It was observed, “Executive instructions can supplement but not
supplant the Rules”.
10. Directions Issued for Interpreting a Statute or Rules
In the guise of interpreting statute or Rules the provisions sought to be interpreted

cannot be undermined. Any such direction will be held to be invalid.
Director General of Posts vs B. Ravindran
It was held that clarificatory instructions cannot supersede or take away the right
itself under the Regulation sought to be clarified.
11. Directions are Illogical, Irrational, Unfair or Unjust
Such directions may be applied arbitrarily leading to discrimination and hence are
always held to be violative of art. 14 of the Constitution.
State of Andhra Pradesh vs. U. S. V. Bararan
Reservation of 40% seats for HSC students in CET was held invalid.
12. Directions are Vague
Vague directions are directions which have no specific meaning, and can be
interpreted in any manner as per the convenience of the officer applying them,
which again leads to discrimination and hence such directions are hit by art. 14.
13. Directions Affect Individual Rights
Rights of individuals can be taken away or abridged only by legislature and not by
executive. Any direction affecting rights of individuals can be successfully
challenged as invalid.
N. K. Pankaja Kshan Nair vs. P. V. Jayaraj
It was held that the right of consideration for promotion accrued under statutory
Rules cannot be taken away by administrative instructions.
But they may be validated by subsequent law.
I. N. Saxena vs. State of M. P.
A civil servant was retired by administrative direction. Subsequently, an ordinance

was issued by the Governor on the same terms. It was held that the retirement
cannot be quashed.
14. Directions in Pursuance of Policy Matters
Directions issued in pursuance of policy of the Government can be enforced.
Home Secretary, UT of Chandigarh vs Darshuit Singh Grewal
It was held that policy guidelines or executive instructions are binding till altered.
15. Directions in Respect of Exercise of Discretionary Powers

Discretionary powers are conferred upon an administrative authority or officer, so
that he can apply his mind to the peculiar facts of a case and arrive at a decision.
The power is to be exercised by the authority upon whom it is conferred. In many
cases, even a higher authority cannot exercise the power. Therefore, any direction
issued to the authority exercising discretionary power is invalid.
But if the directions are issued not in respect of a particular case or particular
type of cases, but in the form of general guidelines, the same may be upheld as
valid. Such directions not only bring uniformity in the exercise of discretion by
different authorities, but also bring predictability and certainty in the exercise of
the discretion. People can predict the manner in which the authorities will exercise
their powers. Such directions may also control the use of powers by the
authorities.
Anil Kumar Bhattacharya vs. UOI
Telephone Department issued an instruction to the effect that if the telephone

service to a subscriber remains interrupted for a period exceeding 15 days due to
departmental reasons, he is entitled to a rebate in rent for that period. Gauhati
High Court held that this instruction is enforceable.
16. Directions are Issued in Respect of Quasi Judicial Functions

A quasi judicial body has to function without any interference from anybody. They
are required to use discretion and best judgement in deciding the cases without
any fetters. Hence, no directions can be issued to quasi judicial bodies and
authorities.
B. Rajagopala Naidu vs. State Transport Appellate Tribunal
The Supreme Court gave restricted meaning to sec. 43-A of the Motor Vehicles Act
which empowers the government to issue directions to any authorities.
Accordingly, the phrase ‘any authorities’ does not include quasi judicial
authorities.
Sec. 119 of the Income Tax Act, 1961 specifically provides that CBDT cannot issue
directions to the Assistant Commissioner (Appeals) in the exercise of appellate
functions.
In these cases also directions providing for general guidelines and procedure to be
followed by the quasi judicial authority may be upheld.
PUBLICATION OF DIRECTIONS
As the directions are internal matters of the Government, and are not law, unlike
Rules, which are law, publication is not sine qua non for their validity or
enforceability.
CHAPTER IV
NATURAL JUSTICE
• Natural Justice
• Applicability of Rules of Natural Justice
• Rule Against Bias
• Rule of Fair Hearing
• Exceptions to Natural Justice
• Effect of Failure of Natural Justice
• Rights of Third Parties
NATURAL JUSTICE
Natural Justice is the set of fundamental rules which governs the adjudicatory
functions under the Anglo-American Jurisprudence which is also followed in
India. This concept is so basic that every authority discharging judicial or quasi-
judicial functions must follow these rules. Otherwise, the very jurisdiction of the
authority will be lost. Further, it is partly applicable to the administrative
authorities also.
The law made by the legislature must provide for a procedure to be followed by
these above authorities and that procedure must be in conformity with the rules of
Natural justice. If the law does not provide for any procedure, then following
natural justice is implied. If the law made by the legislature is at variance with
natural justice to that extent the law itself will be invalid. Though natural Justice
is not specifically provided for under our constitution, still the courts have read it
into our constitution and held it to be the part of the basic structure of our
Constitution.
There are two rules of Natural Justice:
1. Rule Against Bias which is based on the maxim “Nemo judex in causa sua” (No
one can be a judge in his own case).
2. Rule of Fair Hearing which is based on another maxim “Audi alteram partem”
i.e., here the other side.
APPLICABILITY OF RULES OF NATURAL JUSTICE
Both the rules of natural justice are applicable to judicial functions, and therefore,
to quasi judicial functions also.
Only the rule against bias is applicable to discretionary functions as it involves

decision making.
Principles of natural justice are not applicable to legislative functions. Therefore,

they are not applicable to delegated legislation which is legislative in nature.
They are not applicable to quasi legislative functions which are similar to
legislative functions.
Principles of natural justice are also not applicable to ministerial functions.

Because these functions do not involve decision making.
In short, to summarise
Functions Applicability of Principles of Natural Justice
1. Quasi Judicial Functions Fully applicable – Both rules are applicable.
2. Administrative Functions
(a) Discretionary Functions Partly applicable – Only rule against bias.
(b) Ministerial Functions Not applicable, as no decision making involved.
3. Quasi Legislative Functions Not applicable, because it is similar to legislative act.
4. Rule-making Function Not applicable, because of legislative nature.
Law made by legislature must provide for a procedure to be followed by these

above authorities and that procedure must be in conformity with the rules of
natural justice.
If the law does not provide for any procedure, then following natural justice is
implied. If the law made by the legislature is at variance with natural justice to
that extent the law itself will be invalid.
Though natural justice is not specifically provided for under our Constitution, still
the courts have read it into our Constitution and held it to be the part of the basic
structure of our Constitution.
RULE AGAINST BIAS
“Nemo judex in causa sua” means that no one can be judge in “one’s own case”
means a case in which one is interested i.e., a case in the outcome of which one is
interested. A person may be interested in a case in many different ways. Therefore,
he will be prejudiced in many ways.
‘Prejudiced’ means arriving at a decision before hearing a case. In other words,

before hearing the case itself the person will have made up his mind to decide the
case in one way or the other instead of arriving at a decision after hearing the
case.
Depending upon different type of interest a person may have in the case, there are
different types of bias which are: personal bias, pecuniary bias, bias as to subject
matter, pre-conceived notion bias and departmental bias.
Natural Justice 81
PERSONAL BIAS
When the deciding authority himself is a party or is related to one of the parties it
is called personal bias. Relationship here means anything such as blood
relationship, relation through marriage, professional or business relation,
friendship, or enmity.
Not only where one of the party is related to the judge, but also where the advocate
of one of the parties is related to the deciding authority, there will be apprehension
in the mind of the party, opposite party that the deciding authority will be
prejudiced.
Even where, the deciding authority himself is a witness, he will be prejudiced

because he will not accept the advance evidence as true even though he is
mistaken about the fact, he will maintain that what he thinks is true, this will
seriously affect the decision in the case.
S. P. Kapoor vs. State of H. P.
In a departmental promotion committee a member was also a candidate. He

himself prepared the confidential reports of some other candidates. It was held
that the proceedings were vitiated by bias.
APSRTC vs. Sathyanarayan Transport Pvt. Ltd.
The petitioner successfully challenged the action of the State Government

nationalising road transport on the ground of personal bias.
In this case, the minister who heard the objections of the private bus owners had
asked the petitioner to persuade the members of the congress party to vote for him
in the elections. The petitioner despite his efforts did not succeed as a result of
which the minister lost the election. In order to take revenge against the petitioner,
the minister floated the nationalisation scheme.
Manak Lal vs. Premchand
Rajasthan High Court appointed a Tribunal headed by a senior advocate of

Rajasthan High Court as Chairman to hear a complaint of professional misconduct
filed by the Premchand against the Manak Lal.
This was challenged by Manaklal on the ground that the Chairman had
represented Premchand in an earlier case. Supreme Court did not accept that the
Chairman will remember his client after so many years, especially because usually
cases are given to High Court advocates no by the clients but by the advocates who
had represented the clients in lower courts.
However, the Court held that if there is any doubt in the mind of the party, and it
is possible to replace the Chairman, it is better to do so, as justice should not only
be done but should be seen to have been done.
A. K. Kraipak vs. Union of India
One Shri Naquishbund, who was acting Chief Conservator of Forests, was a
member of this selection board and was also a candidate for the selection to the All
India Cadre of Forest Service. Though he did not take part in the deliberations of
the board, when his name was considered and approved, the Supreme Court held
that there was a real likelihood of bias for the mere presence of the candidate on
the selection board may adversely influence the judgement of the other members.
Ganga Bai Charities vs. CIT
A lawyer while acting as a special counsel for the Income Tax Department gave an
opinion that an assessee trust was not entitled to the tax exemption. Later he was
elevated as the judge of the High Court and decided the same matter sitting as a
judge. Neither party objected. SC held that there was no real likelihood of bias as a
routine opinion given by a busy advocate will act as bias seven years later.
Fakruddin vs. Principal Custodian
SC held that a judge who was formerly advocate of one of the parties decides a
matter even after objection, there is a real likelihood of bias.
R. Balaksrishna Pillai vs. State of Kerala
SC held that that a judge was an opposing counsel before an enquiry commission
is not sufficient to infer bias. It was observed that though the state of mind of the
person who entertains an apprehension of bias is relevant, but that is not all. That
apprehension must appear to the court as genuine, reasonable and justifiable.
Dr. G. Sarana vs. University of Lucknow
If a party, with full information and knowledge of facts waive their right to object,
later it cannot raise the plea when it suffers an adverse decision.
PECUNIARY BIAS
When the presiding authority is likely to earn some gain by deciding the case in
one way, he is likely to decide in that way, when the judge is likely to suffer a loss
by deciding the case in some other way, he will try to decide the case in opposite
way, in order to avoid the loss. Whenever there is a likelihood of any gain or loss,
however small that gain or loss may be, there is always an apprehension that the
judge will decide the case with a prejudiced mind.
Jeejeebhoy vs. Asstt. Collector, Thane
The Chief Justice reconstituted the bench when it was found that one of the
members of the Bench was a member of the co-operative society for which the land
had been acquired.
Natural Justice 83
J. Mohapatra & Co. vs. State of Orissa
The Supreme Court quashed the decision of the textbook selection committee
because some of its members were also authors of books which were considered
for selection.
R vs. Mulvihill
In a case of bank robbery, the judge who was holding shares in the bank cannot be
said to be biased, as he will not gain or lose anything by deciding the case in one
way or the other.
BIAS AS TO SUBJECT-MATTER
Deciding authority being a human being will be interested in some subject such as
environment, prevention of cruelty to animals etc. However, we cannot say that
the judge will be deciding a case in one way or the other because of such interest
alone. But still there may be an apprehension in the mind of the parties that his
interest will dictate his decision.
However, mere involvement in the subject matter of the case is not enough.
R vs. Deal Justices ex p Curling
It was held that the Magistrate was not disqualified to try a case of cruelty to an
animal on the ground that he was a member of the Royal Society for the Prevention
of Cruelty to animals as that did not prove a real likelihood of bias.
Sub-committee of Judicial Accountability vs. Union of India
Speaker’s actions under the Judges Enquiry Act, 1968 was held to be not invalid
on two grounds, viz., political affiliation is no ground to disqualify him, and
secondly doctrine of necessity is applicable to this case.
PRE-CONCEIVED NOTION BIAS
Deciding authority being a human being will be having his own notions which are
the outcome of his background. So depending on the family background, cultural
background, etc. every person has got his own notion. We cannot expect a
deciding authority to decide a case with a blank mind Therefore; this type of bias
is also unavoidable.
Franklin vs. Minister of Town and Country Planning (Stevenage Case)
The appellant challenged the Stevenage New Town Designation Order, 1946 on the
ground that during the public hearing on the matter, the minister made a remark,
“I want to carry out a daring exercise in town planning”. The gathering shouted its
opposition to this. On this the minister said, “It is no good your jeering! It is going
to be done.”
Hence, it was contended that the hearing was not given with open mind. The
minister had so strong conviction that his mind was closed. The court dismissed
the case on technical grounds, but the contention appears to be reasonable.
DEPARTMENTAL BIAS
If the deciding authority belongs to the same department as one of the parties,
then he will try to protect the party belonging to his department. In many cases
the party to the case represents the department itself and his success will be in
the interest of the department to which the deciding authority also belongs.
Example
In case of sales tax or income tax one of the parties will be a person belonging to a
department against whom the other party makes an allegation that he has charged
an amount of tax which the complaining party is not liable to pay.
If this contention is accepted there will be loss of revenue to the department. If the
deciding authority feels that being an officer of the department he should protect
the interest of the department and pass an order blindly in favour of the party
belonging to his department, there may be injustice.
Krishna Bus Service vs. State of Haryana
The General Manager of Haryana Roadways was conferred powers of a Deputy

Superintendent of Police. This gave him power to inspect vehicles not only of
Haryana Roadways, but of the rival companies also. Therefore, the conferment of
powers was quashed on the ground of departmental bias.
Gullappally Nageswara Rao vs APRTC
The petitioner challenged the road nationalization scheme on the ground that the
Secretary to the Transport Department was the person who initiated the scheme
and it was his duty as the officer of the Department to see that the scheme was
successful, and he was the person who gave hearing to the affected interest.
Therefore, it was contended that the hearing was biased. This contention was
accepted by the Court and the scheme was quashed.
Gullappally Nageswara Rao vs. APRTC (II Case)
After the decision of the Court in the above case, the Act was amended and the
responsibility of hearing was given to the Transport Minister. The scheme was
challenged on the same grounds as above. However, in this case, the Court
rejected the contention holding that the Minister may not be said to be the officer
of the department in the same manner as a secretary is.
Natural Justice 85
Hari vs. DCP
An externement order was challenged on the ground that since the Police
Department which initiated the proceeding and the department which heard and
decided the case were the same, the element of departmental bias vitiated
administrative action.
The court rejected the challenge on the ground that as long as two functions
(initiation and decision) were discharged by two separate officers, no matter that
they were affiliated to the same department, there was no bias.
State of U. P. vs. R. S. Sodhi
It was held that police department should not investigate into fake encounters.
In some other cases the action of one of the officer of the department may be
challenged before a higher authority in the same department. Because of working
in the same department the mentality of both the officers may be same and the
deciding authority may feel that the decision of the subordinate authority is
proper.
Example
A Traffic Police Constable normally feels that college students do not follow traffic
rules, because of his experience of seeing college students generally flouting the
traffic rules. Therefore, he may be biased against college students, and jump to
conclusion that a student has violated the traffic rule without proper reasons.
In such a case if a complaint is made to the Traffic Police Inspector, he, having
even more such experience, may also feel that the Constable is not wrong in
drawing the conclusion against the student.
However, such situations cannot be avoided because the deciding authority should
have expertise and experience in the matter before him which means it is
necessary that he should belong to that department.
Thus, departmental bias may be seen in some cases as personal bias – one of the
parties and the deciding authority belong to the same department. In some other
cases it may be seen as a pre-conceived notion bias.
BIAS ON ACCOUNT OF OBSTINACY
I. P. Massey also quotes The Tribune, reporting a decision of the Supreme Court
wherein a new kind of bias, namely bias arising through unreasonable obstinacy
was discovered.
In the instant case the order of a judge of the Calcutta High Court was reversed by
the Division Bench of the High Court. In a fresh writ petition, the judge validated
his earlier judgement which was reversed by the Division Bench.
CONCLUSION
As it can be seen from the above discussion, the first two types of bias are more
serious in nature but at the same time, they are avoidable. If a judge is having
personal pecuniary bias in the subject-mater of the case, he can refrain from
deciding the case and the matter may be entrusted to some other person to decide.
The latter three are less serious and at the same time unavoidable. Therefore, the
courts show different attitude towards these two categories of bias.
Where there is a personal bias or pecuniary bias, courts will not allow the deciding
authority to proceed with the matter. It is immaterial whether his judgement will
be affected by the bias or not. It is sufficient if there is an apprehension in the
mind of a party that he will not get justice from that authority. This principle is
expressed by the courts by saying that “justice should not only be done but it
must also appear to have been done.” What is seen by the courts is whether there
is a reasonable apprehension or real likelihood of bias and this can be seen at the
beginning of the case itself.
Therefore, a person may take a contention that the deciding authority is biased at
the earliest opportunity. If he fails to take that contention at the earliest
opportunity, it will be deemed that he has waved his right to object and he will not
be able to take up that contention at a later stage or after the decision.
But in the latter three types of bias, the deciding authority will be disqualified from
taking the decision only if he is really biased. In some cases, this bias will be
apparent from the way the hearing is conducted by the deciding authority. But in
majority of cases will be apparent only after the decision is given by the authority.
Therefore, courts prefer to wait until the authority decides the matter and then
examine whether his decision is really affected by the bias. If not the decision will
be valid. The existence of bias can be known only after the decision in the case.
RIGHT OF FAIR HEARING

The second rule of natural justice is that both the parties should be heard before
arriving at a decision in a case. No one shall be condemned unheard.
This rule is often quoted using the Latin maxim, Audi alteram partem, meaning,
Natural Justice 87
according to circumstances, ‘hear the other side’ or ‘hear both sides’.

‘Hearing’ or ‘heard’ means giving opportunity of being heard. If the person uses
that opportunity, he shall be actually heard, else the order may be passed ex
parte.
Hearing to be fair, it should have the following components:
1. Right to Notice
2. Right to Appearance
3. Right to Know Adverse Evidence
4. Right to Present Case
5. Right to Present Evidence
6. Right that Evidence shall not be Collected at His Back
7. Right to Rebut Adverse Evidence
(a) Right to Cross Examination
(b) Right to Legal Representation (Right to Counsel)
8. Right to Report of Enquiry
9. Right to Speaking Order
1. RIGHT TO NOTICE
Right to notice is the fundamental requirement of right to fair hearing. If the party
does not know that some adverse order is proposed to be passed against him and
the facts on which and reasons for which such an action is proposed against him,
he cannot defend his case. To be valid, the notice must mention minimum the
following three things:
1. Date and time of hearing
2. Place of hearing
3. Authority who will hold the hearing
In addition, the allegations against the party and proposed action must be clearly
mentioned.
State of J&K vs. Haji Wali Mohammed
A notice giving 24 hours to demolish a building in dilapidated condition was held

to be too less to be fair.
Joseph Vilangadan vs. Executive Engineer (PWD)
The appellant was given a contract of construction by the PWD. He could not start
the work on time. A notice was given to him stating, “You are, therefore requested
to show cause within seven days from the receipt of this notice why the work may
not be arranged otherwise at your risk and loss through other agencies after
debarring you as defaulter.” He was then debarred from all future contracts under
the PWD. Quashing the order the Supreme Court held that the words “debarring
you as defaulter” did not give adequate notice to the appellant of the fact that he
would be debarred from all future contracts with the PWD.
Appropriate Authority vs. Vijay Kumar
Where the material on the basis of which compulsory purchase of property by the
Income Tax Department was not disclosed in the show cause notice and the venue
of hearing was changed without giving reasonable time to the transferor to reach
the venue, Supreme Court held that there is violation of natural justice.
Ajit vs. G.M., BEST Undertaking
Notice as required under sec. 105-B of the BMC Act, 1888 to an allottee of a
municipal premises need not be given to all persons living with the allottee.
Notice to a large section of public who are generally educated may be given
through publication in newspaper.
Shiv Sagar Tiwari vs. Union of India
Notice published in newspapers to enable out-of-turn allottees of government

quarters in Delhi to represent before the Supreme Court against proposed
cancellation of allotments was held to be sufficient and adequate notice.
However, notice may not be insisted as a mere formality, when the party clearly
knows the facts and will not be prejudiced by failure to give notice.
Keshav Mills Co. Ltd. vs. Union of India
Taking over of the petitioner’s mill by the government for five years was not
quashed by the court merely because there was failure to give notice. This is
because at an earlier stage a full fledged hearing was given to the petitioner and he
was aware of all the facts.
State of Karnataka vs. Mangalore University Non-teaching Employees’

Association
Even if a mistake in decision is to be corrected, if the concerned person has to face

adverse consequences, notice is mandatory.
Union of India vs. Naredra Singh
Cancellation of erroneously given promotion without giving notice is illegal.

Natural Justice 89
Consequences of Non-issuing of Notice
1. Does not affect the jurisdiction of the authority, if reasonable opportunity of

being heard is otherwise given.
2. Issue of notice prescribed by law is sufficient to satisfy the requirements of

natural justice.
3. If prejudice is caused by non issuing of notice, it would vitiate the proceedings.

But only an irregularity in service of notice will not cause such defect.,
especially if the person himself is responsible.
4. The case so vitiated may be cured by starting the proceedings de novo by

issuing proper notice.
5. If the show cause notice contains unspecified, vague or unintelligible

allegations, that will amount to denial of proper opportunity of being heard.
2. RIGHT TO APPEARANCE
The party must be given adequate opportunity to appear before the authority and
present its case. Due to some reasonable cause beyond the control of the party,
the party is not able to appear before the authority on the date of appearance, a
reasonable adjournment may be given to enable party to appear.
3. RIGHT TO KNOW ADVERSE EVIDENCE
Informing a party about the allegations against it is not sufficient. It is also

necessary to inform the party the basis on which those allegations are made. In
other words, the evidence against the party should be brought to the knowledge of
the party.
Dhakeshwari Cotton Mills Ltd. vs. CIT
It was held that unless the relevant statute or rules require, there is no rule that
the material should be supplied in the original form. A summary of the material is
sufficient if it is not misleading. The party may be allowed inspect documents and
make notes.
4. RIGHT TO PRESENT CASE
The party should be afforded an opportunity to present case either orally or in

writing at the discretion of the authority unless the statute provides otherwise.
The opportunity must be given in respect of the case being heard. If it is given in a
casual manner or in respect of some other thing, requirement of audi alteram
partem is not satisfied.
Oral hearing is not an integral part of audi alteram partem except where under the
peculiar circumstances of a case the person will not be in a position to effectively
present his case.
Union of India vs. J. P. Mitter
Supreme Court refused to quash the order of the President in a dispute relating to
the age of of a High Court judge on the ground that the President did not give oral
hearing even on request, and held that opportunity to present case in writing is
enough.
Southern Painters vs. Fertilizers and Chemicals, Travancore Ltd.
It was held that oral hearing is necessary before deletion of the name from list of
approved contractors.
S. L. Kapoor vs. Jagamohan
It was held that the opportunity need not be a ‘double opportunity’ – one on the
allegations and the other on penalty.
5. RIGHT TO PRESENT EVIDENCE
Opportunity to present both testimonial and documentary evidence is a must.
Dhakeshwari Cotton Mills Ltd. vs. CIT
Supreme Court quashed a decision of the administrative authority passed by it

without allowing the assessee to present material evidence.
R. B. Shreeram Durga Prasad vs. Settlement Commission (IT & WT)
The Commission allowed the assessee only to present objections to the statement
of the CIT. Supreme Court felt that the opportunity given to the assessee was
inadequate as there was no opportunity afforded to the assessee to prove his case.
Generally, it is not the obligation on the part of the authority to help the person to
collect or present the evidence.
N. M. T. Co-operative Society Ltd. vs. State of Rajasthan
In an enquiry held under the Motor Vehicles Act for the nationalisation of a road,
the witnesses did not appear before the authority in spite of the summonses being
Natural Justice 91
served upon them. A request for the issue of warrants was rejected. It was held
that there is no violation of natural justice, because their statements were already
on the file of the authority.
A. K. Roy vs. Union of India
It was held that if the detenu wants to examine the witnesses, he has to see that
they are present at the appointed time and give evidence before the concerned
authority. It is not the duty of the authority to summon them.
6. RIGHT THAT EVIDENCE SHALL NOT BE COLLECTED AT HIS BACK
Where evidence is already collected against a party, i.e., before the party appeared
in the case, such evidence should be disclosed to the party. If the evidence is to be
collected after the party has appeared in the case, it is not enough if the evidence
is disclosed to him. The party has a right to be present when the evidence against
him is being collected.
Errington vs. Minister of Health
In 1933 Jarrow Corporation passed a clearance order for the demolition of certain
buildings found unfit for human habitation and submitted the same for
confirmation of the Minister of Health. An enquiry was held and the owners of the
building were given hearing. Subsequently some officers of the ministry went to
the building and collected evidence without the knowledge of the owners. On the
basis of this evidence the order was confirmed.
The order was quashed by the Court, inter alia, on the ground that the evidence
was collected at the back of the parties.
That does not mean that the authorities have no right to collect the evidence in the
manner they consider the best. The only requirement is that the evidence so
collected must be disclosed to the parties and they must be afforded an
opportunity to rebut it.
Hira Nath Misra vs. Principal, Rajendra Medical College
Some girls complained to the Principal of the Medical College about misbehaviour
of boys. Recording of statements of the girls in the absence of the boys by the
inquiry committee appointed by the Principal was held to be not in violation of
natural justice, if the statements were shown to the boys. Court observed that if
the statements were recorded in the presence of the boys, the girls would not have
made frank disclosures out of fear.
See also, Ceylone University vs. Fernando

7. RIGHT TO REBUT ADVERSE EVIDENCE
Right to rebut evidence presupposes that the adverse evidence is revealed to the
party. Where the adverse evidence is not revealed to the party, the party is
naturally denied the right to rebut that evidence.
In other cases, the party should be given the right to cross examine the witnesses
and to confront the documents submitted against him.
Sometimes this cannot be done by the party himself. He needs the assistance of
an advocate. In such cases he may be allowed to be represented by an advocate.
(a) Right to Cross Examination
There are three stages in the recording of the oral evidence of a witness. They are:
1. Examination in Chief;
2. Cross Examination; and
3. Re Examination.
The party who calls the witness will conduct the examination in chief. Then the
opposite party conducts cross examination of the witness.
Cross examination is an important right of a party to a case as it is a guarantee of

truth of the statement of the witness of the other party. It gives an opportunity to
the party to reveal falsity or error in the adverse evidence.
If cross examination could not be conducted the evidence recorded during

examination in chief will also be struck down, unless cross-examination was not
possible due to the fault of the opposite party itself.
State of Kerala vs. Shaduli Grocery Dealer
It was held that the denial of dealer’s request to cross examine the bank officers
who had given evidence against him was denial of natural justice.
Sec. 139 of the Indian Evidence Act, 1872 provides that a person summoned to
produce a document does not become a witness by the mere fact that he produces
it and cannot be cross-examined unless and until he is called as a witness.
On the same analogy, where goods are confiscated on the information given by a
person, such person need not be subjected to cross examination. The principle
Natural Justice 93
behind these rules are that such person is not making any statement, the veracity
of which is required to be tested.
Kannungo & Co. vs. Collector of Customs
The business premises of the petitioner company was searched and 390 watches
were confiscated under the Sea Customs Act from the premises. The customs
authorities did not allow the cross examination of the informer. It was held that
there was no violation of the principles of natural justice.
Where powerful or notorious persons are being tried, most of the persons who can
give evidence against them refuse to become witnesses for security reasons. In
such cases it becomes necessary to protect the identity of the witnesses. Therefore,
their evidence is recorded in the form of affidavits, and copies of the affidavits are
given to the party against whom the evidence is given, by concealing the name and
other details of the deponent. In such cases cross examination is not allowed. This
does not violate the audi alteram partem rule. Doctrine of necessity supports this.
Protection of witnesses is not only in the interest of the witnesses, but also in the
interest of public at large. This is because, if the witnesses are not protected, no
one will come forward to give evidence against powerful or notorious persons, and
as a result they will escape from the clutches of law. This will further encourage
them to commit crimes and anti-social activities.
State of Jammu and Kashmir vs. Bakshi Gulam Mohammed
A commission of enquiry was set up to make certain enquiries in a matter

involving the former Chief Minister of Jammu and Kashmir. The Commission did
not permit the party to cross-examine the witnesses who had given evidence
against him on affidavits. It was held that there was no violation of natural justice.
State of Maharashtra vs. Salem Hussain Khan
Supreme Court held that in the case of a bad charactered person, while passing an
externment order evidence need not be discussed as it may give rise to a fresh
spate of violence against the witnesses.
But where the identity of the witness is already disclosed, denial of right to cross-
examine will be violation of natural justice.
S. C. Girotra vs. United Commercial Bank
It was held that where the witnesses have orally deposed, refusal to allow cross
examination would necessarily amount to denial of natural justice.
(b) Right to Legal Representation (Right to Counsel)
Normally right to legal representation in an administrative proceedings is not

taken as denial of natural justice. In many cases it is discouraged or even
prohibited because presence of a lawyer destroys the essential informality of the
proceedings. Further, there is a tendency to prolong and to complicate the matter.
Moreover, it is felt that allowing lawyers will give an edge to rich over the poor as
the rich can afford better lawyers than the poor.
Factory laws do not permit legal representation, while some laws such as
Industrial Disputes Act, Family Courts Act permit legal representation with the
permission of the Court. Some other statutes like Income Tax Act permit legal
representation as a matter of right.
Though legal representation is restricted or prohibited by the parent Act, natural

justice may still require it in, among others, the following cases:
1. Where the person is illiterate.
2. Where the matter is very complicated and technical in nature.
3. Where the expert evidence is on record.
4. Where the matter is predominantly based on a question of law.
5. Where the person is facing a trained prosecutor.
Nandalal Bajaj vs. State of Punjab
Though sec. 11 of the Black Marketing and Maintenance of Essential Commodities

Act, 1980 and sec. 8(e) of the Conservation of Foreign Exchange and Prevention of
Smuggling Activities Act, 1974 prohibited the legal representation, court held that
legal representation is necessary where the party has to face trained prosecutor.
A. K. Roy vs. Union of India
It was held that if the party is denied legal representation, then the State must also
be denied legal representation.
M. H. Hoskot vs. State of Maharashtra
Provision of legal representation to an indigent accused was held to be a part of

‘fair procedure’ envisaged under art. 21 of the Constitution.
Khatri vs. State of Bihar
Legal representation is mandatory not only during trial, but also at the stage of
remand.
Natural Justice 95
Nandini Satpathy vs. P. L. Dani
It was held that advocates are normally busy, and the police or prosecuting
authorities should wait for a reasonable time for the advocates to arrive.
8. RIGHT TO REPORT OF ENQUIRY
One Who Decides Must Hear
The general import of the rule of fair hearing is that one who decides must hear. If
one authority hears and another authority decides the case, there will be violation
of natural justice as the deciding authority did not hear the party before deciding
the case.
Institutional Hearing
In some cases, especially disciplinary matters, often it is not possible for the
deciding authority to hear the party. In such cases the practice is that the matter
is heard and decided by two officers – one inquiry officer and the other deciding
officer. Here the case is said not be heard and decided by any person but by the
department or institution, and the same is upheld by the Courts.
In such cases, the inquiry officer hears the parties and collects evidence and
makes a report to the deciding officer. Deciding officer, on the basis of the report
and evidence decides the case. It is necessary in such cases that in addition that
evidence should be collected in the presence of the parties and adverse evidence
should be disclosed to the party, a copy of the report of the inquiry officer should
be supplied to the parties so that they may give their comments in respect of the
same.
Union of India vs. H. C. Goel
Inquiry officer found that the charged employee was not guilty of charge of making
an offer of a bribe to his superior officer. UPSC also endorsed the conclusions of
the inquiry officer. Nevertheless the deciding authority rejecting the report of the
enquiry officer held the delinquent officer guilty. This action of the deciding
authority was challenged on the ground that the deciding authority had acted
without evidence.
Supreme Court quashed the order and laid down the following propositions:
1. The inquiry officer holds the enquiry as a delegate of the government.

2. The object of the enquiry is to enable the government to hold an investigation in

to the charges framed against the delinquent, so that the government can, in
due course, consider the evidence adduced and decide whether the said charges
are proved or not.
3. The findings on the merit recorded by the inquiry officer are merely to supply
appropriate material for the consideration of the government. Neither findings
nor recommendations are binding on the deciding authority as held in A. N.
D’Silva vs. Union of India.
4. The inquiry report (Along with the evidence recorded by the enquiry officer)
constitutes the material on which the government has ultimately to act. That is
the only purpose of the inquiry report which the inquiry officer makes as a
result thereof.
Therefore, the report of the enquiry officer is the only material before the deciding
authority in many cases. Where the deciding authority disregards the report or
acts contrary to that material, he is acting without evidence and his decision is
illegal. Therefore, his decision must be based on, and not contrary to, the report.
But in some cases, the report of the enquiry officer may not be the sole basis of the
decision of the deciding authority. It may be only one of the factors on which the
deciding authority may have taken the decision. In such cases the question is
whether the party is entitled to a copy of such report.
Kailash Chandar Asthana vs. State of U. P.
It was held that copy of the report need not be given to the party.
Union of India vs. Mohd. Ramzan Khan
But in this case, Supreme Court held per incurium supply of the copy of report to
the opposite side is mandatory.
Electronic Corporation of India vs. B. Karunakar
Therefore, the matter was referred to a larger bench.
Suresh Koshy vs. University of Kerala
It was held that there is no denial of natural justice because the student had not
specifically asked for the report of enquiry.
Keshav Mills Co. Ltd. vs. Union of India
There cannot be a rule laid down in this regard. Every case should be seen in the
peculiar facts and circumstances of that case. If the non-supply of report leads to
injustice, then the same amounts to denial of natural justice, otherwise not.
Natural Justice 97
Union of India vs. E. Bhashyam
Jusitce Thakkar made an observation that in all cases it should be mandatory that
a copy of the report be given to the party as there may be errors and omissions in
the report.
Local Government vs. Arlidge
House of Lords held that it is not necessary to give a copy of the report to the party
if it is not tendered as evidence against him. In this case, the Hampstead Borough
Council passed a closing order in respect of a dwelling house which was
considered unfit for human habitation. On an appeal to the Local Government
Board by Arlidge, the Minister appointed an inspector to hold an enquiry and on
the basis of the report of that inspector confirmed the order.
In cases of institutional decisions there can be four possibilities.
1. The inquiry report may indict the delinquent and the deciding authority may
exonerate him.
2. The inquiry report may exonerate the delinquent and the deciding authority
may indict him.
3. The inquiry report may indict the delinquent and the deciding authority may
also indict him.
4. The inquiry report may exonerate the delinquent and the deciding authority
may also exonerate him.
In the first and fourth cases denial to give copy of report does not amount to
denial of natural justice. In the other two cases giving a copy of the report to the
party is mandatory.
Failure to Supply Copy of Report
There are many provisions under the Constitution which require compliance of the
rules of natural justice in one from or the other. Art 311(2), for instance, provides
that no government employee can be dismissed or removed or reduced in rank
without giving him a reasonable opportunity of being heard in respect of charges
frames against him. Does failure to give copy of the report amount to denial of
‘reasonable opportunity’?
Satyavir Singh vs. Union of India
Supreme Court has held that art. 14 applies not only to discriminatory class
legislation but also to discriminatory state action. Violation of principles of natural
justice results in arbitrariness grounded in art. 14 of the constitution.
Hence again the question is denial to supply copy of the report amount to violation
of art. 14 of the Constitution?
Sec. 44 of the Constitution (Forty-Second Amendment) Act, 1976
Art. 311(2) requires that no person shall be dismissed or removed or reduced in

rank except after an enquiry in which he has been informed of the charges against
him and given a reasonable opportunity of making representation on the proposed
penalty.
Proviso to the said article provides that if after the enquiry it is proposed to impose
any penalty upon thee person, such penalty may be imposed on the basis of the
evidence adduced in the inquiry and it is not necessary to give a separate hearing
on the proposed penalty.
Before the amendment in 1976, in case of dismissal of a government servant, a

copy of the report had to be sent to the delinquent and invite his comments
thereupon. This stage has been abolished by the said amendment. But where
inquiry is held by one authority and decision is given by another, fairness under
art. 311(2) may require that an opportunity to represent in writing has to be given.
Union of India vs. E. Bhashyan
Second show-cause notice was held to be different from copy of enquiry report.
Premnath K. Sharma vs. Union of India
CAT held that it is mandatory to supply a copy of enquiry report to the delinquent
employee.
9. RIGHT TO SPEAKING ORDER (REASONED DECISION)

There is no requirement in our law that an administrative agency must give
reasons for its decision. If the statute or Rules under which the order is passed
requires that the order should be made for reasons to be recorded in writing, then
reasons are necessary. In such cases, the reasons should be such as to show
application of mind by the authority to the facts of the case and rationale behind
making the order in the way it is made. It cannot be a mechanical ‘rubber stamp’
reason. The reasons need not be as elaborate as in case of a judgement, but must
be sufficient to understand the reason for making the order.
M. J. Sivani vs. State of Karnataka
Supreme Court held that where the relevant Rules require giving of reasons, it is
sine qua non for the validity of the order.
Even where the statute or the Rules do not specifically require giving of reasons,
the courts may still require that reasons must be given for the order in view of the
constitutional and statutory provisions which imply such a requirement.
Natural Justice 99
Implied Constitutional Perspective
Where not mentioning the reasons violates any fundamental right of the party,
then the Courts assume that giving reasons for the decision is a necessary
requirement under the Constitution, and not mentioning reasons is violation of the
rules of natural justice.
Anumathi Sadhakan vs. A. K. Chatterjee
Calcutta HC held that the law not requiring reasoned decisions puts unreasonable
restriction on the exercise of fundamental rights. Clauses 9 and 13 of the West
Bengal Rice Mills Control Order, 1949 which empowered the appropriate authority
to refuse to issue licence or refuse to renew an already existing licence “without
assigning any reason” were held to be unreasonable restriction on the petitioner’s
freedom of trade and occupation under art. 19(1)(g) of the Constitution.
Kishan Chand Arora vs. Commissioner of Police
An order refusing to issue licence to start an eating or entertainment house passed

by the Commissioner of Police without assigning any reason was upheld by the
Supreme Court on the ground that it was only an administrative order and not a
quasi-judicial order.
The distinction between administrative functions and quasi-judicial functions has

become very narrow today and where there is issues of fundamental rights are
involved, it may be held that giving reasons is a constitutional requirement.
Reasons are a link between the order and the mind of the authority. It
demonstrates the application of mind by the authority in making the order, and
hence includes the questions of procedural fairness.
Implied Statutory Perspective
Courts have more or less consistently held that a statute which gives quasi-
judicial powers to an authority implies a duty to give reasoned decisions.
Especially, where the statute provides for appeal against the order of the deciding
authority, reasons for decision is a must.
S. N. Mukherjee vs. Union of India
It was held that unless the requirement of recording reasons in writing is

dispensed with either expressly or by necessary implication, a judicial or quasi
judicial authority has to give reason for his decisions.
Mahabir Prasad Santosh Kumar vs. State of UP
A quasi judicial order subject to appeal necessarily implies duty to give reasoned
decision. If the order of the lower authority is modified or reversed by the appellate
authority, there must be sufficient reasons to be recorded in writing.
Bhagat Ram vs. State of Punjab
It was held that absence of appeal makes it even more necessary to give reasons
where severe penalty is imposed.
M. P. Industries Ltd. vs. Union of India
Where one authority makes an order giving sufficient reasons and another
authority after examination of that order confirms it, that other authority need not
give any reasons.
This decision was followed in a series of cases.
Divisional Forest Officer vs. Madhusudhan Rao
It was held that the appellate authority, which concurs with the decision of the
lower authority need not give elaborate reasons. Brief remarks will be sufficient.
Bhagat Raja vs. UoI
However, in this case the Court held that even where the appellate authority
concurs with the decision of the lower authority, it has to give reasons. This
decision is also followed in several later cases.
Harinagar Sugar Mills Ltd. vs. Shyam Sundar Jhunjhunwala
It was held that if the appellate authority wholly or partially reverses the decision
of the lower authority, it has to give reasons for the reversal.
Reasons must be recorded if the order affects public interest.
CIRCUMSTANCES RENDERING THE HEARING UNFAIR
The following circumstances, among others, render the hearing unfair
Rule against Dictation
Where the concerned authority, after hearing the party, instead of passing its own
order based on that hearing, passes some order as directed by a superior
authority, the hearing becomes only a farce, and the decision null and void.
Natural Justice 101
Mahadayal vs. CTO
The question before the respondent Commercial Tax Officer was whether the
petitioner was liable to pay tax. After hearing the petitioner, he was of the opinion
that the petitioner was not liable to pay tax. But he passed an order requiring the
petitioner to pay tax, because his superior directed him to do so. The order was set
aside as violative of the rule of fair hearing.
Financial Incapacity to Attend Enquiry
Where the party is unable to attend the hearing on account of financial incapacity,
it cannot be said that he did not use the opportunity of being heard offered to him.
Moreover, in some cases, the financial incapacity is used to prevent the party from
attending, especially, the departmental enquiry. As the department itself holds the
enquiry, it has complete control over the proceedings. It may hold enquiry, for
example, at a place which is far away from the place of residence of the party in
order to make it difficult for him to attend the enquiry. This not only violates the
rule of fair hearing, but may also show the departmental bias against the party so
prevented.
Ghanshyamdas Shrivastava vs. State of M. P.
The suspended employee was not paid suspension allowance. It was held that that
affected his capacity to face the proceedings and hence resulted in violation of
natural justice.
Mumtaz Hussain Ansari vs. State of U. P.
The appellant was a District Superintendent of Police at Pilibhit. There were

several charges against him including wilful absence from duty. He was being
heard by a Tribunal. He offered to examine eight witnesses in his favour. He was
asked to pay Rs. 900 as bhatta to the witnesses. He expressed his financial
incapacity to pay the bhatta. The Tribunal refused to issue summonses to the
witnesses.
The Supreme Court held that there was violation of rules of fair hearing, and held
that where a person under suspension for a long period of time may not be able to
pay witness bhatta. In such cases witnesses may be called at the expense of the
Government.
Decision Post Haste
Here, the entire process is conducted so quickly that the party does not get
sufficient time to appear and place his case before the deciding authority. Such
hasty decisions also show bias in the mind of the deciding authority.
City Coroner vs. P. A. to Collector and Additional D. M.
The petitioners made an application to the District Magistrate for a licence under
Places of Public Resorts Act, 1888, for conducting skill games and dance. The
licence was granted on 10.10.1974. Applicant spent Rs. 27,000 for a temporary
structure.
On 21.1.1975, the District Magistrate issued a notice to the petitioners asking

them to show cause why the licence should not be withdrawn as the same was
objected to by the Superintendent of Police and two others.
The notice was received by the petitioners on 25.1.1975. They gave a reply to the
notice on 27.1.1975. The licence was revoked on 28.1.1975. It was held that the
decision was taken hastily without waiting for the reply. The same was set aside
for failure of natural justice.
POST-DECISIONAL HEARING
Even in cases of emergency, where there is no time available for giving a hearing,
hearing is a must and the same may be given after taking the necessary action. In
cases of emergency, pre-decisional hearing may be substituted by post-decisional
hearing, but it cannot be dispensed with altogether.
Maneka Gandhi vs. UoI
The petitioner was about to leave India. While she was about to board her plane,
her passport was impounded. This was challenged as violative of natural justice as
no opportunity of being heard was afforded to the petitioner before impounding her
passport.
The respondent Government contended that there was no time to hear the
petitioner as she was about to board the plane and leave India.
It was held that even in such cases rule of fair hearing cannot be dispensed with.
However, instead of the normal rule of pre-decisional hearing post-decisional
hearing may satisfy the requirement of the audi alteram partem rule.
This same technique of validating an order passed without hearing a party by

ordering post-decisional hearing was again adopted in the Swadeshi Cotton Mills
case.
Swadeshi Cotton Mills vs. Union of India
The Government of India passed an order under Sec. 18-A and Sec.18-AA of the
Industries (Development and Regulation) Act, for the taking over the management
of the petitioner company by the National Textile Corporation. No opportunity of
being heard was afforded to the petitioners before passing the order.
Natural Justice 103
The Court arrived at an opinion that where in law there is an express or implied
requirement of fair hearing, its non-compliance by a quasi judicial body makes its
decision null and void. But the Court did not set aside the order because the
Solicitor General gave an undertaking that post-decisional hearing will be given to
the petitioners.
This approach was not well received by jurists and judges alike, and in Tea
Trading Corporation of India Ltd. vs. Pashok Tea Company Ltd. Koshal, J.
referred the matter to a larger bench, as it involved the same question.
In post-decisional hearing, the likelihood of the deciding authority hearing the

case with closed mind and bias arising out of obstinacy playing its role are very
high. Therefore, post-decisional hearing cannot be equally efficacious as a pre-
decisional hearing.
K. I. Shephard vs. Union of India
Under a Scheme made under Sec. 45 of the Banking Regulation Act, 1949, three
banks were amalgamated. During this amalgamation some of employees of the
earlier banks could not get placement in the amalgamated bank.
Some of them approached the High Court by way of writ petitions. The Single
Judge disposed of the matter by ordering post-decisional hearing. Against the
order of the Single Judge, the petitioners preferred appeal before the Division
Bench of the High Court, which dismissed the appeals. Therefore some other
employees who had lost their jobs approached the Supreme Court directly.
The Supreme Court held that where pre-decisional hearing is not possible, post-
decisional hearing may serve the purpose. But where pre-decisional hearing is
possible, post-decisional hearing cannot be substituted.
The Court held that there is no justification for throwing a person out of his
employment without affording him an opportunity of being heard before passing
the order.
The Court observed that it is a common experience that once a decision is taken
there is a tendency to uphold it, and post-decisional hearing becomes a formality.
EXCEPTIONS TO NATURAL JUSTICE
1. EMERGENCY
As observed above, where there is no time to give pre-decisional hearing, it may be

excluded, but that does not mean that the rule of fair hearing is not applicable at
all to such cases. In such cases, post-decisional hearing has to be given.
It has also been observed that post-decisional hearing is a good substitute only
where there is no time at all to give pre-decisional hearing. If there is some time
available, pre-decisional hearing must be given. However, the procedure may be
summary procedure.
2. CONFIDENTIALITY
Where a matter is to be kept confidential, certain requirements of fair hearing may

be dispensed with, as the same make the matter public.
Malak Singh vs. State of Punjab & Haryana
Surveillance register maintained by the police is a confidential document. Neither

the person whose name is entered in the register nor any other member of the
public can have access to it. Therefore, not allowing the party to inspect the
register does not violate the requirements of natural justice.
3. ACADEMIC MATTERS
Where the matter is purely academic in nature, rules of natural justice are not
attracted.
J. N. U. vs. B. S. Narwal
It was held that the very nature of academic adjudication negatives the application
of the rules of natural justice. Therefore, if competent academic authorities
examine the work of a candidate over a period of time and hold that it is
unsatisfactory, natural justice is not applicable to such a case.
But the exclusion of rules of natural justice is applicable only to academic matters
and not to disciplinary matters. Where an academic body takes disciplinary action
against a student, it is acting in an administrative capacity and not its academic
capacity. In such cases following the rules of natural justice is sine qua non.
4. IMPRACTICABILITY
Where the affected interest consists of a large number of persons, hearing every
one of them is practically impossible. In such cases not hearing the parties does
not vitiate the order.
R. Radhakrishnan vs. Osmania University
The respondent University cancelled the MBA examination for the reason of mass
copying. The order was challenged by the petitioner on the ground that he was not
heard before passing the order which had adverse consequences against him.
Natural Justice 105
It was held that every student cannot be heard in such cases as there were a large
number of students from all over the nation who had appeared for the
examination.
In some cases, it is not only the number of the affected persons, but also their
identity may be a hurdle in giving hearing to them.
In some cases, public hearing may be a solution where a large number of persons
are to be given an opportunity of being heard.
West Bengal Electricity vs. CESC Limited
The Electricity Act required that consumers should be heard before fixing tariff.
But the West Bengal Electricity Regulatory Commission considered that hearing
1.7 lakh consumers is practically impossible. The Court held that individual
hearing is not required, but public hearing is mandatory.
5. INTERIM PREVENTIVE ACTIONS
The very nature of the adjudication excludes the requirement of audi alteram
partem. The order is passed to prevent the parties from altering the status quo so
that the very purpose of the main case is not defeated. The order is only interim, in
the sense that it is not final. It is valid only during the pendency of the main
mater.
In many cases, a notice in such matters is more likely to defeat the case of justice
than to promote it. If the party receives the notice, it may accelerate its illegal act
and change the state of things to such an extent that the main remedy will no
more by available to the opposite party. It may destroy the subject matter of the
case or take any other irreversible action against the subject matter of the case.
In some cases it may be necessary to maintain peace or avoid tempering with

evidence or influencing the witnesses by the parties.
Abhay Kumar vs. K. Srinivasan
A student allegedly stabbed another student and a criminal case was pending
against him in that matter. The institution debarred him from entering the campus
during the pendency of that trial. The order was challenged on the ground that the
student was no heard before passing it.
It was held that such an order may be compared with an order of suspending an
employee during the pendency of disciplinary proceedings against him. As the
order was passed in order to maintain campus peace, rules of natural justice did
not apply to the case.
6. STATUTORY EXCEPTIONS
Application of the principles of natural justice may be excluded by Constitution.
The Constitution of India excludes the application of rules of natural justice in
arts. 22, 31(a), 31(b), 31(c) and 311(2) as a matter of policy.
So also, a statute may create exceptions to the application of the rules of natural
justice. However such exception must be a reasonable exception. If it is arbitrary,
unreasonable or unfair, it may be seen as violation of art. 14, 19 or 21 depending
upon the case and may be struck down.
7. NECESSITY
Rule against bias requires that the deciding authority should not be interested in
the outcome of the case. But, where there is only one person competent to decide
the case, doctrine of necessity is applicable and the person may decide the matter.
Sub-committee on Judicial Accountability vs. UoI
Speaker of Lok Sabha is the only person who is competent to take action under the
Judges Enquiry Act, 1968. Therefore, his affiliation to the Congress Party was held
not to disqualify him from deciding the case.
Charan Lal Sahu vs. UoI (Bhopal Gas Disaster Case)
The Bhopal Gas Disaster (Processing of Claims) Act, 1985 authorised the Central
Government to represent all the victims of the Bhopal gas disaster against the
Union Carbide Company in the cases for recovery of compensation. Constitutional
validity of this was challenged on the ground that the Central Government owned
22% shares in the Union Carbide Company.
Though the Court agreed that there was likelihood of bias in this case, on the
ground of necessity the Court refuse to hold the Act unconstitutional.
But the necessity must be genuine and real. That is, it should not be artificially
created in order to enable the person to decide the case in which he is interested.
8. POLICY MATTERS
BALCO Employees’ Union vs. UoI
It has been held that principles of natural justice are not applicable in taking of a
policy decision in economic matters at length. Only where the decision is taken in
a mala fide manner, capriciously or arbitrarily, the decision may be challenged.
Consulting the affected interest in such cases is desired but not mandatory. Non-
consultation does not vitiate the decision.
Natural Justice 107
9. WHERE HEARING IS A USELESS FORMALITY
Where the authority has no discretion in the matter and has to take a decision in
a particular manner only, hearing does not serve any purpose, and hence cannot
be claimed as a right.
D. R. B. A. R. M. Educational Institution vs. E. A. T. 3
A lecturer, after taking leave to pursue M.Phil. Degree, joined Ph.D. Course in
violation of the leave condition. Her services were terminated without giving her an
opportunity of being heard. The Education Appellate Tribunal held the termination
of her service invalid.
The Institution preferred an appeal against the order of the EAT before the High
Court. The High Court dismissed the appeal upholding the decision of the EAT.
On an appeal against the order of the High Court, the Supreme Court, upheld her
dismissal on the ground that hearing in this case would be only an empty formality
because the lecture did not have any ground in her defence.
Punjab National Bank vs. Manjeet Singh
It was held that failure to comply with the rules of natural justice will not vitiate an
order unless the failure has resulted in wrong finding of facts or has lead to wrong
implication of law. Hearing in other cases will be only a mere formality.
Similarly, where an ineligible candidate has been appointed, hearing is not

necessary for his removal. This is on the ground that no prejudice is caused to the
party by non-compliance with the rules of natural justice.
10. LEGISLATIVE FUNCTIONS
A legislative action is not directed towards any particular individual. It is against

the public at large. Therefore, natural justice is not applicable to it. Therefore,
rules of natural justice are not applicable where a legislature enacts an Act or the
executive frames Rules.
J. R. Vohra vs. Indian Export House
Sec.s 21 and 37 of the Delhi Rent Control Act excluded the rules of natural justice
in cases of termination of limited tenancies. It was held that the exclusion is not
unconstitutional because a limited tenancy is for a specified period of time, and on
the expiry of the period the possession may be recovered without issuing a notice.
3 Dharmaratnakara Rai Bahddur Arcot RamaswamyMudaliar Educational Institution vs.

Education Appellate Tribunal
Exclusion of natural justice is upheld not only in cases of exercise of legislative

function but also in exercise of other functions by the legislature. Thus, where a
decision is left to the legislature itself under the Act, giving an opportunity of being
heard to the affected interest does not arise.
Panipat Woollen and General Mills Co. Ltd. vs. UoI
The impugned Act empowered the legislature itself to decide the criteria and also
to identify persons and undertakings to which the Act is to apply on the basis of
those criteria.
It was held that rules of natural justice are not applicable to the case and it is not
necessary to issue notice to the affected interest before taking action under the Act
11. MINISTERIAL FUNCTIONS
Where the action taken by the authority does not involve exercise of discretion, but
only taken mechanically by applying the existing Rules, rules of natural justice are
not applicable.
K. P. S. C. vs. B. M. Vijaya Shankar
The rule clearly mentioned that the seat number of the candidate should be
written only in the space provided for it. It should not be written at any other place
and any such writing will disqualify the candidate.
The respondent had written his seat number on every page of the answer sheet. He
was disqualified. He challenged the order of disqualification on the ground that he
was not given an opportunity of being heard before passing the order.
It was held that rules of natural justice were not attracted in this case.
12. CONTRACTUAL MATTERS
State of Gujrat vs. M. P. Shah Charitable Trust
The Supreme Court held that the rules of natural justice are not applicable to the
termination of a contract by the Government. This is because termination of a
contract is neither a quasi judicial act nor an administrative act.
13. NO INFRINGEMENT OF RIGHTS
Rules of natural justice are applicable where the party is visited with adverse civil
consequences. Where a person cannot say that any of his rights under any
Natural Justice 109
statute, rule or common law is violated, he cannot claim the application of rules of
natural justice to his case.
State Bank of India vs. Girish Bihari
It was held that where an order is withdrawn before it has become operational,
non-compliance with the rules of natural justice does not vitiate the withdrawal.
This is because until the order becomes operational, no rights arise in the party.
Andhra Steel Corporation vs. A. P. State Electricity Board
The appellant Corporation was given electricity by the respondent Board. The
appellant was given concession in rates. Subsequently, the respondent withdrew
the concession without issuing notice to the appellant. This was challenged as
violative of natural justice. It was held that there was no violation of natural justice
as the appellants could not establish any right to the concession, and that there
was injustice caused to them by the withdrawal of the concession.
Similarly, where a probationer’s services are terminated without assigning reasons

there is no violation of natural justice because the very meaning of probation is
that the services are temporary and may be terminated at any time.
Partial Exemption Complete Exemption No Application

Emergency Academic Matters Legislative Function
Confidentiality Impracticability Ministerial Function
Interim Preventive Action Termination of Contract
Statutory Exemption No Infringement of Right
Necessity
Policy Matters
Useless Formality
EFFECT OF VIOLATION OF NATURAL JUSTICE
Failure to comply with the principles of natural justice renders the decision or
order void.
Canara Bank vs. Debasis Das
It was held that the order is invalid and is liable to be struck down. But the
authority can hear the matter again and pass a fresh order after complying with
the principles of natural justice.
Principles of natural justice must followed in all cases as a matter of public policy.
Kanwar Hari Bhushan Singh vs. Financial Commissioner, Simla
It was held that the fact that the person could not have or had nothing to say in
the matter is not a ground for non-observation of natural justice.
S. L. Kapoor vs. Jagmohan
It was held that actual prejudice to the person concerned is not the criterion for
deciding whether the failure to comply with principles of natural justice may be
condoned.
In recent years the question as to whether failure to comply with natural justice
results in void order or voidable order has been much debated. There is no doubt
that such an order is void.
Sirsi Municipality vs. Ceceliakon Francis Tellies
It was held that violation of rules of natural justice in exercise of quasi judicial
statutory power results into a void decision. However, even a void administrative
action may have legal consequences, in that it will be in operation till it is struck
down by a Court.
In some cases the order in violation of natural justice is held to be voidable at the
option of the party for whose benefit the requirement of natural justice is made.
Krishenlal vs. State of J & K
It was held that if an order is passed in violation of a mandatory provision, and if

that provision is for the benefit of the party, the party may waive its violation. If the
party does not waive the violation, the order becomes null and void.
But the debate is about whether an order which is quashed will be void from the
date of quashing or from the beginning itself.
Nawabkhan vs. Gujrat
The petitioner was served with an externment order under sec. 59 of the Bombay
Police Act, 1951 on 5th September, 1967. he was prosecuted for the contravention
of the order.
RIGHT OF THIRD PARTIES
General rule is that right to natural justice is available only to the parties to the
proceedings, because only their rights are in question. But in some rare
circumstances, rights of third persons may be affected by the decision in the case.
In such cases courts may insist that the third party whose rights may be affected
should also be heard.
Natural Justice 111
Antonio S. C. Pareira vs. Ricardino Naronha
There was a dispute relating to the title of a property and a suit in respect of the
same was pending before a civil court. One of the parties to the suit made an
application under the Goa, Diu and Daman Administration of Evacuee Properties
Act, 1862 to the Custodian of Evacuee Property for declaration that the property is
non-evacuee and for its restoration. It was held that the other party to the suit in
respect of the property must also be heard, as his rights are also affected.
CHAPTER V
QUASI JUDICIAL FUNCTIONS
• Meaning of Quasi Judicial Functions

• Characteristics of Quasi Judicial Functions
• Test of Quasi Judicial Functions
• Need for Quasi Judicial Functions
• Control of Quasi Judicial Authorities
• Directions to Quasi Judicial Authorities
• Enquiry Against Quasi Judicial Authorities
• Judicial Review of Quasi Judicial Functions
MEANING AND DEFINITION
Quasi judicial function is the function of administrative authorities which is

similar to judicial functions. It is also called ‘administrative decision making’ or
‘administrative adjudication’.
Often powers are given to the administrative authorities to decide the rights and
liabilities of individuals, as if they are courts. But in discharge of these powers, the
concerned authorities are not acting in judicial capacity but they are acting in
administrative capacity. Hence they are called quasi judicial authorities.
The word ‘quasi’ means ‘not exactly.’ Generally, an authority is described as

‘quasi-judicial’ when it has some of the attributes or trappings of judicial
functions, but not all. The incidents of quasi judicial function are:
1. The administrative authority is empowered under a statute to do any act.
2. An individual will be visited with civil consequences.
3. The act involves resolving a dispute between
(a) two citizens, or
(b) a citizen and the authority itself
4. the authority is required to act
(a) judicially and
(b) in accordance with rules of natural justice.
CHARACTERISTICS OF QUASI-JUDICIAL FUNCTIONS
1. LIS INTER PARTES
As the name implies, a quasi-judicial function is one which resembles judicial

function. Hence, in a quasi-judicial function, there is a dispute between two
persons.
Shankarlal vs. Shankarlal
A High Court judge confirmed an auction sale by a company during the winding up
proceedings. It was held that the confirmation process involved settlement of
dispute between the auction purchaser and the creditors of the company, and
therefore, was a quasi-judicial function.
2. PROVISION FOR APPEAL
The provision of administrative appeals is another indication of quasi judicial

function. An appeal against administrative order is an administrative in nature.
3. POWERS OF COURT
In order to facilitate the discharge of the quasi judicial functions certain powers of
courts are bestowed upon the quasi judicial authorities.
4. ADVERSE CIVIL CONSEQUENCES
If the party who suffers an adverse order also suffers adverse civil consequences,
the power of the authority is deemed to be quasi judicial in nature.
5. DUTY TO ACT JUDICIALLY
Where the authority is under a duty to act judicially, it is a quasi judicial

authority.
TEST OF QUASI JUDICIAL FUNCTIONS

(DISTINCTION BETWEEN ADMINISTRATIVE AND QUASI
JUDICIAL FUNCTIONS)
There are two main tests of a quasi judicial function. These are also the tests to
distinguish between administrative functions from quasi judicial functions. The
are:
1. Existence of lis; and
2. Existence of duty to act judicially.
EXISTENCE OF LIS
To appreciate the distinction between administrative and quasi judicial functions,

we have to understand two expressions – ‘lis’, and ‘quasi lis’
Quasi Judicial Functions 117
Lis
Lis means litigation, i.e., existence of a dispute between two parties.
One of the major grounds on which a function can be called ‘quasi-judicial’ as

distinguished from pure ‘administrative’ is when there is a lis inter partes requiring
the administrative authority to decide the dispute between the parties and to
adjudicate upon the lis. Prima facie, in such cases the authority will be regarded as
acting in a quasi-judicial manner.
For example, a Rent Tribunal determining ‘fair rent’ between a landlord and
tenant, an Election Tribunal deciding an election dispute between rival candidates,
an Industrial Tribunal deciding an industrial dispute, a Licensing Tribunal
granting a licence or permit to one of the applicants.
Quasi Lis
But it is not in all cases that the administrative authority is to decide a lis inter
partes. There may be cases in which an administrative authority decides a lis not
between two or more contesting parties but between itself and another party. But
there also, if the authority is empowered to take any decision which will
prejudicially affect any person, such decision would be a quasi-judicial decision
provided the authority is required to act judicially.
Thus, where an authority makes an order granting legal aid, dismissing an

employee, refusing to grant, revoking, suspending or cancelling a licence,
cancelling an examination result of a student for using unfair means, rusticating
of a pupil, etc. such decisions are quasi-judicial in character.
In all these cases there are no two parties before the administrative authority, ‘and
the other party to the dispute, if any, is the authority’ itself. Yet, as the decision
given by such authority adversely affects the rights of a person there is a situation
resembling a lis. In such cases, the administrative authority has to decide the
matter objectively after taking into account the objections of the party before it,
and if such authority exceeds or abuses its powers, a writ of certiorari can be
issued against it. Therefore, Lord Greene, M. R. rightly calls it a ‘quasi-lis.’
DUTY TO ACT JUDICIALLY

The real test which distinguishes a quasi-judicial act from an administrative act is
the duty to act judicially, and therefore, in considering whether a particular
statutory authority is a quasi-judicial body or merely an administrative body, what
has to be ascertained is whether the statutory authority has the duty to act
judicially.
As observed by Parker, J. “the duty to act judicially may arise in widely different
circumstances which it would be impossible, and indeed, inadvisable, to attempt
to define exhaustively.”
Whenever there is an express provision in the statute itself which requires the
administrative authority to act judicially, the action of such authority would
necessarily be a quasi-judicial function. But this proposition does not say much,
for it is to some extent a tautology to say that the function is quasi-judicial (or
judicial) if it is to be done judicially.
The requirement to act judicially is sometimes indicated in a statute by the use of

the expression, “just and proper”. The authority is empowered to pass any order
which it deems “just and proper” in the circumstances of the case.
Shivji Nathubhai vs. UOI
The Mineral Concession Rules, 1949 framed under the Mines and Minerals
(Regulation and Development) Act, 1948, provided that anyone aggrieved by the
decision of the State Government refusing to grant a mining lease may apply to the
Central Government to review the order of the State Government.
The Act required the Central Government to decide the matter before it in such a
manner as it deemed “just and proper”.
It was held that the words ‘just and proper’ imposed a duty to act judicially upon
the Central Government.
Generally, statutes do not expressly provide for the duty to act judicially and,
therefore, even in the absence of express provisions in the statutes the duty to act
judicially should be inferred from ‘the cumulative effect of the nature of the rights
affected, the manner of the disposal provided, the objective criterion to be adopted,
the phraseology used, the nature of the power conferred, of the duty imposed on
the authority and the other indicia afforded by the statute.
Duty to Act Fairly
Since ‘fairness in action’ is required from Government and all its agencies, the
recent trend is from ‘duty to act judicially’ to ‘duty to act fairly.’
‘Duty to act fairly’ is indeed a broader notion and can be applied even in those
cases where there is no lis. It is this concept (“duty to act fairly”), which has given
rise to certain new doctrines, e.g., “fair play in action”, “legitimate expectations”,
“proportionality”, etc.
DISTINCTION BETWEEN JUDICIAL AND QUASI JUDICIAL

FUNCTIONS
In England the Committee on Ministers’ Powers, 1932, in its report gave an

opinion that judicial function presupposes an existing dispute between two or
more parties and it involves four requisites:
1. The presentation (not necessarily oral) of their case by the parties to the
dispute;
2. If the dispute is a question of fact, the ascertainment of fact by means of

evidence adduced by the parties to the dispute and often with the assistance of
argument by or on behalf of the parties, on evidence;
3. If the dispute between them is a question of law, the submission of legal

argument by the parties; and
4. A decision which disposes of the whole matter by finding upon the facts in
dispute and ‘an application of the law of the land to the facts found, including,
where required, a ruling upon any disputed question of law.’
Thus, if these elements are present, the decision is a judicial decision even though
it might have been made by any authority other than a court, e.g. by an executive
authority, an administrative officer or an administrative tribunal.
According to the Committee, a quasi-judicial decision equally presupposes an

existing dispute between two or more parties and involves (1) and (2) above but
does not necessarily involve (3) and never involves (4). The place of (4) is, in fact,
taken by administrative action, the character of which is determined by the choice
of the administrative authority.
Example
A statute empowers an administrative authority to take action if certain facts are

proved. The statute gives him an absolute discretion whether or not to take action
if those facts are proved.
To ascertain the facts, he must consider the representations of parties and record
evidence offered by them. To that extent the decision contains a judicial element.
But, once the facts ascertained, his decision does not depend on any legal or
statutory direction. He is left free to take such administrative action as he may
think fit. In other words, the matter is not finally disposed of by the process of (4).
This test has, however, been subject to criticism by jurists. The Committee
characterized the judicial function as being devoid of any discretionary power but
obliged to merely apply the law to the proved facts. In reality, it is not so. The
courts of law also exercise discretion. It may be more persuasive in administrative
actions than in judicial functions but the difference is of degree only.
A quasi-judicial function stands mid-way between a judicial function and an

administrative function. A quasi-judicial decision is nearer the administrative
decision in terms of its discretionary element and nearer the judicial decision in
terms of procedure and objectivity of its end-product.
It is also not true that in all quasi-judicial decisions, two characteristics are
common
1. presentation of their case by the parties; and
2. the decision on questions of fact by means of evidence adduced by the parties.
Firstly, in many cases, the first characteristic is absent and the authority may
decide a matter not between two or more contesting parties but between itself and
another party, e.g. an authority effecting compulsory acquisition of land. Here the
authority itself is one of the parties and yet it decides the matter. It does not
represent its case to any court or authority.
Secondly, there may be cases in which no evidence is required to be taken and yet
the authority has to determine the questions of fact after hearing the parties, e.g.
rate-making or price-fixing.
Thirdly, after ascertainment of facts, unlike a regular court, an authority is not

bound to apply the law to the facts so ascertained, and the decision can be arrived
at according to considerations of public policy or administrative discretion, which
factors are unknown to an ordinary court of law.
NEED FOR QUASI JUDICIAL FUNCTIONS

(ADVANTAGES OF QUASI JUDICIAL FUNCTIONS)
In USA people have confidence in quasi-judicial bodies, which confidence is not

found in England and India, where the people have more confidence in judiciary,
and very less confidence in administrative authorities. But still there are
compelling reasons for the establishment and growth of quasi-judicial bodies in
India.
1. BURDEN ON COURTS RESULTING IN DELAY
In India, as in England, people have great faith in Courts. They are assured of
justice. Therefore, Courts are overburdened by cases. This causes delay in
disposal of cases. Mahabir Jute Mills vs. Shibban Lal Saxena was an eye opener.
Mahabir Jute Mills vs. Shibban Lal Saxena
A case involving wrongful dismissal of employees was decided by the Supreme

Court 40 years after its institution. By that time most of the employees had died.
Therefore, Supreme Court expressed the need for an alternative dispute resolution
forum, which would reduce the burden on Courts, and at the same time secure
speedy and economical justice for the parties.
2. SPECIALISATION
Judiciary consists of ordinary Courts, which are called courts of general

jurisdiction. This means that they have jurisdiction to try and decide any case. The
only division is civil and criminal cases. Thus all civil cases may be tried and
decided by an ordinary civil court, and all criminal cases may be tried and decided
by ordinary criminal courts. This means a huge number of cases with a great
variety of subject-matter come before these courts.
Quasi judicial authorities are special tribunals, which are called tribunals of
limited jurisdiction. Only few types of cases can be brought before any such
tribunal or authority. This means that only few cases can come before these
bodies, and mostly they are stereo typed. This makes easy for the authorities to
decide the cases quickly and efficiently, because in most of the cases they already
know the solution.
3. EXPERTISE
Majority of cases before administrative authorities involve questions of facts such

as questions involving matters of tax, revenue, service, etc., rather than questions
of law. Administrative authorities are better equipped to decide such cases. Courts
are efficient in dealing with cases involving predominantly questions of law.
4. INFORMALITY
Quasi judicial authorities have to follow the procedure, if any, provided under the
enabling statute. They are not required to follow the procedural requirements
under general laws such as Civil Procedure Code, 1908 and Indian Evidence Act,
1872. That does not mean that they can overlook the requirements under these
laws. But they need not follow them religiously as in case of Courts.
Courts have to abide by the procedural requirements under Civil Procedure Code,
1908, Indian Evidence Act, 1872 and other procedural laws, whether or not such
procedure is necessary. Quasi judicial authorities must follow these requirements
only if deviation causes injustice to any of the parties.
This also enables the parties to represent themselves in the case without any need
to engage advocates.
5. SPEEDY ADJUDICATION
Because of informality and avoiding unnecessary procedural requirements, the
adjudication by administrative authorities is less time consuming.
6. INEXPENSIVE
As the administrative decision making takes less time, and because of informality
of procedure need to appoint advocates is not there, the whole process is much
economical than judicial process.
7. PREVENTIVE RATHER THAN REMEDIAL

Like medicine, in law also there is a growing emphasis on preventive justice rather
than punitive. Prevention is better than cure is true in legal field also.
It is necessary that the chances of injury must be eliminated, rather than giving
relief to the parties after they suffer injury. For example, it is necessary that any
spurious drink or rotten article of food must be destroyed before being offered for
public sale. This can be done only by administrative agencies exercising
adjudicatory powers.
Courts can act retroactively, while quasi judicial authorities, being administrative
authorities, can act proactively. Courts come in picture only after violation of right
takes place. Further, generally, they can give remedy only if the aggrieved parties
approach them. But administrative authorities can act even before the injury takes
place, and without being approached by anybody.
8. POLICY MAY BE APPLIED (FUNCTIONAL APPROACH)
Administrative adjudication also represents a functional approach to law. In

certain situations, justice lies not in disposal of the case according to law but in
fair disposition. In cases like licensing, nationalisation, fixing priorities in planning
and action, the decision is to be reached not according to law as such but' on the
ground of policy considerations. Therefore, such matters are either unfit for courts'
decision or courts, with their inherent limitations, are ill-equipped to make such
decisions.
9. GENERAL RATHER THAN SPECIAL TREATMENT TO CASES
In any Welfare State there may be areas of adjudication where, instead of

concentrating on isolated facts in a dispute, the whole area is to be concentrated
upon with sympathetic attitude coupled with an awareness of social context of the
problem. The Labour and Capital relationship may be one of such areas where,
while, deciding any labour dispute, the whole spectrum of industrial harmony
necessary for national development is to be kept in view.
Therefore, decisions in this area are to be reached not merely according to strict
principles of law but on the principle of mutual give and take. Here again
administrative adjudication is the answer because courts, due to their limitations,
cannot adopt this approach.
10. SOCIALISATION OF LAW
Administrative authorities have the scope to explore new public law standards
based on moral and social principles away from the highly individualistic norms
developed by courts.
Employees’ State Insurance Scheme in India required a new standard of medical

service and treatment to which all the insured population and doctors must
conform to. Town planning requires new standards of zoning, amenities, dispersal
of industries, housing and a series of similar measures. This setting up of new
standards requires expertise, specialization and experimentation. The development
of a standard for restricting traffic over a bridge with reference to load and the flow
of water requires the knowledge of an engineer. Developing new standards to
prevent environmental hazards arising out of industrialization requires the
knowledge of an environmentalist.
Realising their limitation, the Supreme Court once said that leaving such technical
matters to the decision of the court is like giving surgery to a barber and medicine
to an astrologer. Therefore, the need to develop new standards and to apply them
has led to the growth of administrative adjudication.
PROBLEMS RELATED TO QUASI-JUDICIAL FUNCTIONS
1. NUMBER AND COMPLEXITY
Administrative agencies with adjudicatory powers have grown considerably in

terms of number. Every other statute contains its own machinery for decision
making. A large number of parallel bodies adjudicating on the same kind of
dispute and giving divergent decisions is no exception. This complicates the task of
administrative law in drawing uniform principles for uniform application.
Therefore, the need to reorganise this formidable number into a system with fewer
units cannot be overemphasised.
2. VARIETIES OF PROCEDURES
Judiciary consists of only two sets of ordinary Courts followed by two sets of
procedures. Therefore, everyone is quite familiar with these procedures.
In contrast, in many cases statute which creates a quasi judicial body also lays
down the procedure to be followed by that body.
Some statutes give free hand to the quasi judicial authorities to frame its own
procedure. In such cases, the procedure framed by the authority is not adequately
published. Including the officers of the authority, no one is certain about the
procedure. If any amendments are made to the procedure, things further worsen
as only some people may know the changes and others may not. Therefore
confusions and arguments about proper procedure is quite common.
Sometimes the agency is invested with the powers of a Civil Court in matters of
compelling attendance and production of documents. But in a great number of
cases, the agency is required to follow. Only the minimum procedure of the
principles of natural justice. Because the principles are not rigid and do not apply
uniformly in all situations, the consequent uncertainty result at times in arbitrary
actions.
Because of these reasons, even the best lawyer cannot say with certainty how he
will proceed before a particular agency.
3. UNSYSTEMATIC SYSTEM OF APPEALS
An appeal is a definite safeguard against an accident in the administration of

justice. However, no uniform system of appeal has been followed in administrative
adjudications.
Sometimes administrative decisions are made appealable before an independent

tribunal as in tax cases. For example Income Tax Appellate Tribunal hears appeals
from the decisions of the Commissioner of Income Tax.
Sometimes appeal is provided for before a higher administrative agency as in case

revenue matters. Under the Karnataka Land Revenue Act, appeal against the order
of Tahsildar lies to the Assistant Commissioner, and appeal against the order of
the Assistant Commissioner lies to the Deputy Commissioner.
Some Acts do not provide for any appeal and make the decision of the
administrative agency final. Sec. 6 of the Land Acquisition Act makes the decision
of the Collector regarding public purpose final.
Some Acts allow appeal on questions of law only. Sec. 64 of the Motor Vehicles Act
may be cited as an illustration.
The period for allowing appeals also differs from agency to agency.
To eliminate this ad hocism in appeals from the decisions of the administrative

agencies, it is necessary that at least one appeal on questions of fact must be
allowed before a higher administrative authority and another appeal on questions
of law to a court of law.
4. INVISIBILITY OF DECISIONS
Unlike courts, not all administrative agencies exercising judicial powers publish
their decisions; their decisions, therefore, go beyond the pale of public criticism. In
the absence of this necessary safeguard, the quality of administrative justice
suffers. In some cases, even no record is prepared and justice is administered in
an anti-legal fashion.
5. UNPREDICTABILITY OF DECISIONS
Courts are bound by doctrine of precedent. Decisions of Courts are binding as

precedents on those Courts and on Courts subordinate to them. This makes law
certain. Certainty leads to predictability. Advocates can advise their clients

properly. Clients can decide whether to pursue the action or not, because they will
be told about the probable outcome by their advocates, with more or less certainty.
But generally, quasi judicial authorities are not bound by doctrine of precedent.
Therefore, their decisions are not predictable. Therefore, Advocates cannot advise
their clients confidently, and clients cannot decide whether to pursue the action or
not.
6. ANONYMITY OF DECISIONS
In quasi judicial decision making often institutional hearing takes place. One
officer, known as enquiry officer or investigating officer, collects the evidence and
forwards to another officer, known as deciding officer. The deciding officer passes
an order on the basis of the evidence collected and forwarded to him by the
enquiry officer.
In administrative adjudication, though not always, the decisions are made in a

‘hole-and-corner’ fashion. No one knows from where the decision comes. One fine
morning a person receives a letter that the President of India or the Governor, as
the case may be, is pleased to take such and such decision in his case. This
divided responsibility where one hears and another decides is against the concept
of fair hearing.
7. COMBINATION OF FUNCTIONS
In India, except in the case of civil servants, in all disciplinary proceedings the
functions of a prosecutor and the judge are either combined in one person or in
the same department. Whether it is accepted or not, in such a situation bias is
inevitable.
8. ‘NO EVIDENCE’ RULE

Technical rules of the Evidence Act do not apply to administrative adjudications.
The gap is filled, though inadequately, by the judge-made rule of 'no evidence'. The
Supreme Court explained the substance of this rule in State of Haryana vs. Rattan
Singh.
State of Haryana vs. Rattan Singh
A flying squad checked a bus of the Haryana Road Transport Corporation.

Respondent Rattan Singh was the conductor of the bus. The inspector found
eleven passengers without tickets though they had paid money for it. However, the
inspector did not record the statements of those persons as required under the
rules. After the formality of enquiry, the services of the conductor were terminated.
All the courts up to the High Court quashed the decision on the ground of
insufficiency of evidence and violation of rules of natural justice as none of the
eleven witnesses was examined and the Inspector did not record the statements of
witness as required by law.
On appeal by the State, the Supreme Court reversed the decision and held that the
simple point in the case was, was there some evidence or was there no evidence-
not in the technical sense governing the regular court proceedings but in a fair
common-sense way as a man of understanding and worldly wisdom would accept.
Viewed from this angle, sufficiency of evidence in proof of findings of a domestic

tribunal is beyond scrutiny. The evidence of the inspector is some evidence.
The end-result of the decision is that in an administrative adjudication if there is

some evidence in some comer of the record the decision is valid though it may not
be any evidence at all in accordance with accepted norms of a judicial decision.
Nand Kishore Prasad vs. State of Bihar highlights the problem.
Nand Kishore Prasad vs. State of Bihar
The appellant was a clerk in the District Magistrate's office. He was prosecuted
before a criminal court for embezzling a certain amount, but was acquitted.
Thereafter, disciplinary administrative proceedings were initiated against him and

the appellant was found guilty, and hence removed from service.
Upholding the decision of the administrative authority in a writ proceeding, the

Supreme Court held that this was not a case of 'no evidence' but of evidence which
was inadequate to carry a conviction in a criminal court.
In disciplinary proceedings, however, the order passed cannot be interfered with

on the ground that the evidence would be insufficient in a criminal trial. It is true
that this 'no evidence' rule resulting in inadequate basis for action has not earned
any credibility for administrative justice.
9. OFFICIAL PERSPECTIVE
In administrative justice, official perspective is inherent. In any disciplinary

proceeding, the presumption is of guilt rather than innocence. The actions are
taken on the basis of expediency and various other extra legal considerations. This
projection of official perspective does more damage where the administrative
agency is not required to follow the standard rules of evidence and procedure.
10. OFFICIAL BIAS

Official or departmental bias is one of the most baffling problems of administrative
law. However, it is a problem which is inherent in administrative process itself.
Gullapalli Nageshwara Rao vs. A.P.S.R.T.C.
The Supreme Court quashed the decision of the Andhra Pradesh Government
nationalizing road transport, among other grounds, on the ground of departmental
bias because the Secretary of Transport who had initiated the scheme also heard
the objections.
Gullapalli Nageshwara Rao vs. A.P.S.R.T.C. (II Case)
Realising the inevitability of departmental bias in the administrative process, the

Supreme Court, however, quickly added a caveat to its approach and held that if
the minister concerned hears the objections, the decision would be valid because
he is a formal head of the department.
11. PLEA BARGAINING

Plea bargaining means the bargaining of 'plea of guilt' with lesser charges and
punishment. It is very common that a poor employee is bullied by an overbearing
superior to accept the charge against him on the promise that a lesser punishment
wil1 be awarded. Plea bargaining, besides being immoral, violates the accepted
canons of justice. It does the most damage where people are poor and illiterate.
12. POLITICAL INTERFERENCE

Instrumentalities of administrative justice are, by their very nature, subject to
some manner of political interference, though this cannot be said with certainty
about every tribunal.
13. OFF THE RECORD CONSULTATION

No administrative authority exercising adjudicatory powers is to consult any
person or party upon any fact in issue except upon notice and opportunity for all
parties to participate. This is necessary to avoid off the record consultations by the
authority in a manner that may prejudice the case of the other party.
In India there is no law to eliminate the dangers inherent in off the record
consultation by an administrative authority. The principles of natural Justice only
demand that the authority must not base its decision on any evidence which is not
brought to the notice of the other party.
14. REASONED DECISION
In India apart from the requirement, if any, of the enabling statute, there is no
requirement for the administrative authority to give reasons.
Tara Chand vs. Municipal Corporation Delhi
The Supreme Court held that there is no principle of natural Justice requiring a
statutory tribunal to give reasons in every case.
In order to develop faith in administrative justice, it is essential as a general

requirement that every administrative agency must give reasons at least when
demanded.
15. LEGAL REPRESENTATION
Apart from the requirement of enabling statute, there is no general requirement of

the principles of natural justice that the administrative agency should always
allow legal representation and cross-examination in every case.
CONTROL OF QUASI JUDICIAL AUTHORITIES
DIRECTIONS TO QUASI JUDICIAL AUTHORITIES
General rule is that like judiciary, quasi-judicial authorities must be independent.

There should not be any interference in their working. Therefore, no directions can
be issued to quasi-judicial authorities in respect of cases pending before them.
But that does not mean that there cannot be directions of general nature, i.e.,
quasi legislation or Rules laying down guidelines or procedure required to be
followed by them in all cases generally.
ENQUIRY AGAINST QUASI JUDICIAL AUTHORITIES
So also, no enquiries can be initiated against them. This is necessary for discharge
of duties by quasi-judicial authorities without any fear or favour.
But in some cases, there may be such irregularities in discharge of functions by

the quasi-judicial authorities that enquiry becomes utmost necessary.
Union of India vs. K. K. Dhawan
The ITO decided a case post haste. It was held that an enquiry in the reasons for
deciding the case post haste is not invalid. The court laid down the circumstances
in which enquiry may be held against quasi-judicial authorities.
1. The officer has acted in a manner as would reflect on his reputation for integrity
or good faith or devotion for duty.
2. There is a prima facie case to show recklessness or misconduct in discharge of

duties.
3. Acting in a manner unbecoming of a government servant.
4. Acting negligently and omitting prescribed conditions necessary for discharge of

official duties.
5. Undue favour to a party.
6. Actuated by corrupt motives, however small the bribe may be.

CHAPTER VI
ADMINISTRATIVE FUNCTIONS
• Administrative Functions
• Discretionary Functions
• Judicial Review of Discretionary Functions
• At the Stage of Conferment
• At the Stage of Exercise
ADMINISTRATIVE FUNCTIONS
In Ram Jawaya Kapur vs. State of Punjab, the Supreme Court observed,
“It may not be possible to frame an exhaustive definition of what executive function
means and implies. Ordinarily the executive power connotes the residue of
governmental functions that remain after legislative and judicial functions are
taken away.”
Thus, administrative functions are those functions which are neither legislative
nor judicial in character.
Generally, the following ingredients are present in administrative functions:
1. An administrative order is generally based on governmental policy or

expediency.
2. In administrative decisions, there is no legal obligation to adopt a judicial

approach to the questions to be decided, and the decisions are usually
subjective rather than objective.
3. An administrative authority is not bound by the rules of evidence and

procedure unless the relevant statute specifically imposes such an obligation.
4. An administrative authority can take a decision in exercise of a statutory

power or even in the absence of a statutory provision, provided such decision
or act does not contravene provision of any law.
5. Administrative functions may be delegated and sub-delegated unless there is a

specific bar or prohibition in the statute.
6. While taking a decision, an administrative authority may not only consider the
evidence adduced by the parties to the dispute, but may also use its
discretion.
7. An administrative authority is not always bound by the principles of natural

justice unless the statute casts such duty on the authority, either expressly or
by necessary implication or it is required to act judicially or fairly.
8. An administrative order may be held to be invalid on the ground of

unreasonableness.
9. An administrative action will not become a quasi judicial action merely

because it has to be performed after forming an opinion as to the existence of
any objective fact.
10. The prerogative writs of certiorari and prohibition are not always available
against administrative actions.
CLASSIFICATION OF ADMINISTRATIVE FUNCTIONS
Administrative functions are classified as:
1. Ministerial Functions; and
2. Discretionary Functions
The classification is based on the requirement to apply mind to the facts of the
case. In case of ministerial function, the officer is not required to, and indeed,
prohibited from applying his mind while discharging the function. On the contrary,
in case of discretionary function, application of mind is a must.
MINISTERIAL FUNCTIONS
A ministerial function is an administrative function performed according to
1. pre-determined rules of law,
2. established procedures, and
3. instructions from a superior.
He cannot exercise any individual judgement. If any new situation arises where
there are no pre-determined rules, etc., he has to refer the matter to his superior
officer, and act according to his instructions.
It can be any act a functionary or bureaucrat performs in a prescribed manner,

without exercising any individual judgement or discretion. Ordinarily such a
function is called a clerical function.
DISCRETIONARY FUNCTIONS
Hallmark of discretionary function is application of mind to the facts of a case. An

administrative authority is quite often encountered by new situations, for which
there is no pre-determined rules. He has to apply his mind to the case and take a
decision independently.
Administrative Functions 135
JUDICIAL CONTROL OF DISCRETIONARY FUNCTIONS
Executive power of the government is co-extensive with the legislative power of the
legislature. Hence doctrine of ultra vires may be applied to see
1. whether the executive action is within its competence
2. whether there is violation of fundamental rights
STAGES AT WHICH JUDICIAL CONTROL IS APPLIED
Discretion is controlled by the judiciary at two stages:
1. At the Stage of Conferment of Powers
2. At the Stage of Exercise of Powers
Judicial Control at the Stage of Conferment of Powers
Constitution does not contemplate absolute and unguided discretion. There must
be sufficient guidelines for the exercise of the discretion.
Conferment of Discretion and Art. 14
Ram Krishna Dalmia vs. Justice Tendolkar
It is held that what is prohibited by art. 14 is class legislation and not

classification. The classification may be made by the legislature itself or it may
leave it to the executive by laying down strong policy base and proper guidelines.
West Bengal vs. Anwar Ali Sarkar
The West Bengal Special Courts Act, 1950 provided for establishment of special
courts to try cases or classes of cases or offences or classes of offences for ensuring
speedier trial.
Sec. 5(1) of the Act empowered the State Government to refer at its discretion any
case to Special Court.
The provision was vague and no guidelines were provided to refer a case to the
special court. The executive authorities could arbitrarily refer any case to special
court.
It was held the Act was ultra vires the Constitution as violative of art. 14 insofar as
the conferment of discretion was concerned.
Re the Special Courts Bill, 1978
Supreme Court upheld the validity of the Special Courts Bill which provided for
special court to deal with offences committed by persons who were holding high
posts during the period of emergency in 1975, as they formed a separate class.
The power given to government to refer chosen cases to the special courts was also
upheld as the discretion was backed by the policy of the Act. But, the court held
that abuse of power at the time of emergency fell into a distinct class, but the
abuse before emergency did not.
Satwant Singh vs. Assistant Passport Officer
The Passports Act, 1967 empowering the passport officer to grant or refuse a
passport without specifying any guidelines was held to be invalid.
State of Punjab vs. Khem Chand
Under the powers conferred upon the District Magistrate by the East Punab
Requisition of Movable Property Act, 1947, the District Magistrate, Rohtak
requisitioned the truck of the respondent for famine relief work. The respondent
challenged the validity of the Act on the ground that it violates art. 14 of the
Constitution.
The Court accepted the contention of the respondent and held that the impugned
Act conferred wide discretionary powers on the District Magistrate without laying
down proper guidelines. Even expressions like ‘public purpose’ were not used.
Hence the Act was held to be unconstitutional.
Differential Procedure
In some cases there are two alternative procedures provided in the statute – one
better than the other in some respects. Discretion is given to the authorities to
adopt either of them in their discretion, without providing for any guidelines.
Till 1971 Courts consistently struck such provisions down holding them
discriminatory in nature.
Manohar Lal vs. State of Maharashtra
But in this case, the Supreme Court suddenly turned and held that the discretion
being vested in senior authorities itself was a sufficient safeguard against
discrimination. In this case sec. 187-A of the Sea Customs Act empowered the
authorities to refer a case of smuggled goods to the Magistrate or look into the
matter themselves.
This decision was justified on the ground that where discretion is given to a high
authority, that is in itself a safeguard against abuse of that discretion.
Conferment of Discretion and Fundamental Freedoms
1. Freedom of speech and expression
2. Freedom to assemble peacefully and without arms
3. Freedom to form associations or unions
4. Freedom to move freely throughout the territory of India
5. Freedom to reside and settle in any part of India
6. Freedom to practise any profession, or to carry on any occupation, trade or

business
Reasonable Restrictions Under Arts. 19(2)-(6)
A statutory provision which confers upon an administrative authority unguided

and unrestricted and unlimited discretion in respect of interfering with these
fundamental freedoms is deemed to impose an unreasonable restriction on those
freedoms. Therefore, such conferment of powers will be in violation of art. 19 and
hence unconstitutional.
Art. 19(1)(a) Freedom of Speech and Expression
R. M. Sheshadri vs. DM, Tanjore
The impugned Act required that at the beginning of a movie show in theatres an
approved film of such length and for such duration as the government may direct
should be shown. This provision was held to be unreasonable as there were no
guidelines or limits fixed.
Art. 19(1)(c) Freedom to Form Associations or Unions
State of Madras vs. V. G. Row
The SC struck down a law authorising an administrative authority to declare an

association as unlawful on its subjective satisfaction that the association was
carrying on subversive activities. There were no grounds for such satisfaction and
no judicial review was provided.
Virendra vs. Punjab
A law empowering the government to restrict freedom of press on the ground that
such restrictions were necessary to combat any activity prejudicial to the
maintenance of communal harmony was held. The law here gave right to the
aggrieved party to approach courts.
Art. 19(1)(d) Freedom to Move Freely Throughout the Territory of India
State of Bihar vs. K. K. Misra
Sec. 144(6) of Criminal Procedure Code, 1973 provides that the government may
extend the period of detention order passed by the Executive Magistrate beyond
the period of two months if it considered it necessary for preventing danger to
human life, health and safety or for preventing riot or affray.
It was held that the power is so wide that there is every chance of its misuse.
Art. 19(1)(e) Freedom to Reside and Settle in Any Part of India
Ebrahim Vazir vs. State of Bombay
A statutory provision which authorised the government to impose penalty of

removal of any citizen from India on reasonable suspicion entertained by it that the
person concerned had committed an offence against the permit of law was invalid.
Art 19(1)(f) Freedom to Property
State of Maharashtra vs. Kamal Durgule
Powers conferred upon competent authority to declare land as vacant and acquire
it were found to be unconstitutional.
Art 19(1)(g) Freedom of Trade and Occupation
Dwarka Prasad vs. State of U. P.
A rule requiring a person to take a licence to to stock, sell or store for sale an
essential commodity was upheld. But the provisions empowering the licensing
authority to exempt a person from the requirements was unreasonable.
Harakchand vs. UOI
Gold Control Order which gave blanket power to the authority to grant or refuse to
grant licence to deal in gold was found to be violative of art. 19(1) (g).
Judicial Control at the Stage of Exercise of Powers
Abuse of discretion means, either of the following two things:
(1) Failure to use discretion (not using the discretion at all); and
(2) Improper use of discretion.

1. Failure to use Discretion
This happens where the authority to whom discretion is given does not use the
discretion at all. This may happen in one or more of the following three ways:
(a) acting mechanically
(b) abdication of discretion,
(c) acting under dictation
(d) imposing fetters on discretion
(e) exercise at wrong time
(f) powers coupled with duty
(a) Acting Mechanically
When an authority is invested with discretionary power, he has to use those

powers judiciously. Discretionary powers are given when no rules can be laid down
in advance and decisions are to be taken depending upon the facts and
circumstances of each individual case. But when the authority invested with
discretionary power passes orders without considering the facts of each case, he is
said to act mechanically.
One of the examples of such actions is passing of orders which may be called
cyclostyled orders. Here, the authority has a pre-determined order which he
passes in all case of that particular kind without regard to the special
circumstances of each case. This failure to exercise discretion amounts to abuse of
discretion.
(b) Abdication of Discretion
Where the authority on whom the discretionary power is conferred gives up that
power and allows its subordinate authority to exercise the power, either by way of
sub-delegation or otherwise, the exercise of the power by the subordinate is
invalid.
The power is conferred upon the authority by the legislature as, in the opinion of
the legislature, that authority is competent to take proper decision in the matter.
The subordinate authority which has lesser experience and may have a lesser
qualification is not chosen by the legislature to exercise discretion in that matter,
and hence is not competent.
Sahni Silk Mills vs. ESI Corporation
The discretion conferred by the statute upon the Director General was sub-
delegated by him to the Regional Directors. There was no provision for sub-
delegation in the statute. Hence the sub-delegation was held to be invalid.
But in many cases there is no such reason why the particular authority only is
competent to exercise discretion. In such cases the legislature may choose any
authority to exercise that discretion, just because some authority must be vested
with the power. There is no intention that that particular authority alone should
exercise the discretion. In such cases the legislature, expressly or by implication,
permits sub-delegation. Sub-delegation of discretionary powers becomes valid only
in such cases.
Sub-delegation of functions to be distinguished from taking assistance. Any

superior authority may take the assistance of its subordinates in discharging the
discretionary function. Exercising discretion and discharging discretionary
functions may be distinguished in such cases. The subordinate may assist the
authority in collection of the material necessary for taking the decision, but the
final decision may be taken only by the authority and not by the subordinate
(c) Acting Under Dictation
When the authority having the discretion passes an order under the dictation of
the higher authorities, it amounts to failure to exercise discretion. Abuse of
discretion is given to a particular authority because he is in a better position to
exercise the discretion owing to his position in the hierarchy. A lower authority
normally cannot exercise that discretion because of the lack experience or
knowledge. While the higher authority, though having better experience or
knowledge may not be suitable to exercise the discretion because of the lack of
exposure to ground realities. Therefore, the law has chosen this particular
authority and given discretion to him. Therefore, he alone should exercise the
discretion and its exercise by any other authority including the higher authority
may be improper.
Purtabpore Co. Ltd. vs. Cane Commissioner, Bihar
The Cane Commissioner had the power to reserve sugar cane areas for respective
sugar factories. He had reserved certain areas for the petitioner company. But later
as per the order of the Chief Minister, he 99 villages from these areas. It was held
that the order excluding the said villages was invalid as there was failure to use
discretion by the authority on whom the discretion was conferred.
Commissioner of Police vs. Gordhandas Bhanji
The City of Bombay Police Act, 1902 empowered the Police Commissioner to grant
licences to cinema halls. In exercise of this power the Commissioner granted
licence to a cinema hall. But later, he cancelled that licence under the orders of
the State Government. The cancellation was held to be invalid.
Barium Chemicals vs. Company Law Board
The Central Government ordered investigation into the affairs of the company. It
was challenged on the ground that the investigation might have been ordered as
the minister was personally interested in the company’s affairs. It was held that
suspicion, however strong, cannot take the place of proof.
However, ‘taking advice’ from a more experienced higher authority should be

distinguished from ‘acting under dictation’. The difference is that in case of advice,
the authority is free to follow or not to follow it, while in case of dictation, it is
binding on the authority and he has no option but to follow it.
(d) Imposing Fetters on Discretion
Here, the authority ties his own hands by making some rules. Making the rules for
exercise of discretion in itself may not be wrong or undesired. On the contrary, it
may make the exercise of discretion more uniform and impartial. Only where such
rule making takes away, the authority’s freedom to pass order in the individual
merits of case, it amounts to abdication of discretion and becomes abuse of
discretion.
Gell vs. Tej Noora
In this case, the Commissioner of Police, Bombay was given discretion to grant
license to victorias. The Commissioner of Police prepared a proto-type of Victoria
and kept it in his compound and declared that to get a license, the Victoria must
be exactly similar to that proto-type. This was held to be abuse of discretion.
(e) Exercise at Wrong Time
The discretion must be exercised by application of facts of the case as they stand
at the material time, i.e., when the discretion is to be exercised. If the discretion is
exercised, for example, prematurely, it is no exercise of discretion at all, because
there cannot be application of mind to the relevant facts of the case.
Example
The Grant-in-Aid Code provides that grant-in-aid can be made at the discretion of
the government. The Code requires that the school must be established by the
trust or society and successfully run for a period of five years before it becomes
eligible to apply for grant-in-aid.
The promise of the government that a school if established will be given grant-in-
aid after five years was held to be invalid, because the Code expects that the
government shall exercise its discretion after going into the record of the school
during the first five years.
(f) Powers Coupled with Duty
Statutes often use permissive language to confer powers on the authorities. For
example, the statute may use the words ‘may’, ‘it shall be lawful’ or ‘it may be
permissible’, etc. to confer powers. In such cases there is an option available to the
authority either to exercise or not to exercise the power. Where such power is
coupled with duty, the duty cannot be shirked or shelved, nor can it be evaded.
Haridas Narain vs. ITO
Sec. 35 of the Income-tax Act, 1922 empowered the ITO to rectify a mistake in
assessment either on application made by the assessee or suo motu. It was held
that the power cannot be read in isolation. It has to be read with the other
provisions which provide for the rules governing assessment.
2. Wrong Exercise of Discretion
There are various ways in which the authority upon which the discretion is
conferred uses it for a wrong manner or a purpose.
(a) exercise of discretion in a mala fide manner
(b) unreasonable exercise of discretion
(c) improper exercise of discretion
(i) irrelevant consideration
(ii) leaving out relevant consideration
(iii) mixed considerations
(d) exercise of discretion for improper (collateral) purpose
(e) colourable exercise of discretion
(f) non-compliance of procedural requirements

(g) exercise of discretion in violation of natural justice
(h) exercise discretion without jurisdiction (lack of jurisdiction)
(i) exercise of discretion in excess of jurisdiction
(a) Exercise of Discretion in a Mala Fide Manner
If the discretion is used with bad faith or with a dishonest intention or corrupt
motive, it amounts to abuse of discretionary powers.
G. Sadanandan vs State of Kerala
A kerosene dealer was detained under the Defense of India Rules. The petitioner
pleaded that he was detained in order to give undue advantage to the relative of
the DySP who was in the same trade. It was held that the detention was mala fide
and illegal.
Malice may be either
(i) malice in fact or
(ii) malice in law.
Malice in Fact: Oblique motive.
Pratap Singh vs. State of Punjab
Petitioner was a civil surgeon. He proceeded on leave preparatory to retirement.

Subsequently the leave was revoked, departmental enquiry was initiated against
him and he was suspended.
Contention of the petitioner was that he had family relations with the Chief
Minister, and the Chief Minister wanted some favours from him, which he refused
as the same were unlawful. Hence, to take revenge against him he was subjected
to this harassment.
Rowjee vs. State of A. P.
Malice in Law: Though there may not be any actual malice in deciding the case,
from the way the case is decided or the circumstances in which the decision was
taken, it appears as if there was malice. The burden of proof is on the petitioner to
show those conditions and the burden is very heavy.
Municipal Council of Sidney vs. Campbell
The Council was empowered to acquire land for ‘carrying out improvements in or
for remodelling any portion of the city”. The land was acquired for making a
highway.
(b) Unreasonable Exercise of Discretion
The parent statue is deemed to require the authority to act reasonably. The courts
have also stated that the authority should consider the question fairly and
reasonably before taking action.
The term ‘unreasonable’ means more than one thing. It may embody a host
grounds mentioned already, as that the authority has acted on irrelevant or
extraneous consideration or for an improper purpose, or mala fide, etc. Viewed
thus, unreasonableness does not furnish an independent ground of judicial
control of administrative powers apart from the grounds already mentioned.
‘Unreasonableness’ may also mean that even thought the authority has acted
according to law in the sense that it has not acted on irrelevant grounds or
exercised power for an improper purpose, yet it has given more weight to some
factors than they deserved as compared with other factors. Interference on this
ground requires going into the relative importance of different factors and their
balancing which amounts to substituting the discretion of the judiciary for that of
the executive. Courts do not normally exercise such wide power to interfere in the
exercise of the administrative discretion.
At times, the law may require reasonable administrative behaviour, e.g.,

‘reasonable ground to believe’ by an authority to take action. In several cases the
courts have considered this statutory formula.
Firstly, “reasonable ground to believe” is a condition precedent to taking the

administrative action in question.
Sheo Nath vs. Appellate Assistant Commissioner
The Supreme Court with reference to the phrase used in the Income Tax Act for
initiating reassessment proceedings by the I.T.O. Said:
“The Income Tax Officer would be acting without jurisdiction if the reason for
his belief that the conditions are satisfied does not exist or is not material or
relevant to the belief required by the Section”.
If such a condition precedent is not satisfied so as to make out a prima facie case
the order will be quashed.
Secondly, there should be some basis on which reasonable belief is to be based.

The Supreme Court has held with reference to s. 147 (a) of the Income Tax Act,
1961 that ‘reason to believe’ requires that the belief is to be reasonable or ‘based
on reason which are relevant and material’.
There should be rational and intelligible nexus between the reasons and the belief,
though of course the court will not go into the adequacy or sufficiency of reasons.
It will depend upon the facts of each case whether there was rational and
intelligible nexus between reasons and belief. The reason to believe must related to
the time when the impugned action was taken; any subsequent acquisition of
belief in this regard would not be of any avail. The I.T.O. may act on direct or
circumstantial evidence but not on mere suspicion. If there is some relevant
evidence to support the ‘reasonable belief, the courts would not go into its
adequacy or the merits of the case.
Wednesbury Unreasonableness
Associated Provincial Picture Houses vs. Wednesbury Corporation
In 1947 a cinema company, Associated Provincial Picture Houses, was granted a

licence by the Wednesbury Corporation, the local authority of the market town of
Wednesbury in Staffordshire, to operate a cinema on condition that no children
under 15 were admitted to the cinema on Sundays. Associated Provincial Picture
Houses sought a declaration that such a condition was unacceptable, and outside
the power of the Corporation to impose.
The court held that it could not intervene to overturn the decision of the defendant
simply because the court disagreed with it. To have the right to intervene, the
court would have to form the conclusion that:
1. The Wednesbury Corporation, in making that decision, took into account factors
that ought not to have been taken into account, or
2. The Corporation failed to take into account factors that ought to have been
taken into account, or
3. The decision was so unreasonable that no reasonable authority would ever

consider imposing it.
The court held that the condition did not fall into any of these categories.
Therefore, the claim failed and the decision of the Wednesbury Corporation was
upheld.
The principle of reasonableness has become one of the most active and
conspicuous among the doctrines which have vitalized administrative law in recent
years.
Although the principle itself is ancient, the cases in which it was invoked were few
and far between until 1968 the Padfield case (Padfield vs. Minister of
Agriculture, Fisheries and Food) opened a new era.
Today, on the other hand, it appears in reported cases almost every week, and in a
substantial number of them it is invoked successfully. Its contribution to
administrative law on the substantive side is equal to that of the principles of
natural justice on the procedural side.
This doctrine is now so often in the mouths of judges and counsel that it has
acquired a nickname, taken from a case decided twenty years before Padfield, the
Wednesbury case. The reports now are freely sprinkled with the expression like
‘the Wednesbury principle’, ‘Wednesbury unreasonableness’, or ‘on Wednesbury
grounds’.
As Lord Scarman explained, ‘Wednesbury principles’ is a convenient legal

‘shorthand used by lawyers to refer to the classical review by Lord Greene MR in
the Wednesbury case of the circumstances in which the courts will intervene to
quash a being illegal the exercise of administrative discretion.
One of the grounds of review, he added, is ‘unreasonableness in the Wednesbury

sense’. In the same case Lord Bridge referred to the exercise of power
‘unreasonably in what, in current legal jargon, is called the “Wednesbury sense’.
‘Wednesbury is now a common and convenient label indicating the special review
of administrative disableness which has become the criterion for judicial review of
administrative discretion. It is explained in that context below, where the key
passage from the judgement of Lord Greene MR is set out in full.
In an important ex cathedra statement of the grounds for judicial review Lord

Diplock preferred the term ‘irrationality’, explaining it as ‘what can by now be
succinctly referred to as Wednesbury unreasonableness’.
But it is questionable whether ‘irrationality’ is a better word. Virtually all

administrative decision are rational in the sense that they are made for intelligible
reasons, but the question then is whether they measure up to the legal standard
of reasonableness. “Irrational” most naturally means ‘devoid of reasons’ whereas
‘unreasonable’ means ‘devoid of satisfactory reasons’.
The expression ‘arbitrary and capricious’ is sometimes used as a synonym for

‘unreasonable’, and in one case this has been transmuted into ‘frivolous or
vexatious’ and ‘capricious and vexatious’. But the meaning of all such expression
is necessarily the same, since the true question must always be whether the
statutory power has been abused.
Few of the rounds for holding exercise of discretion unreasonable are:
1. Partial or unequal operation between classes
2. Manifestly unjust
3. Bad faith
4. Oppressiveness
5. Gross interference with the rights of the people that no justification can be
found in the mind of a reasonable man.
(c) Improper Exercise of Discretion
The term ‘wrong exercise’ may include many things or grounds such as
(i) irrelevant consideration
(ii) leaving out relevant consideration
(iii) mixed considerations
(i) Irrelevant Consideration: The discretion should be used judiciously and by

taking proper grounds into consideration. In Brij Mohan vs State of Punjab, it
was held that if improper grounds are taken into consideration, the use of
discretionary powers will amount to abuse.
Berium Chemicals vs. Company Law Board
The Company Law board was empowered to order investigation of the affairs of the
company on certain grounds provided under sec. 237 of Companies Act, 1956. But
the Company Law Board ordered investigation on some other grounds which were
irrelevant. It was held that the order is illegal and void.
Ram Manohar Lohia vs. State of Bihar
The authority was empowered to detain a person to prevent subversion of public

order. The petitioner was detained with a view to preventing him from acting in a
manner prejudicial to the ‘maintenance of law and order’. It was held that ‘law and
order’ was a term much wider in scope than ‘public order’. Therefore, the authority
has to show that the detention is necessary for the maintenance of ‘public order’
and not ‘law and order’.
(ii) Ignoring Relevant Considerations: While exercising discretionary powers, the

authority should take into consideration all the relevant grounds. If the authority
is ignoring any relevant grounds, the decision may be wrong and therefore the
exercise will amount to abuse.
Ashadevi vs. K. Shivraj
The petitioner made a confession under COFFEPOSA but later retracted the
confession. The petitioner was punished on the basis of the confession without
considering the fact that it was later detracted. The authorities did not try to
ascertain whether the petitioner’s confession was voluntary or otherwise.
Rampur Distillary Company vs. Company Law Board
The Company Law Board refused to give its approval for renewing the managing
agency of the company on the ground that Vivian Bose Committee had severely
criticised the dealings of the Managing Director, Mr. Dalmia.
It was held that the order ought to have been passed by taking into consideration
the present conduct of the MD rather than his past conduct only. It was observed
that ‘having regard to’ cannot be the same as ‘having regard only to’.
(iii) Mixed Considerations: In some cases the decision of the authority may be
based on relevant as well as irrelevant considerations.
When such an order is challenged before the Curt, the Court will ignore the
irrelevant considerations on which the order is passed by the authority, and test
the validity of the order only in the light of relevant considerations. If the relevant
grounds alone are sufficient to sustain the order, the order may be upheld even if
an irrelevant factor is considered. If the order cannot be sustained only on the
relevant grounds, and in order to support it irrelevant ground is used, the order
cannot be upheld.
State of Maharashtra vs. Babulal Takka More
Government of Maharashtra superseded the Nagpur Municipal Corporation on the

following two grounds:
1. that the Councillors have, without exercising the proper controls provided by or
under the City of Nagpur Municipal Corporation Act, 1948, have allowed its
financial position to deteriorate rapidly and seriously; and
2. that the Councillors have neglected to undertake the improvement of water

supply and to provide a sufficient supply of suitable water for public and private
purposes.
The Supreme Court held that the opinion of the State Government that the
corporation was not competent to perform the duties imposed on it by or under the
Act, was based on two grounds one of which is relevant and the other irrelevant.
The second ground above was serious enough to warrant action under was
sufficient to establish that the corporation was not competent to perform its duties
under the Act. The fact that the first ground mentioned in the order is now found
not to exist and is irrelevant, did not affect the order. Hence the order was upheld.
Grounds provided for passing an order may be cumulative or alternative. If they

are cumulative, all of them have to be satisfied. If they are alternative, any one of
them may be enough to sustain the order.
In some cases, the show cause notice shows some grounds on which the
concerned authority proposes to pass an order against the person. Whereas when
the order is passed it is based on grounds mentioned in the notice as well as some
additional grounds. In such cases there is a violation of natural justice in respect
of these additional grounds. In such cases, these grounds may be treated as
irrelevant and ignored. If the order can still be sustained on the grounds
mentioned in the notice, it will be upheld, otherwise set aside.
Pyare Lal Sharma vs. J & K Industries Ltd.
The petitioner was dismissed on two grounds, viz., unauthorized absence from duty
and participation in active politics. The show cause notice showed only one of these
grounds, hence, that ground only could be used to dismiss the employee in view of
natural justice.
(d) Exercise of Discretion for an Improper Purpose
Discretion should be used for the purpose for which it has been given. Using it for
some other purpose for which it has not been given, amounts to abuse of power.
Nalini Mohan vs. Ditrict Magistrate
Power was given to the authority to rehabilitate persons displaced from Pakistan
due to communal violence. Rehabilitation to person visiting India on medical leave
was held to be invalid.
Bangalore Medical Trust vs. Muddappa
Piece of land earmarked for residential plot was allotted to medical trust for
construction of a nursing home at the behest of the Chief Minister. The order was
sought to be justified on the ground that the purpose served public interest. The
order was struck down on the ground that it was contrary to the statute.
Hukam Chand vs Union of India
The Divisional Manager, Telephones was given a discretion to disconnect phone in

the event of emergency. He disconnected the petitioner’s phone on the ground that
it was being used for illegal purposes. It was held that it amounts to abuse of power.
(e) Colourable Exercise of Discretion
The power which is given for some purpose may be used though ostensibly for the
same purpose, it is used to achieve some other purpose in reality, it amounts to
colourable exercise of power.
D. C. Wadhat vs. State of Bihar
The Governor promulgated a series of ordinances without bringing the same before
the legislature as it was known that the law would not get legislative sanction.
(f) Non-compliance of Procedural Requirements
Not following the procedural requirements amounts to abuse of discretionary

powers, only where the procedural requirement is mandatory. If it is directory, not
following such procedure does not amount to abuse of discretion.
(g) Exercise of Discretion in Violation of Natural Justice
There are two rules of natural justice:
a) Rule Against Bias
b) Rule of Fair Hearing
Out of these two rules only the first rule is applicable to a discretionary function.
The second rule is not applicable.
Rule Against Bias: Though this rule of natural justice has to be satisfied for the
validity of order passed in the exercise of discretionary function, in some cases,
doctrine of necessity permits deviation from this rule. Especially departmental bias
is tolerated because of necessity.
Rule of Fair Hearing: As there is normally only one party before the authority,
and it has all the information of the proceedings, rule of fair hearing is not
applicable to discretionary functions.
Example
A person approaches an authority for a licence. The authority has discretion to

grant or refuse to grant licence. All the material on which the authority may
exercise its discretion is either provided by the party, or already known to the
party. Hence, no separate hearing is necessary.
However, in some cases, the authority may pass an order against a person in the
exercise of its discretion. In such cases, the person against whom the order is
sought to be passed may not know on what grounds the order is to be passed. In
such cases, the statute empowering the authority to pass such orders, itself
provides for a requirement of fair hearing. In such cases, rule of fair hearing is
applicable to discretionary functions, and an order passed without observing the
rule of fair hearing will be invalid.
Some statutes, though provide for an opportunity of being heard to a person

against whom an order may be passed under the provisions of that statute, put
the burden on the party himself.
The Patents Act, 1970
Sec. 14 Consideration of the report of examiner by Controller: ... the

Controller, ... shall, if so required by the applicant within the prescribed period,
give him an opportunity of being heard .4
In such cases, the party will have a right of being heard only if he demands it. If
the party does not demand hearing, the concerned authority may pass the order
without hearing him. Further, the demand shall be made within a prescribed time.
Otherwise, hearing need not be given even if demanded. Order passed without
hearing the affected party will not be invalid. Only where the party demands
hearing, and the demand is made within the prescribed period, order passed
without hearing will be invalid.
(h) Exercise of Discretion Without Jurisdiction
Where the authority has exercised the discretion without having any jurisdiction
for exercising the same, the order of the authority is invalid. This normally
happens when the authority commits mistake of jurisdictional facts, or where the
constitution of the authority is itself wrong, etc.
(i) Exercise of Discretion in Excess of Jurisdiction
When the powers are given to an authority, they should be used within the
statutory limits. If the authority exceeds this limits it amounts to abuse of
discretion.
G. E. S. Corporation vs. Worker’s Union
The authority had been given power to reimburse, the medical claims of the
employees, reimbursing medical claims of the family meant for the employees was
held to be in excess of the powers.
4 14. Consideration of the report of examiner by Controller: Where, in respect of an

application for a patent, the report of the examiner received by the Controller is
adverse to the applicant or requires any amendment of the application, the
specification or other documents to ensure compliance with the provisions of this Act
or of the rules made thereunder, the Controller, before proceeding to dispose of the
application in accordance with the provisions hereinafter appearing, shall
communicate as expeditiously as possible the gist of the objections to the applicant
and shall, if so required by the applicant within the prescribed period, give him an
opportunity of being heard.
CHAPTER VII
STATE LIABILITY
• Liability of State under Constitution

• Government Contracts
• Liability in Contracts
• Liability in Torts
LIABILITY OF STATE UNDER CONSTITUTION
State acts in two capacities. One as a sovereign, and the other, as a corporate
person, in which capacity its position is not much different from the position of an
ordinary person. The State, as a corporate person, may be governed by some
special provisions of law only because of its peculiar position.
Thus, depending upon circumstances, State is bound by
1. the same law as an ordinary person is, or
2. a special law or
3. a special law in addition to the ordinary law.
In case of contracts, art. 299 of the Constitution provide for certain special
requirements in addition to the requirements of Indian Contract Act, 1872, while
in case of torts, generally, it is bound by the same law as an ordinary person.
CONTRACTUAL LIABILITY
Art. 298, 299, 300 of the Constitution deal with the state contracts. 298 enable
the government to enter into contract for the purpose of carrying out the function
of the State. Art. 299, gives the essential formalities, which the government must
fulfil while entering into contract. Art. 300 deals with the enforcement of the State
liability.
These articles are not the complete law in respect of the state contracts. In
addition to these provisions, the Indian Contract Act, 1872 is also applicable.
Therefore, government contracts must also fulfil sec. 10 of the Contract Act, which
deals with the essential requirements of a valid contract. Sec. 25 deals with
consideration and secs. 73, 74 and 75 deal with the determination of the quantum
of damages are also applicable. But some of the provision such as the provision
relating to capacity on the ground of age and mind are not applicable to the
government.
Art. 300 points out that the liability of the Union of India and States will be the
same as that of the dominion of India and the provinces under the Government of
India Act, 1935. The Act of 1935 provides that the liability of the dominion of India
and Provinces will be same as the position mentioned under the government of
India (GOI) Act, 1915. The GOI Act, makes a similar reference, to the GOI Act,
1858. Under the GOI Act 1858, the liability of then GOI is the same as that of the
East India Company.
The crown in England enjoyed immunity being sovereign, but, the East India
Company which was essentially a commercial concern was not entitled to the
sovereign immunity.
In Bank of Bengal vs. United Company, the Supreme Court of Bengal held that the
company had no sovereign character, and could not escape liability under the
promissory notes.
But in Narendra Chandra vs. Union of India, the court held that auction of Ganja
license, being a method of collection of tax, was a sovereign function and therefore,
the highest bidder could not succeed in a suit for specific performance of the
contract. The company was alone to enjoy this sovereign immunity. However, this
proposition of immunity arising out of sovereignty was not followed by the courts
in India in subsequent cases.
However, the Government cannot be equated with an industrial concern because it

has got some special responsibilities. Moreover, if an individual suffers loss, it will
be his personal loss. But if the government suffers loss, it will affect the public and
therefore, some privileges and safeguards are necessary not in the interest of the
government but in the interest of the public.
Art. 299 mentions three important and mandatory formalities which should be
fulfilled by the government while entering into the contract.
1. The contract must be expressed to be made by the President /Governor as the

cases may be.
2. The contract must be executed on behalf of the President or the Governor as

the case may be.
3. The contract must be executed by a person authorized by the President or

Governor as the case may be.
It has been held that these constitutional provisions are inserted not merely for
the sake of formality but to protect the government from unauthorized contracts.
Though the word expressed in the contract might suggest that the government
contract must be in some particular form, the Supreme Court has held that formal
document need not be executed.
State Liability 157
Union of India vs. A. L. Ralia Ram
The Chief Director of Purchase (Disposals) of the Food Department of the GOI,
invited tenders for the purchase of American Cigarettes. The tender of the party
included an arbitration clause. It was argued by the government that this
arbitration agreement was not properly executed.
But the Supreme Court brushed the contention aside and upheld the arbitration
agreement because it had complied with all the requirements of art. 299 though it
was not in any particular form. However, if any other law, which is applicable to
the government, requires that the agreement must be in a particular form, then
the agreement would not be valid unless it is in that particular form.
It is required that the competent authority must execute the contract on behalf of
the President of India or the governor as the case may be and if it is not so
mentioned, the contract will be invalid because it is also a mandatory condition. In
order to mitigate the harshness of this ruling the Supreme Court held that if a
competent authority has signed the contract in its official capacity, it will be
sufficient compliance with the requirements of art. 299.
The contract must be signed by an authorized person is the most important

condition of this rule. However, art. 299 does not provide for any specific mode of
authorization. Therefore, the usual procedure of notification in the official gazette
for this purpose.
To avoid the hardships which this requirement may entail, Supreme Court has
held that in the absence of any specific authorization, implied authorization may
be considered as substantial complaisance with this requirement.
State of Bihar vs Karamchand Thaper & Brothers Ltd
The respondent company, entered into certain construction contract with the
government of Bihar. After the completion of the contract a dispute arose and the
matter was refereed to arbitration by an agreement between the parties. The
matter was decided in favour of the party who filed an arbitration suit for
converting the award into decree. This suit was countered by the government on
the ground the arbitration agreement was not executed by the secretary for PWD
who was the only authorized person.
The company contended that the executive engineer who signed on the agreement
was an authorized person because he was authorized by the secretary to sign the
agreement. The whole procedure of correspondence and negotiation showed that in
every state, the executive Engineer had contacted the secretary and sought
instructions from him.
Therefore, the court held that the executive engineer was impliedly authorized to
sign the agreement and it was a valid agreement.
If the agreement does not fulfil the requirement of art. 299, the question is
whether the Government may ratify the same. Ratification presupposes existence
of requirements of valid contract. Therefore, in Mulamchand vs. State of M. P., the
Supreme Court held that in a case where requirements art. 299 are not fulfilled,
the government cannot ratify the agreement.
Then the next question is whether the party can claim the benefit of sec. 70,
230(iii) or 235 of the Contract Act. Sec. 70 does not pose much problem.
New Marine Construction Company vs. Government of India
The Supreme Court held that the government must compensate for the coal, which
was supplied to it and consumed by it even though the agreement did not fulfil the
requirement of Art. 299. Thus whether the government has obtained the benefit, it
has to pay for it.
But the complication arises when the government does not get the benefit under
the contract.
State of U. P. vs. Murarilal & Brothers
An officer was not authorized by the government entered into a contract with the
respondent for a space in the cold storage facility for potatoes, which the
government was expecting to get. The respondents reserved the space in the cold
storage unit. But the department did not get the potatoes.
It was held that, as the contract did not fulfil the requirements of art. 299, it was
not enforceable. Because the government did not derive any benefit under the
contract, sec. 70 did not apply.
Secs. 230 and 235 presuppose a valid contract and therefore, these sections are
also not applicable to a case where the contract is invalid because of non-
compliance with art. 299.
TORTUOUS LIABILITY
The law of early England the King enjoyed complete sovereign immunity and was
not liable for any wrongs. This rule was based on several grounds such as,
• Application of the maxim Rex non potest peccare (King can do no wrong).
• King legislates for the subjects not for himself.
• King cannot be tried by his own courts.
In 1964, the Crown Proceedings Act changed the law in England on this point and
now the King can be sued in the Courts of England.
State Liability 159
State liability in India is defined by the art. 300(1) of the Constitution in a very
peculiar way. It provides that the liability of the Union of India and the states is
the same as the liability of Government of India under sec. 176 of the Government
of India Act, 1935. Sec. 176 of the Government of India Act, 1935 refers back to
Sec. 32 of the Government of India Act, 1915, which in turn refers to sec. 65 of the
Government of India Act, 1858. Sec. 65 the Act of 1858 in turn provides that the
Government of India and Government of each State are liable in the same was as
the East India Company. For knowing the liability of the Government of India,
often the Peninsular & Oriental Steam Navigation Co. vs. Secretary of State for India
Case is referred.
PRE CONSTITUTIONAL DECISIONS

Peninsular & Oriental Steam Navigation Co. vs. Secretary of State for India
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.
The Supreme Court observed that the doctrine that the ‘King can do no wrong’,
was not applicable to the East India Company. The company would have been
liable in such cases and the Secretary of State was thereafter also liable.
Though it was not necessary, Sir Barness Peacock, CJ, made a distinction between
sovereign and non-sovereign functions it was held that if a tort were committed by
a public servant in the discharge of sovereign functions, no action would lie
against the Government e.g., if the tort was committed while carrying on hostilities
or seizing enemy property as prize.
The aforesaid judgement laid down that the East India Company had a two fold
character:
(a) As a sovereign power and
(b) As a trading company.
and held that as in the present case the act was a non-sovereign act, the company
was liable.
This caused some courts to hold that the government is not liable if the act is done
while discharging sovereign function, while some courts held that the government
cannot escape liability even if the act was done while discharging sovereign
function.
Nobin Chander Dey vs. Secretary of State
The plaintiff in this case contended that the Government had made a contract with
him for the issue of a licence for the sale of ganja and had committed breach of the
contract. Calcutta High Court held that upon the evidence, no breach of contract
had been proved. Secondly even if there was a contract, the act had been done in
exercise of sovereign power and was thus not actionable.
Secretary of State vs. Hari Bhanji
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.
This is the correct provision and it was followed and confirmed in Salman vs
Secretary of State for India in Council. The Law Commission of India also accepted
it as correct.
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.
POST CONSTITUTIONAL DECISIONS

Though East India Company had some sovereign powers, it was basically a
business concern. Therefore, it did not enjoy sovereign immunity when it was
acting as a business concern. It was allowed sovereign immunity when it
undertook sovereign functions.
Government of India and state Governments are fully sovereign bodies. Therefore,
it was not necessary to draw the distinction between sovereign functions and non-
sovereign functions in case of Government of India and state Governments.
But immediately after Independence, there was severe poverty and unemployment
among Indians. Therefore, India adopted welfare government. In order to create
employment opportunities for the people, governments undertook business
activities. These activities were non-sovereign activities. As a result the distinction
between sovereign and non-sovereign functions continued even after independence
State of Rajasthan vs. Mst. Vidyawati
The claim for damages was made by the dependants of a person who died in an
accident caused by the negligence of the driver of a jeep maintained by the
State Liability 161
Government for official use of the Collector of Udaipur while it was being brought
back from the workshop after repairs. The Rajasthan High Court took the view-that
the State was liable, for the State is in no better position in so far as it supplies
cars and keeps drivers for its Civil Service. In the said case the Hon’ble Supreme
Court has held as under:
“Act done in the course of employment but not in connection with sovereign
powers of the State, State like any other employer is vicariously liable.”
State of Bihar vs. Abdul Majid
Right of a government servant to recover arrears of his salary from the government
by instituting a suit was upheld. The Court observed:
“When the rule of immunity in favour of the Crown, based on Common Law in
the United Kingdom, has disappeared from the land of its birth, there is no
legal warrant for holding that it has any validity in this country, particularly
after the Constitution.”
Thus, in several cases the government was denied immunity claimed by it on the
ground of sovereign function, but in Kasturilal’s case again the sovereign
immunity was applied.
Kasturi Lal Ralia Ram vs. State of U. P.
Partner of Kasturilal Ralia Ram Jain, a firm of jewellers of Amritsar, had gone to
Meerut for selling gold and silver, but was taken into custody by the police of the
suspicion of possessing stolen property. He was released the next day, but the
property which was recovered from his possession could not be returned to him in
its entirety inasmuch as the silver was returned but the gold could not be returned
as the Head Constable in charge of the malkhana took it and fled to Pakistan.
The firm filed a suit against the State of U. P. for the return of the ornaments and
in the alternative for compensation. It was held by the Apex Court that the claim
against the state could not be sustained despite the fact that the negligent act was
committed by the employees during the course of their employment because the
employment was of a category which could claim the special characteristic of a
sovereign power.
The court held that the tortuous act of the police officers was committed by them
in discharge of sovereign powers and the state was therefore not liable for the
damages caused to the appellant.
However, after this again the courts have given relief to the citizens against state
in several cases.
Satyawati vs. Union of India
An Air Force vehicle was carrying hockey team of Indian Air Force Station to play a
match. After the match was over, the driver was going to park the vehicle when he
caused the fatal accident by his negligence.
It was argued that it was one of the functions of the Union of India to keep the
army in proper shape and tune and that hockey team was carried by the vehicle for
the physical exercise of the Air Force personnel and therefore the Government was
not liable.
The Court rejected this argument and held that the carrying of hockey team to play
a match could by no process of extension be termed as exercise of sovereign power
and the Union of India was therefore liable for damages caused to the plaintiff.
Union of India vs. Smt. Jasso
A military driver while transporting coal to general head-quarters in Simla in

discharge of his duties committed an accident. It was held that the mere fact that
the truck happened to be an army truck and the driver was a military employee
cannot make any difference to the liability of the Government for damages for the
tortuous acts of the driver as such things could be obviously done by a private
person also.
Union of India vs. Sugrabai
The Bombay High Court overruled the plea of sovereign immunity when a military
driver driving a motor truck carrying a Records Sound Ranging machine from
military workshop to military school of artillery killed a cyclist on the road. It was
held that the driver was not acting in exercise of sovereign powers.
Pushpa Thakur vs. UoI
The judgement of the Apex Court in this case has settled the dichotomy between
sovereign and non-sovereign functions and settled once for all in clear terms that
the doctrine of sovereign immunity has no application so far as claims for
compensation under the Motor Vehicles Act are concerned.
Sovereign and Non-sovereign Functions Distinguished (N. Nagendra Rao vs. AP)
In N. Nagendra Rao vs. State of AP, the Supreme Court observed, “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
State Liability 163
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 (the) 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 impracticable. It would be in conflict with even modern
notions of sovereignty.”
Analysis of Judgement in Nagendra Rao Case

(a) Non-existence of the distinction: “In the modern sense, the distinction between
sovereign or non-sovereign functions does not exist”.
(b) Non-liability for political acts: One of the tests is, whether the State is
answerable for such actions in courts of law. Examples of non-liability are
functions which are indicative of external sovereignty and are political in nature,
(such as) defence, foreign affairs, etc.
(c) Immunity ends with political acts: Immunity ends with political acts, described
above. “No legal or political system can place the State above (the law), as it is
unjust and unfair for a citizen to be deprived of his property illegally by (the)
negligent act of officers of the State without any remedy. Statutory power is to be
viewed as a statutory duty.”
(d) The demarcating line – primary and inalienable functions The demarcating
line between “sovereign” and “non-sovereign” powers, has largely
disappeared. “Therefore, barring functions such as administration of justice,
maintenance of law and order and repression of crime etc. which are among the
primary and inalienable functions of a constitutional Government, the State
cannot claim any immunity.”
(e) Misfeasance doctrine: Vicarious liability of the State is linked with the
negligence of its officers. “The law of misfeasance in discharge of public duty
having marched ahead, there is no rationale for the proposition that even if the
officer is liable, the State cannot be sued.”
(f) Kasturi Lal’s case – inalienable functions: Kasturi Lal case was related to
powers of arrest, search etc. “The power to search and apprehend a suspect
under the Criminal Procedure Code is one of the inalienable powers of the State.”
In State of A.P. vs. Chella Ramakonda Reddy which was approved in State of
A.P. vs. Chella Ramakrishna Reddy it was held that sovereign immunity is not
applicable to the cases in public domain i.e., in cases of writ petitions under
arts. 32 and 226 of Constitution of India and also in tort cases where death is
caused.
CHAPTER VIII
JUDICIAL REVIEW
• Introduction
• Basic Doctrines
• Public Law Review and Private Law Review
• Writ Jurisdictions of the HCs & the SC
• Locus Standi and PIL
• The Five Types of Writs
• Other Constitutional Remedies
• Statutory Judicial Remedies
INTRODUCTION
PUBLIC LAW REVIEW AND PRIVATE LAW REVIEW
Judicial review of administrative action falls under two heads:
1. Public Law review
2. Private Law review
PUBLIC LAW REVIEW

Public law regime is one which imposes duties towards public at large and makes
the government responsible to the public. On the other hand private law regime
imposes duties towards private individuals and makes government to the
individual concerned. Public law duties arise normally under the Constitution,
though quite often they may arise out of statutes or even Rules made under
statutes. Private law duties almost invariably arise under statutory law or common
law principles.
Public law review is done through writ jurisdiction while private law review falls
under the statutory provisions applicable to the relevant case. Public Law review is
done by the higher judiciary, i.e., High Courts and the Supreme Court, while
private law review is done by the subordinate judiciary through suits. Main types
of liabilities enforced under the private law review are tortuous and contractual
liabilities arising under art. 300.
JUDICIAL REVIEW AND APPEAL

Appeal is a right of a party to challenge the order of a lower authority before a
higher authority. Both the authorities belong to the same department. Hence, their
powers and functions are same. Therefore, if the higher authority finds fault with
the order of the lower authority, it may correct that order. This is nothing but
substituting the erroneous order of the lower authority with order of the higher
authority.
A judicial review is review of an order or action of the executive authority by the

judiciary. Powers and functions of the judiciary are different from those of the
executive. Therefore, if the order of the executive authority is erroneous, Court can
strike it down. It cannot correct it. Because correcting the order of the executive
authority would amount to discharge of executive function by the judiciary.
DOCTRINE OF LEGITIMATE EXPECTATION
Where a sudden change in government policy adversely affects the interests of a

person, he may challenge the change on the ground that his legitimate
expectations are belied. Thus the doctrine is against the arbitrary use of powers.
The plea is available when the government does not exercise its discretion on the
expected lines. Usual examples of such cases are refusing to renew contracts and
sudden discontinuation of a scheme, etc. Where normally a contract is renewed as
a matter of routine after the expiry of the term, unless there is a specific ground of
irregularity, breach of conditions, etc., non-renewal or non-extension are treated
as breach of legitimate expectations. It may also appear to be arbitrary when in
other cases which are similarly positioned there is a routine renewal and in the
case of an individual there is no such renewal. This may happen due to taking into
consideration irrelevant facts, or due to mala fide exercise of powers.
Supreme Court has developed the doctrine to avoid arbitrary exercise of powers by
the state using art. 14 and requirement of reasonableness. The early instance of
the application of the doctrine is found in State of Kerala vs. K. G. Madhavan Pillai.
State of Kerala vs. K. G. Madhavan Pillai
Government issued a sanction order to the respondents to open a new unaided

school and to upgrade the existing ones. After 15 days, it issued another order
keeping the sanction in abeyance. This order was challenged on the ground of
violation of natural justice.
It was held that the first order created a legitimate expectation in the respondents
and the same was belied by the second order. Hence it was invalid.
Scheduled Caste and Weaker Section Welfare Association vs. State of

Karnataka
The government issued a notification in which certain areas were listed where sum
clearance was to be undertaken. Subsequently, the government issued another
notification revising the list. In the second notification many areas which were in
the first list were left out. It was challenged on the ground that no hearing was
given to the residents of the areas which were dropped in the second list. This was
upheld by the court.
Navjyoti Co-operative Housing Society vs. UoI
The development authority changed the order of priority for the allotment of land
to co-operative societies from ‘serial number of registration’ to ‘date of approval of
the list of members’. No notice or hearing was issued to the applicants before
making the change. The order was quashed on the ground of violation of legitimate
expectation.
Judicial Review 169
Often to such cases Wednesubury principles are applied.
Union of India vs. Hindustan Development Corporation
There was no fixed procedure for fixing price and quantity for the supply of the
food grains. The government wanted to break a cartel in the public interest. In
order to achieve that the government introduced dual pricing system (lower price
for big suppliers and higher price for small suppliers). It was held that there was
no denial of legitimate expectation as the same was not based on any law, custom
or past practice.
The Supreme Court pointed out that time is a three-fold present: the present as we
experience it, the past as a present memory and the future as a present
expectation.
For the purposes of law expectation cannot be the same as anticipation. It is

different from a wish, desire or hope nor can it amount to a claim or demand on
the ground of a right... A pious hope cannot become a legitimate expectation.
The legitimacy of an expectation can be inferred only if it is founded on the

sanction of law, or custom or an established procedure followed in a natural and
regular sequence.
State of West Bengal vs. Niranjan Singh
The agency was granted right to collect tools. The government instead of renewing
or extending the contract asked the party to enter into a new contract in which
higher rates were quoted. Supreme Court held that the doctrine could not be
invoked to prevent the state from earning higher revenue.
Food Corporation of India vs. Kamadhenu Cattle Feed Industries
The Food Corporation of India called for tenders for sale of stocks of damaged food
grains. The respondent was the highest bidder. All the parties who had given
tenders were called for negotiation. While al others raised their offers, the
respondent did not. When the tender was passed to the highest quoter, the
respondent challenged the grant on the basis of legitimate expectation which he
had, being the highest bidder. The High Court accepted his contention and
quashed the grant.
Supreme Court while reversing the decision held that though the respondent was
the highest bidder, he had no right to have it accepted. If the Food Corporation
believes that the highest bid is not adequate, it may reject it.
Madras City wine Merchants’ Association vs. Tamil Nadu
Rules relating to renewal of liquor licences were statutorily altered by repealing

existing rules. It was held that legislative action cannot be prevented by applying
the doctrine of legitimate expectation.
National Building Contruction Co. vs. S. Raghunathan
It was held that the concept of ‘detriment’ is applicable to the doctrine of legitimate
expectation. Therefore, it held that for its application there are two requirements:
1. reliance on representation
2. resultant detriment.
The court observed that though the government has the power to change its policy
in the public interest, still the courts can look into the proportionality of change in
policy and see whether the legitimate interest has been properly balanced against
the need for change.
But, the courts cannot not transgress the Wednesbury principle. Courts cannot
look into the merits of the policy. Hence, unless the change of policy is so
outrageous that no sensible person who had applied his mind to the question to be
decided could have arrived at it, Court will not interfere because flexibility
necessarily inherent in this principle must not be sacrificed on the altar of legal
certainty.
Attorney General for New South Wales vs. Quin
The House of Lords held that doctrine of legitimate expectation gives rise to
procedural rights only and not to substantive rights.
Punjab Communications Ltd. vs. UoI
But Supreme Court of India has held that the legitimate expectations may be both
procedural as well as substantive. The procedural part of the expectations is that a
hearing or any other appropriate procedure will be followed before the change is
made. The substantive part is that the benefit of a substantive nature will be
granted or will be continued.
DOCTRINE OF PUBLIC ACCOUNTABILITY
Accountability simply means that if a public officer abuses his office, either by an
act of omission or commission, and in consequence of that there is an injury to an
individual or the public at large, he must be held responsible for it.
Once a top bureaucrat casually remarked that the main problems of the
administration in India are:
1. Faulty planning;
2. corrupt execution; and
3. absence of public accountability.
Judicial Review 171
No one would perhaps disagree with this statement. Out of these three problems,
public accountability is basic, in the sense that if the guilty are punished quickly
and adequately, it will take care of the other two problems. Unfortunately, today
the procedures of accountability are either non-existent or are very feeble and
fragile, besides being dilatory, and any person with sufficient money power or
personal connections can bend them in any manner he likes.
In the name of enforcing liability, what one sees is merely shadow-boxing. The
manner in which the Central Vigilance Commission Ordinance pulled down the
directives of the apex court is a pointer in that direction. It is for this reason alone
that the Lok Pal Bill has failed in its every attempt since 1968 to see the light of
the day.
The basic purpose of the doctrine of public accountability is to check the growing
misuse of power by the administration and to provide speedy relief to the victims
of such exercise of power. The doctrine is based on the premise that the power in
the hands of administrative authorities is a public trust which must be exercised
in the best interest of the people. Therefore, the trustee (public servant) who
enriches himself by misusing his office must hold the property/benefit acquired by
him as a constructive trustee.
The celebrated decision of the Privy Council in the A. G. of Hong Kong vs. Reid
(1993) case has greatly widened the scope of this principle.
A. G. of Hong Kong vs. Reid
In this case, the respondent, Reid, who was a Crown prosecutor in Hong Kong,
took bribes as an inducement to suppress certain criminal prosecutions, and
acquired properties in New Zealand in his name, in the name of his wife and his
solicitor. The administration of Hong Kong claimed these properties on the ground
that the owners thereof are constructive trustees for the Crown.
The Privy Council upheld the claim. It observed that if the theory of constructive
trust is not applied and properties attached when available, the danger is that
properties may be sold and proceeds whisked away to some ‘numbered bank
account’.
The Court further observed that one can understand the immorality of the bankers
who maintained numbered bank accounts but it is difficult to understand the
amorality of the governments and their laws which sanction such practices — in
effect encouraging them.
Judicial response in India is based on this concept of trust and equity which was
developed in Reid’s case. Thus while deciding the constitutionality of sec. 3(1)(c) of
the Smugglers and Foreign Exchange Mani-pulators (Forfeiture of Property) Act,
1976 (SAFEMA), which provided for the forfeiture of properties earned by
smuggling or other illegal activities whether standing in his name or other parties,
the apex court took recourse to the principle of trust and equity.
D. D. A. vs. Skipper Construction Co., (1996)
The Supreme Court not only further followed the above principle but enlarged its
scope by stating that even if there was no fiduciary relationship or no holder of
public office was involved, if it is found that someone has acquired properties by
defrauding the people, and if it is found that the persons defrauded should be
restored to the position in which they would have been but for the said fraud, the
court can go ahead with the necessary orders.
Thus, the concept of public accountability was extended to the private sector
which is very relevant in this age of privatisation and globalisation of economy.
JMM Bribery Case
Moving swiftly in the direction of enforcing accountability, the apex court in this
pace-setting judgement held that members of Parliament and legislative
assemblies are public servants under the Prevention of Corruption Act.
The Court further observed that these members cannot also claim exemption from
prosecution under art. 105(2) of the Constitution regarding protection of privileges
of M.P.s and M.L.A.s for any offence committed outside Parliament or legislature.
The Court held that art. 105(2) could not be interpreted as a charter of freedom of
speech and also freedom for corruption. Parliamentary privilege cannot provide
immunity against corruption and bribery.
Thus, by redefining the role of the state, fixing accountability at all levels and
transparency in the administration, the court is simply trying to make government
function better in the interest of the people. It is unfortunate if it is being
considered by the government as interference in its area of operation.
In the present-day context, strengthening of the public accountability system

should be the top priority of the government. Any system has three components:
structures and procedures; persons who manage the system; and environment in
which the system works. Improvement is required in all the three components.
Every holder of public power, where public element is present, should consider
himself a trustee of society and must exhibit honesty, integrity, sincerity,
faithfulness and transparency in all facets of public administration.
DOCTRINE OF PROPORTIONALITY
The order of an authority which is by the way of punishment should be

proportionate to the wrong committed by the person. If it is excessive, it is called
disproporionate and is liable to be struck down.
Judicial Review 173
Hind Construction vs. Workmen
The workmen demanded a holiday which was refused by the management. All the
workmen remained absent on the day treating it as a holiday. The management
dismissed all of them. It was held that the punishment was disproportionate to the
wrong committed.
Ranjit Thakur vs. UoI
The petitioner who was in army was sentenced to rigorous imprisonment and was
dismissed from service by court martial for insubordination as he refused to eat
the food offered to him. The order was struck down as disproportionate to the
wrong committed.
PROCEDURAL ASPECTS
DOCTRINE OF STANDING
It is a basic principle of law that to approach a Court for relief, a person must have
a cause of action. A person has a cause of action if his rights are violated. If a
person’s rights are not violated he cannot approach a Court of law. One cannot
approach a Court of law seeking redressal for the violation of some other person’s
rights, however close that person may be to him. Thus, husband cannot approach
a Court of law seeking relief for his wife.
A husband approaching a Court under a power of attorney from his wife is a

different case. Here, the husband is not approaching the Court on his own behalf,
but as an agent of his wife. Act of the agent being act of the principal, this case
will be deemed to be instituted by the wife herself, whose rights are violated.
Hence there is no breach of the rule of locus standi.
Another basic principle of law is that Courts do not pass orders or judgements
either against or in favour of a person who is not a party to the case. Therefore, a
person who has a claim has to be a party to the case. If some other person
institutes the case, the Courts cannot entertain the same. This gives rise to the
doctrine of locus standi.
Locus Standi
Ubi jus ibi remedium (where there is a right there is a remedy), means where there
is a violation of a right there is a remedy. Hence a person whose rights are violated
can sue the person who has violated his right. Conversely, a person whose rights
are not violated cannot sue. In other words, only the aggrieved person 5 can sue.
This is called the rule of locus standi. Literally, locus means place and standi
means to stand. Therefore, locus standi literally means place to stand in the court,
i.e., right to sue.
For getting a right to sue, a person must show fulfilment of three requirements:
1. Injury: That there is a violation of his right.
2. Causation: The violation is caused by defendant’s wrongful act or omission.
3. Redressability: That violation has a remedy in the law, and that remedy is not
illusory.
Exceptions to the Rule of Locus Standi
1. Criminal cases
2. Environmental cases
3. Habeas corpus
4. Public Interest Litigation
Class Actions
A class action is one which is a case instituted by one or a few on behalf of all who
are aggrieved.
There are two important class actions available under the Indian law.
1. Representative suit under Order I, Rule 8 of Code of Civil Procedure, 1908
2. Public Interest Litigation (PIL also called SAL – Social Action Litigation)
5 Literally an ‘aggrieved person’ means a person whose rights are violated. But here, for
the application of rule of locus standi, it means a person who alleges that his rights are
violated. Because, whether a person has locus standi to institute the case has to be
determined at the early stage of the case, and whether there is violation of his rights is
determined at that last stage. If the court holds that his rights are violated, that ends
the case itself. Therefore, here by ‘aggrieved person’ we mean that the person is
alleging that his own rights and not the rights of some other person are violated.
Judicial Review 175
Public Interest Litigation
Recent decisions in all countries where the Anglo-American system of justice has
been adopted have taken the view that where State action has caused injury to the
general public as distinguished from particular individuals, it would be the duty of
the State, under a democratic system, to afford relief against maladministration, in
litigation brought by any member of the public, without insisting that the
petitioner must be one who has been particularly affected by the public wrong in
question.
But that does not mean that in all cases of PIL the petitioner need not have any
relation to the relief. The only difference between normal litigation and PIL in this
respect is that, in normal litigation, there should be a clear and specific allegation
that the party’s right has been violated. In PIL this may be stated in general.
Therefore, we have different ‘standings’ for initiating a PIL. These are:
1. Class standing
2. Public injuries standing
3. Public duties standing
4. Public concern standing
Only the last one may be said to be an exception to the rule of locus standi.
1. Class Standing
A person may challenge an action when he has a right common with others.
Kalyan Singh vs. State of Punjab
A tax-payer was held to have locus standi to prevent misapplication or

misappropriation of public funds by an authority. He need not show how the State
act affect him personally, as is required in a normal litigation, but it is enough for
him to show how the State act affects him as a member of a class, for example, tax
payers in this case.
2. Public Injuries Standing
There may be cases where the State may act in violation of a Constitutional or
statutory obligation or fail to carry out such obligation resulting in injury to public
interest or what may conveniently be termed as public injury as distinguished
from private injury. If no one can maintain an action for redress of such public
wrong or public injury, it would be disastrous for the rule of law, for it would be
open to the State or public authority to act with impurity beyond the scope of its
power or in breach of public duty owed by it. The party, here also, need not show
how he is affected by the State act, but being a member of public itself is enough
to enable him to initiate proceedings.
3. Public Duties Standing
Where the State has failed to discharge a mandatory duty towards the public,
every member of the public is aggrieved by the failure, and has locus standi to
initiate the proceedings.
4. Public Concern Standing
This is the real exception to the rule of locus standi. Often, where there is a lapse
in functioning of the State, the very officers who have caused that lapse have the
locus standi to bring action. For example if case of illegal felling of trees or
poaching of animals in a forest, the forest officers who have colluded in that are
the persons who can prosecute the culprits. But, as the officers are also involved
in the acts, they will not prosecute the culprits. Hence, the Courts have to allow
people who have public spirit to allow to initiate the proceedings. Otherwise such
cases will not go to Courts at all. Similarly, in many cases due to illiteracy, poverty
or lack of liberty, an aggrieved person may not be able to approach the Court. In
such cases also Courts allow a third person who has no legal interest at all in the
case.
RES JUDICATA
Res means thing and judicata means adjudicated. Res judicata means thing
adjudicated. According to the doctrine of res judicata a case once decided finally
cannot be reagitated before the same or different Court. The rule of res judicata is
based on considerations of public policy as it is in the larger interest of the society
that a finality should attach to binding decisions of courts of competent
jurisdiction, and that individuals should not be made to face the same kind of
litigation twice. It also seeks to avoid multiplicity of proceedings.
Sharma vs. Krishna Sinha
In this case the Supreme Court imposed a significant restriction on the invocation
of its jurisdiction under Art. 32 by applying the doctrine of res judicata. An order
assessing the tax having been challenged once through a writ petition, it cannot be
Judicial Review 177
challenged again through another writ petition even if the petitioner seeks to urge
new grounds against the order.
Similarly, if a writ petition filed under art. 226 is considered on merits and
dismissed, the decision so pronounced would continue to bind the parties. It
would not be open to a party to ignore the said judgement and again move the
High Court under art. 226 or the Supreme Court under Article 32 on the same
facts and for obtaining the same or similar orders or writs.
This means that in case of infringement of fundamental rights, the aggrieved

person has liberty to approach High Court or Supreme Court, but once the option
is exercised and his case is decided by the Court, he cannot approach the other
Court in case of adverse order. The High Court's decision can be attacked in an
appeal to the Supreme Court but not through a writ petition.
Res judicata does not apply if orders sought to be challenged through successive
writ petitions are different.
Amalgamated Coalfields vs. Janapada Sabha, Chhindwara
Where a petition challenging the validity of the tax assessment for one year is
dismissed by the Supreme Court, a similar order passed for the subsequent year
can be challenged through a new writ petition on some new grounds not raised
earlier in the first writ petition.
For the application the following requirements must be satisfied.
1. The case must have been decided by a Court of competent jurisdiction.
2. The case must have been decided finally. Doctrine of res judicate is not
applicable to interlocutory orders.
3. The decision must be on merits. Orders on technicalities do not attract doctrine

of res judicata.
4. Issues involved in both cases must be same or substantially same.
5. Parties in both the cases must be litigating under the same title.
Constructive Res Judicata
Where an issue which could and ought to have been raised in the earlier case, but
was not raised by the parties, is raised in a subsequent case, still the matter is
barred by res judicata. As the some issues in the subsequent case were not raised
in the earlier case, it is called constructive, as against actual, res judicata.
Doctrine of res judicata is a doctrine of civil law. Double jeopardy is the

corresponding principle of criminal law. Where a person is convicted or acquitted
by a competent Court for some offence, he cannot be prosecuted for the same
offence again6. Therefore, if a person is neither convicted nor acquitted of any
offence, he may be tried or he may be permitted to try the case again.
Lallubhai vs. Union of India
Supreme Court has held these principles of public policy are entirely inapplicable
to illegal detention and do not bar a subsequent petition for a writ of habeas
corpus under art. 32 on fresh grounds not taken in the earlier petition for the
same relief. Thus, when a writ petition challenging an order of detention is
dismissed by the Court, a second petition can be filed on fresh, additional grounds
to challenge the legality of the continued detention of the detenu, and the
subsequent petition is not barred by res judicata.
Thus, doctrine of res judicata is not applicable to habeas corpus. This is because
the courts attach great value to the right of personal freedom of a person. A person
who unsuccessfully prosecutes a Writ Petition in the High Court may approach the
Supreme Court by way of a fresh Writ Petition, or at his option, by way of an
appeal.
However, some new grounds must be raised in the subsequent petition. If in the
fresh Writ Petition the judgement of the High Court is challenged, the Writ Petition
will take colour of Appeal and hence not maintainable as Writ Petition.
English as well as American Courts have also laid down that the principle of res
judicata is not applicable to a writ of habeas corpus.
However, successive applications of habeas corpus cannot be filed in the same

High Court.
When a writ petition is withdrawn as infructuous, and the court allows the
withdrawal by mentioning futility as ground, a second petition will be barred by
res judicata. This fate can be avoided if the court gives permission to withdraw the
petition with liberty to file a fresh petition in respect of the same subject matter.
Where the Court is silent, there was a conflict of opinion amongst the High Courts
whether res judicata will apply. The Rajasthan, Punjab and Haryana and Gujarat
High Courts have held that res judicata applies in such a case, while the Bombay
and Patna High Courts have taken a different position.
The matter has now been resolved by the Supreme Court decision in Surguja
Transport Service vs. S. T. A. Tribunal, Gwalior.
6 Sec. 300 of Cr.P.C. – art. 20 of the Constitution is applicable to prior convictions only.
Judicial Review 179
Surguja Transport Service vs. S. T. A. Tribunal, Gwalior
The Court has ruled that when a writ petition filed under art. 226 is withdrawn
without seeking permission of the court to file a fresh petition, then the remedy
under art. 226 should be deemed to have been abandoned by the petitioner in
respect of the cause of action, and fresh petition cannot be instituted in respect of
the same matter in the High Court.
JURISDICTION
Jurisdiction of Supreme Court under arts. 32 and 136
Supreme Court of India is constituted as a protector, defender and guarantor of

fundamental rights of the people. Under this provision, “the Supreme Court shall
have power to issue directions or orders or writs including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of rights conferred by Part III of the
Constitution.”
Art. 32(1) guarantees a right to move the Supreme Court for the enforcement of
fundamental rights, which right by itself is a fundamental right. It provides a
guaranteed, quick and summary remedy for enforcing fundamental rights. A
person alleging violation of fundamental rights can approach thee Supreme Court
directly, without having to undergo a delatory process of having to go from thee
lowest to the highest Court which is the case in other matters.
Under art. 32 Supreme Court enjoys a broad discretion in the matter of framing
the writs to suit the exigencies of the particular case and it would not throw out
the application of the petitioner simply on the ground that the proper writ or
direction has not been prayed for. Both Supreme Court and High Court have the
power to modify the prayer in the petition and grant the most appropriate and
useful remedy. This is because, being higher judiciary, they are Courts of justice
and have to do justice in the matter before them.
Jurisdiction of High Courts under arts. 226 and 227
Under art. 32 of the Constitution, the Supreme Court is empowered to issue a writ
in case of breach of fundamental rights and under Art. 226, High Court may issue
a writ for the breach of fundamental rights and other rights. Thus, the jurisdiction
of the High Court is wider than the jurisdiction of Supreme Court. Art. 32 itself
being a fundamental right, the Supreme Court cannot reject writ petition when
breach of fundamental rights is involved. But, the power of High Court under Art.
226 is discretionary. The High Court may reject a writ petition on two grounds:
1. When there is delay and latches
2. When there is an equally efficacious alternative remedy
Delay and Latches
The Court may refuse remedy if there is unreasonable delay in invoking the
jurisdiction of the court. Unlike in limitation there is no fixed period for latches.
Every case will be determined on its own fact and circumstances and therefore,
the court has to give reason for declining the remedy or the grounds of delay and
latches. If the limitation has expired normally the court will decline to give remedy
because what cannot be granted in the exercise of ordinary powers cannot be
granted in the exercise of extra-ordinary powers. But that does not mean that the
High Court is bound by the limitation. Even if the case is within limitation, the
High Court may decline to grant relief because the extra-ordinary remedy is
discretionary.
Alternative Remedy
If there is violation of fundamental rights, the court cannot refuse relief on the
ground of alternative remedy. But if a writ petition is filed for any other purpose
before the High Court, the High Court may decline the relief on the grounds of
equally efficacious alternative remedy. An equally efficacious remedy means a
remedy, which can give the same relief to the party as may be given by the High
Court through the writ. Therefore, the courts may grant the remedy by a writ
where:
i) the alternative remedy is not adequate,
ii) when the alternative remedy was lost without any fault on the part of the
person,
iii) when the alternative remedy is illusionary, or
iv) when the alternative remedy involves delay.
Even where there is an alternative remedy, in all cases of absence of jurisdiction or

abuse of jurisdiction, the court may exercise jurisdiction even where there is an
alternative remedy.
Judicial Review 181
42nd amendment to the constitution had absolutely bound the jurisdiction of High
Courts where there is an alternative remedy except in case of violation of
fundamental rights. But, the 44th amendment to the constitution has removed
this factor. Therefore, now the High Courts can exercise the discretion and admit
the writ petition even where alternative remedy is available.
Exclusion of Jurisdiction (Ouster Clause)
Some statutes provide that the order of some authority is “final”. Some other
statutes are more explicit and state that “the order cannot be called in question
before any Court of law”. Yet other statutes mention that the jurisdiction of the
Courts is barred. All these different expressions mean the same thing.
The expression “Courts” cannot, however, b given the wide interpretation.

Because, if the expression is interpreted in its widest import, it will include High
Courts and Supreme Court, exercising their jurisdiction under the Constitution. If
such a meaning is attached, the provision becomes unconstitutional. Therefore, by
applying harmonious interpretation, “Courts” may be interpreted as “Courts
exercising statutory jurisdiction and not Constitutional jurisdiction.
But that does not mean that writ jurisdiction of High Courts cannot be excluded.
But that requires amendment to the Constitution.
In any case, whether the exclusion is of the jurisdiction of subordinate Courts

exercising their jurisdiction under statutes, or High Court exercising its writ
jurisdiction under Constitution, there has to be establishment of an equally
efficacious alternative forum.
Example
The Constitution (42nd Amendment) Act, 1976 inserted Part XIV-A to the
Constitution of India consisting of arts. 323-A and 323-B. Art. 323-A
provides for the establishment of Administrative Tribunals for adjudication
or trial of disputes and complaints with respect to recruitment, conditions of
service of persons appointed to public services and other allied matters.
Under the Administrative Tribunals Act, 1985 Administrative Tribunals

having original jurisdiction in respect of service matters of employees
covered by it are set-up. In respect of the matters falling under the
jurisdiction of the Administrative Tribunals, jurisdiction of the High Court is
barred. Originally art. 323 barred the jurisdiction of Supreme Court also.
S. P. Sampath vs. UoI
The Constitutional validity of the Act was challenged on the ground that exclusion
of High Courts’ power of judicial review violated the basic structure of the
Constitution. It was held that the basic structure was not affected by the said art.
323 as it has created an alternative forum, which will exercise the judicial review
in place of the High Court.
L. Chandra Kumar vs. UoI
However, in this case art. 323-A(2)(d) was held to be unconstitutional to the extent
they exclude the jurisdictions of High Courts and Supreme Court under arts. 226,
227 and 32 of the Constitution. For the same reason sec. 28 of the Administrative
Tribunals Act, 1985 containing the exclusion of jurisdiction clause were set aside
as unconstitutional.
It was further held that exclusion of the jurisdiction of courts having the
“Constitutional powers of judicial review” cannot be excluded. It was held that
Administrative Tribunals shall continue to be the Courts of first instance, and in
respect of the matters falling under their jurisdiction, direct writ to High Court will
not be entertained. An appeal against the order of the Administrative Tribunal lies
to the Division Bench of the High Court.
VIOLATION OF PROCEDURAL NORMS
Validity of an administrative order passed in violation of the procedural norms

prescribed in the statute is a matter which can be decided with reference to the
facts and circumstances of each case.
The first question in such cases is, whether the procedure was mandatory or
directory. If it was only directory, its non-compliance does not affect the validity of
the order passed without following it.
If the procedure was mandatory, the next question is whether it has been complied
with substantially, so that no injustice is caused to anybody.
State Bank of Patiala & Others vs. S. K. Sharma
A disciplinary enquiry was held against the respondent in respect of certain

charges. At the conclusion of the enquiry, a report was submitted by the enquiry
officer holding that both the charges were established. The competent authority
accepted the report and ordered the removal of the respondent from the service.
In the process, it was alleged that, there was violation of a procedural norm laid
down in Rule 68(b)(iii) of the Bank Officers’ Service Regulation. The Rule required
that a copy of the statements of the witnesses shall be provided to the employee at
Judicial Review 183
least three days prior to enquiry. But instead of supplying the copies, the
respondent was permitted to inspect the documents, and make notes.
The Supreme Court held that there was substantial compliance with the
procedural norms, and that the test in such cases should be one of prejudice.
Unless prejudice is established to have resulted from the procedural impropriety,
no interference was called for.
GROUNDS OF JUDICIAL REVIEW

There is no general agreement on how to classify the grounds of review and
different textbooks take different approaches. The grounds themselves are broad,
vague and overlapping.
We may follow Lord Diplock’s classification in CCSU v. Minister for the Civil Service:
1. Illegality
2. Irrationality
3. Procedural Impropriety
The Diplock categories tell us little in themselves and do not avoid overlaps.
Indeed in Boddington vs. British Transport Police, the House of Lords has
emphasised that the heads of challenge are not watertight compartments but run
together.
These grounds are discussed in detail in different parts of these study materials.
Here, a brief account is given to recapitulate memory.
1. ILLEGALITY
Ultra Vires
A decision is ultra vires if it is outside the language of the statute. In the case of
courts and judicial tribunals the terminology of ‘lack’ or ‘excess’ of jurisdiction
means the same as ultra vires although a distinction is sometimes made between
lacking jurisdiction at the outset and straying outside jurisdiction by some
subsequent defect. In most cases, however, this distinction does not matter.
Errors of Law
The question whether the court can review decisions on the ground of legal or
factual errors has caused problems. There seems to be a clash of principle. On the
one hand, if the court can intervene merely because it considers that a decision is
wrong it would be trespassing into the merits of the case. On the other hand the
rule of law surely calls for a remedy if a decision maker misunderstands the law.
After many years of groping towards an accommodation the courts have adopted a
compromise. The outcome appears to be that almost all errors of law and some
errors of fact can be challenged.
A rationale which was popular in the nineteenth century is the doctrine of the
‘jurisdictional’ or ‘collateral’ or ‘preliminary’ question. According to this doctrine, if
a mistake relates to a state of affairs which the court thinks that Parliament
intended should exist objectively before the official has power to make the
decision, then the court will interfere on the ground that the authority has acted
ultra vires if the court thinks that the required state of affairs does not exist.
A second device which flourished during the 1960s but has largely been
superseded is the doctrine of ‘error of law on the face of the record’ or patent error.
This allows the court to quash a decision if a mistake of law can be discovered by
reading the written record of the decision without using other evidence.
Errors of fact are not normally reviewable but there are exceptions.
2. IRRATIONALITY
Irrationality or unreasonableness can be used to challenge the exercise of

discretion or findings of law and fact. The notion of ‘unreasonableness’ is so vague
that it seems to invite the court to impose its own opinion of the merits for that of
the decision maker.
Wednesbury Test
However, it has a special and limited meaning. This ground of review is usually
called ‘Wednesbury unreasonableness’ after Lord Greene’s speech in Associated
Provincial Picture Houses Ltd v. Wednesbury Corporation.
Lord Greene, MR emphasised that the court will interfere only where a decision is
so unreasonable that no reasonable authority could have made it, not merely
because they think it is a bad decision.
Another way of putting it is that the decision must be ‘beyond the range of
responses open to a reasonable decision maker’. This is sometimes equated with
‘perversity’ or ‘irrationality’.
Judicial Review 185
PROCEDURAL IMPROPRIETY
Failure to comply with a procedural requirement laid down by 386 General

Principles of Constitutional and Administrative Law statute (such as time limits,
consultation or giving required information or notice) could make a decision
invalid.
However, the courts are reluctant to set aside a decision on purely technical
grounds. Traditionally the courts have tried to rationalise this by distinguishing
between ‘mandatory’ (important) and ‘directory’ (unimportant) procedural
requirements by reference to the language of the governing statute.
Recently they have abandoned this approach in favour of a flexible response to the
particular context. Using their discretionary power to withhold a remedy, the
courts will set a decision aside for procedural irregularity only if the harm or
injustice caused to the applicant by the procedural flaw outweighs the
inconvenience to the government or to innocent third parties in setting the
decision aside.
However the courts may not be willing to allow administrative efficiency to override
a statutory right of the public to be consulted.
WRITS
Under art. 32 of the Constitution, the Supreme Court is empowered to issue a writ
in case of breach of fundamental rights and under Art. 226, High Court may issue
a writ for the breach of fundamental rights and other rights. Thus, the jurisdiction
of the High Court is wider than the jurisdiction of Supreme Court. Art. 32 itself
being a fundamental right, the Supreme Court cannot reject writ petition when
breach of fundamental rights is involved. But, the power of High Court under Art.
226 is discretionary.
The High Court may reject a writ petition on two grounds:
1. When there is delay and latches
2. When there is an equally efficacious alternative remedy
High Court and Supreme Court can grant five types of writs:
1. HABEAS CORPUS
Habeas corpus literally means you must have the body i.e., the person must be
produced before the court. Where a person is illegally detained by another, the
court issues this writ to the person who has detained the other to come to the
court with that person and explain the legal basis on which he has detained that
person. This writ is sued in various cases:
1. for testing the regularity of detention under preventive detention laws
2. for securing the custody of minor or insane person
3. for securing the custody of spouse
4. for testing the regularity of detention for breach of privilege by the legislature
5. for testing the regularity of detention under court marshal
6. for testing the regularity of detention by executive during emergency.
In order to maintain the writ of Habeas corpus the physical detention of the
person is not necessary. Some kind of control, custody or restrain exercised on the
person may be sufficient to exercise this writ.
Kanu Sanyal vs. District Magistrate
The Court has held that in case of public interest it is not necessary to produce the
person before the court. Therefore, though habeas corpus literally means
producing the person before the court, where taking the person before the court
may adversely affect the law and order situation it is no necessary to produce him
before the court.
As in writ of habeas corpus, the question of personal liberty of a person is involved

which is very valuable, the Supreme Court has made several relaxations in case of
writ of habeas Corpus. They are:
1. In Ichhudevi vs. Union of India, Supreme court held that in case of writ of
High Court, the court does not as a matter of practice follow the strict rules of
pleading nor does it place undue emphasis on the strict rule of observance of
burden of proof. Even a post card may be sufficient to invoke the jurisdiction of
the court.
2. Rule of locus standi: is also not applicable to a writ of habeas corpus. Any
person may file a writ petition on behalf of the detenu.
3. Res Judicata is not applicable to the writ of habeas corpus. Therefore, even
though the High Court has rejected the writ petition, the Supreme Court will
entertain a fresh petition on the same ground.
4. All the writs can be sought only against the state whereas the writ of habeas
corpus is available even against a private person.
Judicial Review 187
2. WRIT OF MANDAMUS
Mandamus is a judicial remedy issued in the form of an order to any constitutional

statutory or non-statutory agency to do or to forbear from doing some act which
the agency is obliged to do or refrain from doing under the law. The following are
the conditions for the grant of mandamus:
1. There must be a public or common law duty;
2. The duty must be absolute duty;
3. There must be specific demand and refusal;
4. There must be a clear right to enforce the duty;
5. The right to enforce the duty should subsist till the date of petition; and
6. The right to enforce the duty should belong to the petitioner.
1. Public or Common Law Duty
A public duty means a duty, which is imposed by law. A duty imposed by a

contract is a private duty. Therefore, a writ was not held to lie to enforce a
contractual duty.
Guruswamy vs. State of Mysore
The court refused to enforce a contractual duty by issuing a writ of mandamus.
But this decision was over-ruled in Lotus Hotel vs. GSFC.
Lotus Hotel vs. Gujarat State Financial Corporation
The Supreme Court decided the contract under two heads – First category of
contracts is that of Statutory Contracts which are entered into the exercise of a
statutory duty. Therefore, they have got a colour of statutory duty though the duty
is under a contract as well. Thus, where a statutory body established to advance
loans enters into a contract for the purpose of giving loans it is not only entering
into a contract but also is discharging its statutory duty. Therefore, a breach of
that contract is also a breach of its statutory duty. Hence, mandamus may be
issued to enforce that duty.
But other contracts are independent contracts and their breach does not entail
breach of any statutory duty. Therefore, writ of mandamus does not lie for
enforcement of such contracts.
2. Absolute Duty
The duty must be absolute duty, i.e., it should not be discretionary duty. When
the authority has discretion, in exercising the duty that discretion used to be
exercised by the authority and the court cannot exercise the discretion on behalf
of that authority. The court may issue a writ of mandamus ordering the authority
to exercise the discretion but it will not order the authority to exercise the
discretion in one way or other. Thus where the authority has discretion to decide
the matter but it will not tell the authority as to in whose favour the decision
should be.
3. Specific Demand and Refusal
There must be specific demand and refusal. In many cases, the duty of the
authority arises only when there is a specific demand from the person and
therefore, unless there is no demand the duty does not arise Further, the breach
of duty arises when the demand is refused. Unless there is a refusal there is no
breach of duty. Therefore, writ of mandamus does not lie unless there is a demand
and refusal. But, the refusal need not be expressed refusal. Unreasonable delay in
complying with the demand itself is a refusal.
Naubat Rai vs. Union of India
The petition was illegally dismissed from military. The Court refused to issue
mandamus for his reinstatement because he did not at any point of time apply to
the authority for reinstatement.
Venugopal vs. Commissioner, Vijayawada Municipality
The petitioner had filed a suit against the respondent. This was treated as a
demand and refusal by the court and the court granted mandamus.
4. Clear Right to Enforce the Duty
Before, applying for writ of mandamus, the petitioner must show some right to
enforce the duty. In SP Manocha vs State of M.P., the court refused to issue
mandamus to the college to admit the petitioner because the petitioner could not
show a clear right to be admitted to the college.
5. Duty Should Subsist Till the Date of Petition
The right to enforce the duty should subsist till the date of petition. If the right has
been lawfully terminated before filing the petition the writ does not lie.
Judicial Review 189
6. The Right Should Belong to the Petitioner
The right to enforce the duty should belong to the petitioner. A shareholder, e.g.,
cannot enforce the right of company unless he can show that the infringement of
the corporation’s right has resulted in the infringement of his own right.
3. WRIT OF CERTIORARI AND WRIT OF PROHIBITION
Both the writs are similar in the sense that they can be issued on the similar
grounds. But they are different in the sense that the point of time at which they
can be granted will be different. These writs lie, where the action of the authority is
without jurisdiction.
Prohibition can be issued to prohibit the authorities from proceeding in the matter
without jurisdiction while certiorari can be issued to quash the act of the authority
done without jurisdiction. The following are the grounds for the issue of these
writs:
1. Lack of jurisdiction;
2. Excess of jurisdiction;
3. Abuse of jurisdiction;
4. Violation of natural justice;
5. Error apparent on the face of the record; and
6. Fraud
1. Lack of Jurisdiction
Lack of jurisdiction refers to the jurisdiction where the authority has no

jurisdictional power at all to take action. This situation may arise if:
(a) the authority is improperly constituted
(b) the authority exercises jurisdiction in a case in which he has no jurisdiction at

all by committing an error in its decision or jurisdictional facts.
(c) the authority is incompetent to take action in respect of a locality, party, or

subject matter.
(d) the law which is given the jurisdiction is itself unconstitutional.
(e) the preliminary essentials have been disregarded. Eg. Omission to serve notice
as required by law.
2. Excess of Jurisdiction
In this case the authority may have jurisdiction but it exceeds the permitted
limits.
J. K. Choudhari vs. Datta Gupta
The governing body which had then power of dismissal in case of teachers,
dismissed the principal. Court held that this is an excess of jurisdiction.
3. Abuse of Jurisdiction
Even where the authority has a jurisdiction, if it does not exercise properly, it
amounts to abuse of jurisdiction. Exercising the jurisdiction for mala fide
purposes, for the improper purpose on an extraneous consideration or irrelevant
consideration, by ignoring related considerations etc. amounts to abuse of
jurisdiction.
4. Violation of Natural Justice
There are two rules of natural justice:
1. Rule Against Bias
Rule against bias is based on the maxim “Nemo judex in causa sua” (No one can be
a judge in his own case).
2. Rule of Fair Hearing
Rule of fair hearing is based on another maxim “Audi alteram partem” i.e., here the
other side.
5. Error Apparent on the Face of the Record
When the authority has come to the conclusion by committing an error which is
apparent on the face of the order, the court may show certiorari to quash that
order.
6. Fraud
If the order of the authority is obtained by fraud, that order may be quashed by
issue of certiorari.
Judicial Review 191
4. WRIT OF QUO WARRANTO
Quo Warranto means, by what authority. It is an order issued by the Supreme

Court or High Court by which any person who occupies an independent public
office is asked to show his authority to occupy the Office. Following are the
conditions for issuing this writ.
1. The office must be a public office;
2. The office must be substantive in nature;
3. The person must have occupied the office; and
4. There must be contravention of law.
1. The Office Must be a Public Office
An office is a public office if it is created by the constitution or by a statute and its

duties are such that the public should be interested in that.
2. The Office Must be Substantive in Nature
A substantive office is one, which is permanent in character, and is not terminable

in character at the will of the superior. Though public offices are held at the
pleasure of the president or governor there is a safeguard against the use of power
by the president or governor because if it is permanent in character writ of quo
warranto lies.
3. The Person Must Have Occupied the Office
Just because the person is appointed or elected to the office, the writ does not take
effect unless the officer has accepted the appointment or election.
4. There Must Be Contravention of Law
If the appointment is in contravention of law, only then this writ lies. If there is
only, an irregularity, quo warranto does not lie.
PRIVATE LAW REVIEW

As seen above, judicial review of administrative actions is done in two ways –
public law review and private law review. Public law review is done through writ
jurisdiction of the higher judiciary, whereas private law review is done through the
ordinary jurisdiction of the subordinate judiciary.
In case of public law review, the State is acting as State and has duties towards
the public at large. In case of private law review, the position of the State is no
better than that of an individual, and the same laws are applicable to the State as
a private individual, attaching same rights and liabilities attachable to private
individuals.
Thus, if the State enters into contract with an individual, Indian Contract Act is
applicable. Though art. 299 prescribes certain procedure to make government
contracts, the other aspects of the contract have to be in accordance with the
provisions of the Indian Contract Act. If the government violates the contract the
contract may be enforced under the Contract Act in the same manner as it is
enforced against an individual.
Similarly, where a government servant commits a tort in the course of his

employment government incurs vicarious liability and is liable to the aggrieved
person under the law of torts in the same way as an individual.
Though there is no difference between an individual and the State in such

proceedings, keeping in mind the peculiar position of the government, there are
certain special privileges available to the government is suits against it. Longer
periods of limitation in some cases, privilege of notice under sec. 80 of the Code of
Civil Procedure, privilege to withhold documents, are a few instances. It should be
remembered that these special privileges are available to government not for its
protection, but for the protection of the people.
The most important statutory remedies available against state, as in case of

individuals, are injunction, declaration and damages.
Though, in India there is no distinction of statutory and equitable remedies, and

all remedies are statutory remedies, injunctions and declarations are said to be
equitable remedies, which means that the origin of the statutory provision relating
to them lies in the judgements of Courts of equity in England rather than in the
judgements of Courts of law. The implication of saying so is that the fundamental
rule of equity ‘to seek equity one must do equity’ is applicable to the grant of these
remedies. Where the conduct of the plaintiff in case of a suit for declaration or
injunction and applicant in case of an application for temporary injunction, is not
clean, he is not entitled to these remedies.
Judicial Review 193
INJUNCTION
An injunction is an order of the court directed at a defendant or respondent, to do

or not to do a particular act. If the order is to do some act the injunction is called
mandatory injunction while if the order is to abstain from doing an act it is called
preventive injunction or prohibitory injunction. In Courts terms permanent
injunction or perpetual injunction are more popular to refer to preventive
injunction.
An injunction may be refused, inter alia, when the conduct of the plaintiff is such
as to disentitle him of the assistance of the court [Sec. 41(1), Specific Relief Act.];
or when equally efficacious relief can be obtained by any other usual mode of
proceedings [Section 41(h) SRA]. For example, an injunction will not be issued
when damages would be an adequate remedy to the aggrieved party, as in the case
of breach of conduct.
An injunction may be applied for as a final remedy or as an interim form of relief,

by way of an interlocutory application. In particular, an interim injunction can be
granted to prevent a public body from taking action, pending the determination of
the issue by the court.
Thus, we may classify injunctions as under:
1. Mandatory or Prohibitory injunction, which is a final remedy.
2. Temporary injunction which is an interlocutory remedy.
Mandatory Injunction
Where the Court issues and injunction to the defendant ordering him thereby to
do some act, the order is called mandatory injunction. Thus, where the defendant
who has constructed a structure on plaintiff’s land illegally, the Court may issue a
mandatory injunction in favour of the plaintiff ordering the defendant to demolish
the structure.
Though limitation to institute a suit for mandatory injunction is one year, it is

expected that the plaintiff has to approach the Court at the earliest opportunity,
i.e., as early as possible after he comes to know of the infringement of his right by
the defendant. In other words, the plaintiffs cannot wait for the defendant to, for
example, complete the construction and then seek the demolition. He has to
approach the Court at the earliest opportunity and prevent wastage. This means
that if the suit is barred by limitation suit cannot be entertained, but even where
the suit is within the period of limitation if there is unnecessary delay in

instituting the suit, the Court may refuse injunction and explore the possibility of
compensation.
Prohibitory Injunction
A prohibitory injunction can be granted, under sec. 37(2) of the Specific Relief Act,
by a decree made after the hearing and upon the merits of the suit. According to
sec. 38(1), Specific Relief Act, a prohibitory injunction may be granted to the
plaintiff to prevent the breach of an obligation existing in his favour whether
expressly or by implication.
Through a prohibitory injunction, the defendant is perpetually enjoined from

assertion of a right, or from the commission of an act, which would be contrary to
the rights of the plaintiff. Ordinarily, an injunction is not issued to prevent breach
of a contract because a contract is usually not specifically enforceable and
damages may be a sufficient recompense for breach of a contract.
If, however, there exists no standard to ascertain damages caused by the non-
performance of a contract, or where the act agreed to be done is such that
compensation in money for its non-performance would not afford adequate relief,
an injunction may be granted to prevent its breach.
When the defendant threatens to invade, or is about to invade the plaintiffs right
to, or enjoyment of any property, the court may grant a prohibitory injunction,
inter alia, where there exists no standard for ascertaining the actual damage likely
to be caused by the invasion, or where the invasion is such that irreparable loss is
likely to be caused to the plaintiff by the act of the defendant, or where the
injunction is necessary to prevent multiplicity of judicial proceedings. An
irreparable loss is one where compensation in money would not afford adequate
relief.
Temporary Injunction
When a suit for injunction is instituted by plaintiff against the defendant, the
Court will issue notice to the defendant, the defendant will appear before the
Court and file his written statement, the Court will frame issues, the parties will
lead evidence, and after hearing the arguments on behalf of both the parties the
Court will pronounce the judgement. All this takes often years to happen. Till then
if there is no order of the Court requiring the defendant to maintain status quo, he
can proceed with the infringement, for example, construction of the building on
Judicial Review 195
plaintiff’s land, and even complete the construction before the Court had an
opportunity to pronounce an order of prohibitory injunction against him. This will
defeat the very purpose of the suit.
Therefore, in a suit for injunction, the plaintiff may file an application for
temporary injunction. A temporary injunction is provisional in nature. It continues
for a specific period or until further order of the court; such an injunction does not
conclude a right. Its object is to maintain the status quo until the questions at
issue are decided by the court. It may be granted at any stage of the suit.
Temporary injunction may be granted ex parte, i.e., without hearing the other side.
To get an ex parte temporary injunction, the applicant has to satisfy the Court
about three things:
1. That he has a prima facie case.
2. That the balance of convenience lies in applicant’s favour.
3. That if the injunction is not issued, the applicant will suffer irreparable loss.
Normally temporary injunction is prohibitory in nature, preventing the opponent

from doing some act. Temporary injunction is not mandatory in nature, requiring
the opponent to do an act. This is because, once an act is done, the order is
discharged, and thereby the order becomes the final relief. However, in exceptional
circumstances mandatory temporary injunction may be issued. For example, a
construction made by the opponent in breach of a preventive order may be ordered
to be demolished. A student to whom the University has refused to issue hall
ticket may be ordered to be allowed to appear for examination. The result of the
examination may be withheld till the final order of the Court and may be declared
if the final order of the Court is in favour of the candidate.
Writ of Mandamus Compared with Injunction
Though mandamus is a public law remedy and injunction is a private law remedy,
there are many things common to both.
1. Both may be issued to compel an authority to do or prevent an authority from

doing an act.
2. Both are not ordinary legal remedies. Injunction is an equitable relief while
mandamus is an extra-ordinary remedy.
3. In both cases relief is not granted if there is an alternative remedy.

Mandamus has certain advantages over injunction.
1. Mandamus being a constitutional remedy, is better than injunction which is an

ordinary remedy.
2. Mandamus being a constitutional remedy cannot be barred by a statutory

provision. Injunction can be.
3. Sec. 80 CPC is not applicable to mandamus. It is applicable to injunction,

though in cases of urgency the court has a power to dispense with the same.
4. Mandamus is comparatively speedier remedy than injunction.
On the other hand, injunction has some advantages over mandamus.
1. Injunction is a remedy which is available at local courts. Mandamus may be

issued only by High Courts or the Supreme Court.
2. In case of injunction compensation may also be sought, compensation cannot

be issued with mandamus.
3. In a suit for injunction oral evidence may be lead which gives the plaintiff a
better chance to prove his case. In case of mandamus evidence is lead through
affidavits only.
DECLARATION
A declaration is an order of the court stating the legal position between two
parties, and can be sought to provide some clarification on a disputed point of law.
An order declaration is declaration of some legal character of the plaintiff, such as
that plaintiff is the owner of a property, or that the plaintiff is a legally wedded wife
of the plaintiff, etc. In other words, it declares that the plaintiff has some right,
right of ownership, right to matrimonial home, etc.
A declaratory order has no coercive force as it does not require anybody to do

anything, and neglecting a declaration will not be a contempt. A declaration differs
from an ordinary judgement which can be enforced through execution
proceedings.
Therefore, Courts normally refuse to issue bare declarations. A fundamental

principle of law is that Courts do not pass orders which are of no use to the party
in whose favour the order is passed. Therefore, along with a prayer for declaration,
Judicial Review 197
a consequential remedy has to be sought. The the suit cannot be, normally, a suit
for bare injunction, but should be a suit for declaration and possession, or
declaration and injunction, etc. Where there is no consequential remedy available
to the plaintiff, bare declaration can be issued.
In England, although a bare declaration has no coercive force, a public body is

most unlikely to ignore the implications of any declaratory relief granted by, the
courts. The declaration is regarded in England as a particularly flexible remedy as
regards the challenging of executive action. In theory it permits the citizen to
question proposed executive action, rather than wait for it to happen and attempt
to have it quashed.
Thus, a great attraction of declaration is that it is an all purpose remedy which

can be used in an extraordinarily wide variety of cases. Two main virtues of a
declaratory action are to get relief before damage is caused, or to escape from
dilemma and uncertainty by a clarification of the legal position.
The purpose of declaration, if the parties take it in the right spirit, is to avoid
future litigation by removing existing causes or controversies, e.g., where a man is
in possession of some property under a title about which there is some legal
doubt, he may obtain a declaration in his favour to clear his title. Or, where there
exists a dispute about the status of two persons as husband and wife and the
legitimacy of the children, declaration would be an appropriate remedy to clarify
the legal position.
Bai Shri Vaktuba vs. Thakore
The plantiff-husband filed a suit for declaration that a two year old boy allegedly
born to the defendant wife was not his son.
An objection was taken that the suit was premature as no maintenance and rights
in the plaintiff's estate were being claimed against the plaintiff and that the
interest of the minor should not be prejudiced by deciding a question which would
arise in future.
The court did not accept the contention as the wife had been making an open
assertion that the boy was plaintiff's son. In the opinion of the court, the infant's
case could be sufficiently placed before the court by a duly constituted guardian.
To hold otherwise would amount to holding that the plaintiff, openly threatened
with the serious claim, is condemned to inactivity for, it may be 20 or 30 years,
leaving it to the claimant to file his suit at such time as would most assist him in
taking the plaintiff at a disadvantage.
Further, questions of birth and paternity should be determined while the evidence
is still available.
DAMAGES
Where an individual has suffered any loss on account of an act of the government
or any servant of the government, he may claim compensation or damages, as the
case may be, against the government.
Under sec. 40, Specific Relief Act, a plaintiff in a suit for a perpetual or mandatory
injunction can also claim damages either in addition to, or in substitution of, such
injunction. The court may, in its discretion, award damages. Therefore, an
injunction will not be issued when damages would be an adequate remedy to the
aggrieved party, as in the case of a breach of contract.
The appropriate forum to recover damages is a civil Court of competent

jurisdiction. There are two important questions involved in a suit for damages:
1. Is the plaintiff is entitled to damages?
2. If yes, what is the quantum of damages?
To decide both these questions, the Court, in majority of cases, needs evidence.
Therefore, the decision as to damages cannot be, ordinarily, given in Writ
proceedings.
However, in the recent past, in order to avoid hardships to the petitioners and
multiplicity of proceedings, courts are, in cases of constitutional torts, awarding
damages to the petitioners. A constitutional tort is a tort which also involves
violation of fundamental right. This involvement of the fundamental right gives
jurisdiction to the Supreme Court under art. 32 or a High Court under art. 226.
Nilabati Behera vs. State of Orissa
This is a classic example of cases of such nature. Petitioner’s son was arrested and
kept in police custody. After two days his dead body was found on railway tracks.
Version of the police was that he tried to escape from the police custody and was
chased by the police to recapture him. In an attempt to escape, he tried to cross
railway lines without noticing the approaching train, and died in the accident.
Petitioner’s version was that her son was tortured in police custody and due to the
intolerable torture he died in police custody. To avoid liability, the police threw his
body on railway tracks to show as if there was a railway accident.
Supreme Court ordered inquiry by the District and Sessions judge into the matter.
The inquiry report submitted by the District and Sessions unequivocally disclosed
that the petitioner’s version was true.
The Court awarded damages to the petitioner and held that damages may be
awarded in petitions under art. 32 or art. 226 if the violation complained of is of
fundamental right under art. 21 if the facts are not disputed or there is
incontrovertible evidence to prove the violation.
CHAPTER IX
GOVERNMENT PRIVILEGES
• Privilege to Notice under sec. 80, C.P.C.

• Privilege to Withhold Documents
• State Liability under Statute
• Immunity from Estoppel and Waiver
• Special Provisions for Limitation
PRIVILEGES AND IMMUNITIES CLAIMED BY GOVERNMENTS IN
SUITS
Though the government is not treated differently from an individual, in some

cases, the government requires to be given special privileges in the interest of the
public. In some cases the government has claimed the privileges which are not
granted to it by the courts.
The privileges which are claimed by the government are:
1. Privilege of statutory notice,
2. privilege to withhold documents,
3. immunity from operation of statutes
4. immunity from estoppel,
5. longer periods of limitation in some cases etc.
1. PRIVILEGE OF STATUTORY NOTICE
Sec. 80 of the Code of Civil Procedure, 1908 provides that no suits shall be
instituted against the government or against a public official in respect of any act
done by him in the official capacity until after two months from the date of notice
in writing. The requirement of notice in mandatory and notice must be in writing
and in the manner provided under sec. 80 CPC.
But if the officer is acting without jurisdiction, the requirement of notice is not
mandatory. The requirement of the notice may also be not necessary if the officer
acts within the jurisdiction but in a mala fide manner. But the Madras High Court
has held that even if the officer acts in a mala fide manner, notice is mandatory.
The government may expressly or impliedly, waive the requirement of notice.
Requirement of notice is applicable to all kinds of relief of civil nature. This
requirement may cause hardship to the parties in some cases.
State of Orissa vs. Madan Gopal
The government issued a notice to certain lessors of mines under the government
to remove their assets within a fortnight. The lessees could not file suit for
injunction because of the requirement of the two month notice. Therefore, they
approached the High Court for mandamus. The High Court granted the writ
because there was no effective alternative remedy. But the Supreme Court
reversed the order of the High Court.
Therefore, the Law Commission recommended an amendment to Sec. 80 whereby

the requirement of notice could be dispensed with in case of matters, which are
urgent. So these recommendations were accepted and sec. 80 was amended in
1986 providing for the power to the court to dispense with requirements of notice
in urgent matters.
2. PRIVILEGE TO WITHHOLD DOCUMENTS:
Secs. 123 and 124 of the Indian Evidence Act, 1871 provide for the privilege to
withhold documents and information.
Sec. 123 lays down that no one shall be permitted to give any evidence derived
from unpublished official records relating to the affairs of State except with the
permission of the Head of the Department.
Sec. 124 provides that no one should be compelled to give evidence as to

confidential official communications unless the witness feels that it can be
revealed in public interest.
The Government misused these privileges in many cases by trying to withhold any
document which was against its interest. Therefore the courts developed certain
norms to prevent such misuse:
1. The claim of privilege should be in the form of an affidavit which must be signed
by the Minister concerned
2. The affidavit must state within permissible limits the grounds for withholding
the documents.
3. If the court is not satisfied by the facts presented in the affidavit, the court may
summon the authority for information.
Further, courts have also disallowed the privilege where there was sufficient
evidence to show that the privilege was casually pleaded. The High Court of Kerala
reserved to itself the right even to inspect the document before allowing the claim
of privilege.
Sec. 162 of the Indian Evidence Act provides that the officer who claims the
privilege should bring to the court and then claim privilege. He cannot refuse to
take the document, to the court, and he brings the document to the court he must
satisfy the court the grounds for withholding the documents. If the court is not
satisfied, it may inspect the documents before allowing the privilege.
Government Privileges 203
3. IMMUNITY FROM STATUTE OPERATION

The government claims privileges of not being bound by a statute on the strength
of two well-known maxims:
1. The King can do no wrong.
2. The King makes laws for his subjects, not for himself.
3. The King cannot be tried in the court of his own creation.
The first case was decided on this matter by the Privy Council in Province of
Bombay vs. Municipal Corporation of Bombay.
Province of Bombay vs. Municipal Corporation of Bombay
The case was whether the government was bound by the Municipalities Act. The
court answered in the negative.
Director of Rationing and Distribution vs. Calcutta Corporation
After independence, a similar case came before the Supreme Court. The court held
that the government was not bound by a statute unless the statute provides that it
is binding the government expressly by necessary implication. This decision was
given by a bench of seven judges in which six judges formed the majority. Justice
Subha Rao gave his dissenting opinion.
Shortly after that Justice Subba Rao became the Chief Justice of India and a
similar case came before the Supreme Court in Superintendent and Legal
Remembrancer to State of West Bengal vs Corporation of Calcutta.
Superintendent and Legal Remembrancer to State of West Bengal vs.

Corporation of Calcutta
Justice Subba Rao constituted a bench of 11 judges to reconsider the decision in

Director of Rationing and Distribution vs Corporation of Calcutta, and he could
persuade eight of his colleagues that the common law theory of King can do no
wrong was not appropriate in a democratic country. Even in England, this theory
has been given up after the Crown Proceeding Act 1947. Hence the court held that
government is bound by a statute unless it is expressly or by necessary
implication been provided that the government is not bound by the statutes. It was
pointed out that ‘however high you may be the law is above you’.
Union of India vs. Jubbi
The statute provided that the tenants may become owners by paying compensation
to the landlord in the manner provided in the Act. Jubbi who was a tenant, under
the government offered to pay the compensation to become the owner. But the
government rejected this offer on the ground that the statute is not applicable to
government lands. But the Supreme Court rejected this contention holding that
there is no expressed or implied provision to exclude the government from its
operation.
4. IMMUNITY FROM ESTOPPEL
Estoppel is a rule of evidence by which a party is precluded from denying the

existence of some state of facts which he had previously asserted on which the
other party has relied on, acted up on and has suffered some detriment.
Sec. 115 of the evidence Act defines estoppel. Even though a case may not fall
under sec. 115, promissory estoppel may still be invoked requiring a man to keep
his order especially when it is not a promise but made with an intention that the
other party should act upon it.
In the initial stages, the Supreme Court refused to apply estoppel against the
government especially in violation for statutes.
Amar Singh vs. State of Rajsthan
The Supreme court refused to apply the estoppel against the government where
the collector had given an assurance that the petitioners land would not be
acquired during his lifetime under the Rajasthan Land Reforms Act.
But since this promise was in clear violation of the provisions of the statutes, the
courts refused to apply the doctrine of estoppel.
In cases where the application of estoppel jeopardizes the constitutional powers of

the government, doctrine of estoppel is not applied.
C. Shankarnarayanan vs. State of Kerala
The government issued a notification under art. 309 raising the age of retirement
but subsequently by issuing another notification, the age of retirement was
brought down to 59 years. Supreme Court refused to prevent the government from
exercising its constitutional powers by application of doctrine of estoppel.
The same rule was applied by the Supreme Court in Ramanathan Pillai vs State of
Kerala and also in State of Kerala vs Gwalior Rayons and Silk Manufacturing
Company.
Government Privileges 205
State of Kerala vs. Gwalior Rayons and Silk Manufacturing Company
In this case, the Gwalior Rayon’s company established its factory in Kerala
undertaking that the government would supply the raw material to it. But later the
government expressed its inability to supply the necessary raw material and
allowed the company to purchase its own land and promised not to interfere with
such land for a period of sixty years. The company spent substantial amount of
money and purchased 30,000 acres of land. Shortly afterwards, the government
acquired this land for agrarian reform under the powers given to it by a statute.
Such cases create real hardship for the persons who act upon the advice
responding to the invitation of the Government. Therefore, the court subsequently
relaxed their view in cases like Union of India vs Indo-Afgan Agrarian Ltd.
Union of India vs. Indo-Afgan Agrarian Ltd.
In this case, the textile Commissioner published a scheme of Export Promotion

and represented to the exporters of the woollen goods that they would be entitled
to import raw material of total amount equal to hundred percent of the FOB (Free
on Board) value of the exports.
The respondents exported the woollen goods worth Rs. 5,00,000 but he was given
the export license for Rs. 1.99 lakh. The government contended that the scheme is
only of administrative nature and not binding upon the government.
The court rejected this contention and held that though this scheme has no
statutory force, that cannot be entered against the government as such. The
government was estopped from changing its position after the parties have acted
upon the scheme.
Century Spinning and Manufacturing Company vs. Ulhasnagar Municipality
The Municipality agreed to exempt existing industrial concerns in the area from
octroi duty for a period of seven years. On the strength of this representation,
many industrial concerns expended their business. After that the Municipality
sought to impose the duty. The Supreme Court held that it was estopped from
changing its position.
Motilal Padampat Sugar Mills vs. State of U. P.
The whole law of promissory or equitable estoppel against the government was
discussed afresh by the Supreme Court in this case, and the following propositions
were laid down:
1. The doctrine can be used as a shield or as a sword.
2. The doctrine was not based on any contract and even when the contract was
invalid under art. 299 still, the government could be bound by estoppel.
3. The application of this doctrine cannot be defeated on the plea of executive

necessity on freedom of future executive action.
However, as a doctrine of promissory estoppel is that equitable doctrine, it must

yield when equity so requires. If it can be shown by the government that in the
particular facts of the case, it would be inequitable to apply the doctrine, the
doctrine cannot be applied. It cannot be applied to enforce a contract which is
necessary to law or public policy. The doctrine of promissory estoppel cannot be
availed to permit or condone a breach of law. Further, a legislature cannot be
stopped by exercising its legitimate powers in the public interest. But legislation
may be challenged on the ground of retro-activity.
CHAPTER X
SERVICES UNDER THE STATE
• Article 309
• Doctrine of Pleasure
• Restrictions on Doctrine of Pleasure
Arts. 308 to 323 are the provisions of the Constitution in respect of services under
the State. They deal with the following aspects:
1. regulation of recruitment and conditions of services of person serving the union

and the states;
2. tenure of the office of members of these services;
3. Constitutional safeguards to the civil servants;
4. Creation of All India Civil Services; and
5. Establishment of the Union and State Public Service Commissions (PSCs).
Recruitment
‘Recruitment’ is a comprehensive term and includes any method provided for

inducting a person in public service. Appointment, selection, promotion,
deputation are all well-known methods of recruitment. Even appointment by
transfer is not unknown as pointed out in Ram Avtar vs. State of U. P.
ARTICLE 309
Art. 309 of the Constitution provides as under:
Subject to the provisions of this Constitution, Acts of the appropriate Legislature

may 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:
Provided that it shall be competent for the President or such person as he may direct
in the case of services and posts in connection with the affairs of the Union, and for
the Governor of a State or such person as he may direct in the case of services and
posts in connection with the affairs of the State, to make rules regulating the
recruitment, and the conditions of service of persons appointed, to such services and
posts until provision in that behalf is made by or under an Act of the appropriate
Legislature under this article, and any rules so made shall have effect subject to the
provisions of any such Act.
The President, either directly or through officers subordinate to him may frame
service rules governing the conditions of service of the Central Government
employees.
Similarly, Governor of a state may make rules governing the conditions of service
of the State Government employees.
Ram Avtar vs. State of U. P.
The Supreme Court has held that the rule-making power under art. 309 is
identical to that of the legislature.
Once the legislature enacts a law in this matter, the rule-making power of the
Government comes to an end. However, it may continue to have rule-making
power in the areas not covered by the legislation.
Parliament has not so far passed any law on the subject. Recruitment and the
conditions of service of Central Government servants in general continue to be
governed by rules made by the President under art. 309. The rules made under
the Article which are relevant for the present purpose are:
1. The C.C.S. (Conduct) Rules, 1964.
2. The C.C.S. (C.C.A.) Rules, 1965.
3. The Railway (D. & A.) Rules, 1968.
4. The C.C.S. (T.S.) Rules, 1965.
In exercise of the powers conferred by art. 309, the Ministry of Personnel, Public
Grievances and Pensions has made Fundamental Rules (FRs) and Supplementary
Rules (SRs). Fundamental Rules together with the Supplementary Rules (popularly
known as FRSR) are considered the Bible of Rules for the central Govt. employees.
Fundamental Rules trace back their origin to the pre-independence time (came to
effect from 01-01-1922) and are the first set of rules which have been governing
the terms and conditions of service of the central Govt. employees till today (of
course with amendments from time to time). There are a total of 130 Fundamental
Rules.
Supplementary Rules are the rules framed by the President under various
Fundamental Rules. There are a total of 335 Fundamental Rules.
RELATION OF 309 WITH 246 READ WITH VII SCHEDULE

The power to make rules conferred by art. 309 of the Constitution or by other
statutes includes the power to add, amend or alter the rules by virtue of art. 367
of the Constitution and sec. 21 of the General Clauses Act, 1897.
Accordingly, so long as the Constitutional provision are not contravened, the rules
governing the conditions of service of Government servants can be altered or
amend by the Government from time to time according to the exigencies of the
Services Under the State 211
public service without the consent of a Government servant concerned who will be
bound by such amendment or alteration in the rules.
Unlike the position of a private employee, the position of a government employee is

not a contractual position, it is a status.
R. T. Rangachari vs. Secretary of State
The Privy Council observed that Rules which are manifold in numbers and most
minute in particularity are all capable of change from time to time.
D. S. Garewal vs. The State of Punjab and Another
The Supreme Court also observed that numerous rules relating to conditions of
service may have to be changed from time to time if the exigencies of public service
so require.
There is no question of consent of the Government servant concerned at least by

reason of the sheer impossibility of securing such consent from every one. It is
also open to the Government to alter service rules retrospectively which may affect
even the existing incumbents adversely.
However, the existing incumbents are generally given protection with a view to
avoiding hardship to them. The rights accruing to a Government servant under the
conditions of service in force at the time of his retirement cannot be taken away
after his retirement.
DOCTRINE OF PLEASURE
The doctrine of pleasure owes its origin to common law. The rule in England was
that a civil servant can hold his office during the pleasure of the crown and the
service will be terminated any time the crown wishes.
The same rule is applied in India, and an employee of the Central Government
holds office during the pleasure of the President of India, and an employee of the
state Government holds office during the pleasure of the Governor of the state.
Art. 310 of the Indian Constitution incorporates the Common law doctrine of
pleasure. Art. 310 expressly provides that all persons who are members of the
Defence Services or the Civil Services of the Union or of All-India Services hold
office during the pleasure of the President.
Similarly, members of the State Services hold office during the pleasure of the
Governor.
But this rule of English law has not been fully adopted in this article. A civil
servant in India could always sue the Crown for arrears of salary.
The rule is qualified by the words “except as expressly provided by the

Constitution.”
Thus art. 310 itself places restrictions and limitations on the exercise of the
pleasure under art. 310 are limited by art. 311(2). The services of permanent
Government servant cannot be terminated except,
1. in accordance with rules made under art. 309;
2. subject to the procedure in art. 311(2) of the Constitution; and
3. the fundamental rights.
The above doctrine of pleasure is invoked by the Government in the public interest
after a Government servant attains the age of 50 years or has completed 25 years
of service. This is constitutionally permissible as compulsory termination of service
under F. R. 56 (b) does not amount to removal or dismissal by way of punishment.
Further, some offices are required by their very nature to be independent. If they
are brought under the pleasure doctrine, they will find very difficult to discharge
their duties without fear or favour. Therefore, such offices are outside the purview
of the pleasure doctrine. For example, judicial officers, Election Commissioner.
While the Government reserves its right under F. R. 56 (b) to compulsory retire a
Government servant even against his wish, there is a corresponding right of the
Government servant under F. R. 56 (c) to voluntarily retire from service by giving
the Government three months notice. There is no question of acceptance of the
request for voluntary retirement by the Government when the Government servant
exercises his right under F. R. 56 (c).
Similarly, under art. 310 the Government has power to abolish a post. However,
such an action, whether executive or legislative, is always subject to judicial
review. The question whether a person whose services are terminated as a result of
the abolition of post should be rehabilitated by giving alternative employment is a
matter of policy on which the Court has no voice.
Doctrine of pleasure as developed in England has not been accepted in full in

India. It is subject to the provisions of art. 311 which lays down procedural
safeguards for civil servants. Thus art. 311 becomes a proviso to Article 310.
Therefore, services of any civil servants cannot be terminated at pleasure unless

the mandatory provisions of art. 311 have been observed.
Doctrine of pleasure is further restricted by the general law of the land which
empowers any civil servant to file suit in a court of law for enforcing any condition
of his service and for claiming arrears of pay.
Power to dismiss at pleasure any civil servant is not a personal right of the
President or the Governor as the case may be. It is an executive power which is to
be exercised at the advice of council of ministers.
The Doctrine of pleasure as contained in art. 310, being a constitutional provision,

cannot be abrogated by any legislative or executive law; therefore art. 309 is to be
read subject to art. 310. This is not the case in England where Constitution is
unwritten and hence the common law doctrine of pleasure can be whittled down
by any act of Parliament.
CLAUSE (1): OFFICE DURING THE PLEASURE OF THE STATE
Art. 310(1) corresponds to the English rule that all service, civil, or military, under
the Crown is held at the pleasure of the Crown, so that the public servant may be
dismissed from the office at will, without any cause assigned.
The doctrine of pleasure appointment received constitutional sanction under art.

310, but unlike in the UK, in India, it is not subject to any law made by the
Parliament, but is subject to only whatever expressly provided by the Constitution.
Therefore the distinction between doctrine of pleasure appointment as it existed in

feudal set up and in a democratic set up has to be borne in mind.
The service being terminable at the pleasure of the State, there is no limitation as
to the grounds upon which the services of a Government servant may be
terminated.
Once the procedure under art. 311(2) has been complied with, the Courts are not
entitled to determine whether the ground or the charge under which Government
has proceeded under a Government servant is sufficient to warrant a dismissal.
But a rule, which provides for dismissal on a ground which unreasonably restricts
the fundamental rights of a Government servant, may be challenged as
unconstitutional.
The words “pleasure of the President or Governor” do not mean that the Article is
applicable only when a Government servant is dismissed by the President or the
Governor personally.
Under art.s 53(1) and 154 (1), the executive power of the Union or a state may be
exercised by the President or Governor either directly or through officers
subordinate to him.
Hence art. 310 is attracted whenever a person is dismissed by an officer

competent to dismiss such person serving under the Union or a State, as the case
may be.
Whether the Pleasure may be Fettered by Legislation?
In India, the doctrine of pleasure has been embodied in the Constitution itself, in
art. 310(1). The Supreme Court has pointed out that, since the power of the State
to dismiss a public servant at its pleasure has been provided in art. 310(1), “except
as expressly provided by the Constitution”. Therefore, it follows that its power
cannot be fettered by any statute.
In India, the power to dismiss a Government servant at pleasure is subject to only

those exceptions which are specified in the Constitution itself. It cannot be taken
away or curtailed by legislation, though the mode of its exercise may be.
Whether the Pleasure of the Government may be Fettered by Contract?
Art. 310(1) is not subject to the provisions of any contract. Hence, the pleasure of
the President or the Governor to dismiss at pleasure cannot be fettered by any
contract to the contrary. Any such contract would be bad as a ‘clog’ on the
pleasure or for contravention of art. 310(1).
Where the pleasure of the Government is itself subject to an express provision of

the Constitution, the constitutional provision cannot be overridden by the
Government by entering into a contract.
Satish Anand vs. Union of India
However, in this case, the Supreme Court stated that the State can enter into
contracts of temporary employment and impose special terms in each case,
provided they are not inconsistent with the Constitution.
Those who chose to accept those terms and enter into the contract are bound by
them, even as the State is bound. In such cases, the employment under State is
not a status, but a contractual position.
Whether the Pleasure under Art. 310(1) may be Delegated?
Though the contrary opinion was expressed in some cases, it is now settled that
the pleasure under art. 310(1) need not be exercised by the President or the
Governor personally.
Art. 310 is not outside the scope of art. 154. The result is that the pleasure is to be
exercised under art. 310(1) on the aid and advice of the Council of Ministers.
Further, it being an executive power of the State within the meaning of art. 154,
the exercise of pleasure may be delegated to subordinate officers in accordance
with the laws or rules made under art. 309 which may prescribe the procedure by
which and the authority by whom the pleasure may be exercised.
In short, the pleasure of the President to terminate the services of a Government

servant can be exercised by such officers to whom the President or Governor
delegates the power in accordance with relevant laws or rules made under
art. 309.
CLAUSE (2): ‘CIVIL POST’
Art. 310(2) states that though all service under the Government is terminable at
any time, this clause provides for payment of compensation where service is held
under a special contract which provides for payment of compensation and the
service is terminated before the expiry of the contractual period. This clause is,
though, not applicable in the following cases:
1. In the case of members of Defence Services.
2. In the case of members of All India Services.
3. In the case of members of a civil service of the Union or of a State.
The scope of this clause is very narrow and is limited to those cases where the
post does not belong to any of the regular services and the Government is obliged
to enter into a special contract for securing the services of a person having special
qualifications.
The compensation is payable only for premature termination of contractual

service.
This clause enables the President or Governor to enter into a contract with
specially qualified persons providing for payment of compensation where no
compensation is payable under the doctrine “service at the pleasure of the State”.
RESTRICTIONS ON THE DOCTRINE OF PLEASURE [ART. 311]
The pleasure of the President or Governor is controlled by provisions of art. 311,

so the field covered by art. 311 is excluded from the operation of the doctrine of
pleasure.
The pleasure must be exercised in accordance with the procedural safeguards

provided by art. 311. Under Indian Constitution several restrictions has been
placed on Doctrine of Pleasure.
1. The service contract entered between the civil servant and government may be
enforced.
2. The fundamental rights guaranteed under the constitution are restrictions on

the pleasure doctrine and therefore this doctrine cannot be resorted too freely
and unfairly, art.s 14, 15 and 16 of the Constitution imposed limitations on
free exercise of Pleasure Doctrine.
Art. 14 embodies the principle of reasonableness the principle of

reasonableness is anti-thesis of arbitrariness. In this way, art. 14 prohibits
arbitrary exercise of power under pleasure doctrine.
In addition to art. 14 of the constitution art. 15 also restricts arbitrary exercise

of power in matters of services. Art. 15 prohibits termination of service on
grounds of religion, race, caste, sex or place of birth or any of them.
Another limitation is under Art. 16(1) which obligates equal treatment and bars
arbitrary discrimination.
3. Further the doctrine of pleasure is subject to many more limitations and a

number of posts have been kept outside the scope of pleasure doctrine.
Under the constitution the tenure of the Judges of the High Courts and
Supreme court, of the comptroller and Auditor-General of India, of the Chief
Election Commissioner and the Chairman and Members of Public service

commission is not at the pleasure of the Government.
Thus, the general principle relating to civil services has been laid down under
art. 310 of the Constitution to the effect that government servants hold office
during the pleasure of the government and art. 311 imposes restrictions on the
privilege of dismissal at the pleasure in the form of safeguards.
APPLICATION OF ART. 311
Termination of Service Amounting to Punishment
The protection under art. 311 is available only when ‘dismissal, removal, reduction
in rank is by way of punishment.’ It is difficult to determine as to when an order of
termination of service or reduction in rank amounts to punishment.
In Parshottam Lal Dhingra vs. Union of India, the Supreme Court laid down
two tests to determine when termination is by way of punishment:
1. Whether the servant had a right to hold the post or the rank?
2. Whether he has been visited with evil consequences?
If a government servant had a right to hold the post or rank under the terms of
any contract of service, or under any rule, governing the service, then the
termination of his service or reduction in rank amounts to a punishment and he
will be entitled to protection under art. 311.
Arts. 310 and 311 apply to Government servants, whether permanent, temporary,
officiating or on probation.
The procedure laid down in art. 311 is intended to assure, first, a measure of
tenure to government servants, who are covered by the Article and secondly to
provide certain safeguards against arbitrary dismissal or removal of a government
servant or reduction to a lower rank.
These provisions are enforceable in a court of law. Where there is an infringement

of art. 311, the orders passed by the disciplinary authority are void ab initio and in
the eye of law “no more than a piece of waste paper” and the government servant
will be deemed to have continued in service or in the case of reduction in rank, in
his previous post throughout.
‘Civil Post’
The protective safe guards given under art. 311 are applicable only to civil
servants, i.e., public officers. They can be dismissed from service without
assigning any reason. They are not available to defence personnel.
State of U. P. vs. A. N. Singh
The Supreme Court has held that a person holds a civil post if there exists a
relationship of master and servant between the State and the person holding the
post.
The relationship is established if the State has right to select and appoint the
holder of the post, right to control the manner and method of his doing the work
and the payment by it of his wages or remuneration.
‘Dismissal’ and ‘Removal’
The protection under art. 311(2) is available only where dismissal, removal or
reduction in rank is proposed to be inflicted by way of punishment and not
otherwise.
‘Dismissal’ and ‘removal’ are synonymous terms but in law they acquired technical
meanings by long usage in Service Rules.
There is, however, one distinction between the ‘dismissal’ and ‘removal’, that is,
while in case of ‘dismissal’ a person is debarred from future employment, but in
case of ‘removal’ he is not debarred from future employment.
Temporary Employees and Probationers
In State of Punjab & Another vs. Sukh Raj Bahadur, the Supreme Court laid
down the following principles regarding the applicability of art. 311 to temporary
servants and probationers.
1. The services of a temporary servant or a probationer can be terminated under

the rules of his employment and such termination without anything more
would not attract the operation of Art. 311 of the Constitution.
2. The circumstances preceding or attendant on the order of termination of service

have to be examined in each case, the motive behind it being immaterial.
3. If the order visits the public servant with any evil consequences or casts an
aspersion against his character or integrity, it must be considered to be one by
way of punishment, no matter whether he was a mere probationer or a
temporary servant.
4. An order of termination of service in unexceptionable form preceded by an

enquiry launched by the superior authorities only to ascertain whether the
public servant should be retained in service, does not attract the operation of
art. 311 of the Constitution.
5. If there be a full-scale departmental enquiry envisaged art. 311 i.e. an Enquiry

Officer is appointed, a charge sheet submitted, explanation called for and
considered, any order of termination of service made thereafter will attract the
operation of the said article.
Compulsory Retirement
As noted earlier, the protection under art. 311 is available only when the
dismissal, removal or reduction in rank is by way of punishment. Therefore, the
question which often arises is that whether compulsory retirement amounts
punishment, and consequently, is protection under art. 311 available to a person
who is compulsorily retired?
Compulsory retirement simpliciter is not punishment. It is done in ‘public interest’

and does not caste a stigma on the Government servant. Therefore, the employee
cannot claim an opportunity to be heard before he is compulsorily retired from
service.
In State of Gujarat vs. Umedbhai M. Patel, the Supreme Court of India has
issued certain guidelines regarding compulsory retirement, and laid down the
following principles:
1. When the Service of a public servant is no longer useful to the general

administration, the officer can be compulsorily retired in public interest.
2. Ordinarily the order of compulsory retirement is not to be treated as a

punishment under art. 311 of the Constitution.
3. For better administration, it is necessary to chop off dead wood but the order of
compulsory retirement can be based after having due regard to the entire
service record of the officer.
4. Any adverse entries made in the confidential record shall be taken note of and
be given due weightage in passing such order.
Even uncommunicated entries in the confidential report can also be taken in to

consideration.
5. The order of compulsory retirement shall not be passed as a short cut to avoid
departmental inquiry when such course is more desirable.
6. If the officer is given promotion despite adverse entries in the C. R., that is a
fact favour of the officer.
7. Compulsory retirement shall not be imposed as a punitive measure.
In Baikunth Nath vs. Chief Medical Officer, the Court issued further
clarifications regarding compulsory retirement.
1. An order of compulsory retirement is not a punishment. It implies no stigma.
2. The order has to be passed by the Government in public interest.
The order is passed on the subjective satisfaction of the Government.
3. Principles of natural justice have no place in the context of an order of

compulsory retirement. However courts will interfere if the order is passed mala
fide or there is no evidence or it is arbitrary.
4. The Government shall have to consider the entire record of service before taking
a decision in the matter particularly during the later years’ record and
performance.
5. An order of compulsory retirement is not liable to be quashed by a Court

merely on showing that while passing it excommunicated adverse remarks were
taken in to consideration. The circumstances by itself cannot be a basis for
interference.
EXCEPTIONS TO ARTICLE 311
No Removal by Subordinate Authority
Removal by subordinate authority does not mean that the dismissal or removal
must be by the same authority who made the appointment or by his direct
superior. It is enough if the removing authority is of the same or co-ordinate rank
as the appointing authority.
Mahesh vs. State of U. P.
The person appointed by the Divisional Personnel Officer, E.I.R., was dismissed by
the Superintendent, Power, E.I.R. The Court held the dismissal valid as both the
officers were of the same rank.
Reasonable Opportunity of Being Heard
Managing Director, ECIL vs. B. Karunakar
In this important judgement, the Supreme Court has held that when the enquiry
officer is not disciplinary authority, the delinquent employee has a right to receive
the copy of the enquiry officer’s report so that he could effectively defend himself
before the disciplinary authority.
A denial of the enquiry officer’s report before the disciplinary authority takes its
decision on the charges, is a denial of reasonable opportunity to the employee to
prove his innocence and is a breach of the principles of natural justice.
It is difficult to say in advance to what extent the said findings would influence the
disciplinary authority while drawing its conclusions.
The Court affirmed its rulings in Union of India vs. Mohd. Ramzan, but held that its
ruling will apply only prospectively.
In Khem Chand vs. Union of India, the Supreme Court held that the “reasonable
opportunity” means:
1. An opportunity to deny his guilt and establish his innocence, which he can do
only if he is told what the charges levelled against him are and the allegations
on which such charges as based.
2. An opportunity to defend himself by cross examining the witness produced

against him and by examining himself in support of his defiance.
3. An opportunity to make his representation as to why the proposed punishment

should not be inflicted on him.
Exclusion of Opportunity to be Heard
Art. 311(2) provides that reasonable opportunity of being heard is not applicable in
the following cases:
1. 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
2. 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 inquiry; or
3. 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 inquiry.
An employee who is convicted on criminal charges need not be given an

opportunity to be heard, before his dismissal from service.
Divisional Personal Officer, Southern Railway vs. T. R. Chellappan
However, in this case the Supreme Court held that the imposition of the penalty of
dismissal, removal or reduction in rank without holding an inquiry was
unconstitutional and illegal.
The objective consideration is only possible when the delinquent employee is being
heard.
Union of India vs. Tulshiram Patel
But in this case, the Court held that the dismissal, removal or reduction in rank of
a person convicted on criminal charges is in public interest, and therefore not
violative of art. 311(2). The Court thus overruled its earlier decision in
Chellappan’s Case.
EXCEPTIONS TO ART. 311(2)
The proviso to art. 311(2) provides for certain circumstances in which the
procedure envisaged in the substantive part of the clause need not be followed.
They are:
1. Conviction on a Criminal Charge;
2. Impracticability; and
3. Reasons of security.
CONVICTION ON A CRIMINAL CHARGE
One of the circumstances excepted by clause (a) of the provision is when a person
is dismissed or removed or reduced in rank on the ground of conduct which has
laid to his conviction on a criminal charge.
The rationale behind this exception is that a formal inquiry is not necessary in a
case in which a court of law has already given a verdict.
However, if a conviction is set aside or quashed by a higher court on appeal, the

Government servant will be deemed not to have been convicted at all. Then the
Government servant will be treated as if he had not been convicted at all and as if
the order of dismissal was never in existence.
If the appointing authority were aware of the conviction before he was appointed, it
might well be expected to refuse to appoint such a person but if for some reason
the fact of conviction did not become known till after his appointment, the person
concerned could be discharged from service on the basis of his conviction under
cl. (a) of the proviso without following the normal procedure envisaged in art. 311.
IMPRACTICABILITY
Clause (b) of the proviso provides that where the appropriate disciplinary authority
is satisfied, for reasons to be recorded by that authority in writing that it does not
consider it reasonably practicable to give to the person an opportunity of showing
cause, no such opportunity need be given.
The satisfaction under this clause has to be of the disciplinary authority that has
the power to dismiss, remove or reduce the Government servant in rank.
As a check against an arbitrary use of this exception, it has been provided that the
reasons for which the competent authority decides to do away with the prescribed
procedures must be recorded in writing setting out why it would not be practicable
to give the accused an opportunity.
The use of this exception could be made in case, where, for example a person
concerned has absconded or where, for other reasons, it is impracticable to
communicate with him.
REASONS OF SECURITY
Under proviso (c) to art. 311 (2), where the President is satisfied that the retention
of a person in public service is prejudicial to the security of the State, his services
can be terminated without recourse to the normal procedure prescribed in
art. 311(2).
The satisfaction referred to in the proviso is the subjective satisfaction of the

President about the expediency of not giving an opportunity to the employee
concerned in the interest of the security of the State.
That indicates that the power given to the President is unfettered and cannot be
made a justifiable issue, as that would amount to substituting the satisfaction of
the court in place of the satisfaction of the President.
The Constitution of India through art. 311, thus protects and safeguards the
rights of civil servants in Government service against arbitrary dismissal, removal
and reduction in rank.
Such protection enables the civil servants to discharge their functions boldly,
efficiently and effectively. The public interest and security of India is given
predominance over the rights of employees.
So conviction for criminal offence, impracticability and inexpediency in the interest

of the security of the State are recognised as exceptions.
The judiciary has given necessary guidelines and clarifications to supplement the
law in art. 311. The judicial norms and constitutional provisions are helpful to
strengthen the civil service by giving civil servants sufficient security of tenure.
But there may arise instances where these protective provisions are used as a
shield by civil servants to abuse their official powers without fear of being
dismissed.
Disciplinary proceedings initiated by Government departments against corrupt

officials are time consuming.
CHAPTER XI
STATUTORY CORPORATIONS
• Growth of Public Sector in India

• Reasons for Increasing State Participation
• Objectives of Public Sector
• Features of Statutory Corporations
• Merits of Statutory Corporations
• Limitations of Statutory Corporations
• Classification of Statutory Corporations
• Government Company and Statutory Corporation
• Control of Statutory Corporations
• Government Control
• Legislative Control
• Judicial Control
• Public Control
• Media Control
• Consumer Councils
‘Statutory Corporations’ are autonomous corporate bodies created by Special Acts
of Parliament or state legislature with defined functions, powers, duties,
immunities etc.
They are also called ‘public corporations’, ‘public undertakings’ or ‘public sector
undertakings’.
State helps the statutory corporations by subscribing the full capital and it is fully
owned by the State.
Government nominates the Board of Directors and they manage and operate such
corporations. It enjoys financial autonomy and is answerable to legislature only
which creates it.
GROWTH OF PUBLIC SECTOR IN INDIA

The public sector undertaking is growing at a rapid rate after independence. At
present in our country, there are 750 State public sector enterprises and 225
central public sector enterprises approximately employing nearly about 1,00,000
managers.
During 7th Five year plan, on an average 50,000 Crore of rupees were invested at
the beginning in public sector enterprises which brought a remarkable
contribution in the field of economic development. Needless to mention here that
these public sector enterprises covered all economy sector.
REASONS FOR INCREASING STATE PARTICIPATION
The reasons for increasing State participation are as under:
1. Low Savings and Investment
2. Establishment of Large Scale or Heavy Industries
3. Concentration of Economic Power
4. Profit Motive Criterion
5. Uneven Distribution of Resources
1. LOW SAVINGS AND INVESTMENT

The savings and investment pattern of the country is very low. Private sector is
totally proved to be failure i.e., neither they mobilised the resources nor applied
properly the foreign investment opportunities for the development of the country.
On the other hand, the position is better in the case of public sector since the
State squeezes the additional savings and invests the same for the development of
the country as a whole.
2. ESTABLISHMENT OF LARGE SCALE OR HEAVY INDUSTRIES

Since the resources of the private sector undertaking is limited, heavy or large
scale industries cannot be operated for lack of funds or resources. For example,
Iron and Steel industry that needs a larger amount of funds which is not possible
to supply by the private sector.
The same is quite possible under the public sector as because the state can
accommodate the necessary funds.
3. CONCENTRATION OF ECONOMIC POWER

Concentration of economic power restores in the hands of a few under private
sector. If the public sector industries develop the same can check the growing
disparities and maintains a balance.
4. PROFIT MOTIVE CRITERION

It is needless to say that private sector undertakings do not find any interest on
the less-profitable undertakings since its object is to earn maximum profit even if
it may be considered as necessary for the social benefit and for the development of
the country as a whole or which attains self-sustained economic growth.
That is why, under the circumstances, public sector undertakings should come
forward in order to develop the neglected sectors since it has a service motive.
5. UNEVEN DISTRIBUTION OF RESOURCES

In order to make a balanced development of trade and commerce, the Government
should not leave the entire field of trade and commerce under private sector which
practically invites uneven distribution of resources within the country which also
affect the promotion of export trade with foreign countries.
We know that the primary objective of the public sector undertaking is to do the
greatest good to the greatest number and to supply social services for the benefit
of the largest section of the people. At the same time, it becomes necessary to
strengthen the position of the state as a whole.
Statutory Corporations 229
The same is accepted by the new industrial policy of the Government of India
which states that,
“the nation has now set itself to establish a social order where justice and equality
of opportunity shall be secured to all the people ...”.
OBJECTIVES OF PUBLIC SECTOR
The general objectives of public sector are:
1. To provide required investment and promotion of industrial activity by way of

indirect public investment either by supplying financial assistance to private
sector or to supply infrastructural and basic activities;
2. To supply socio-economic developmental opportunities which should not be

transferred to private sector undertakings;
3. To nationalize those companies which are foreign dominated,
4. To supply activities relating to import-substituting and export-promoting

which are essential for the development of the country;
5. To develop savings by mobilizing resources with the help of proper public

sector prices more quick than others;
6. To introduce certain activities to take the benefit of foreign aid and co-
operation in the public sector;
7. To make a balanced regional development by establishing regional

promotional undertakings in less developed regions, e.g., D V. C (Damodar
Vally Corporation);
8. To protect the interest of small farmers by transferring all private licences to

the corporations of agricultural reforms;
9. To control the concentration of economic power and wealth as well;
10. To make a social control on long term capital by supplying the necessary
financial assistance through public financial institutions which are quite
justified;
11. To supply necessary finance for various development programmes which are
essential for the development of the country;
12. To make opportunities for employment and to form a rational society which is
absolutely desired;
13. To re-distribute incomes either by raising wage levels and checking higher
salary level or by supply outputs at a concessional rate to the poor etc.
14. To generate surplus resources for future growth and development; and
15. To use human resources and material resources in a better way.
FEATURES OF STATUTORY CORPORATIONS
The following are the salient features of statutory corporations:
1. Creature of a Statute
2. A Corporate Body
Therefore, not a citizen under the Citizenship Act, 1955
3. Owned by State
Therefore, ‘State’ under art. 12 of the Constitution
4. Answerable to Legislature
5. Own Staffing System
6. Financial Independence:
1. CREATURE OF A STATUTE
A statutory corporation is established by a statute. The parent statute i.e., the

statute under which the statutory corporation is established lays down the
powers, functions, obligations and liabilities.
Therefore, a statutory corporation may undertake only those activities which are
expressly authorised by the parent statute. It may also undertake activities which
are incidental to those activities authorised by the parent statute as long as they
are not prohibited.
Activities which are not authorised by the parent statute are ultra vires the
corporation, and are not binding on the corporation. Further, as the acts cannot
be ratified by the corporation. Doctrine of estoppel and doctrine of acquiescence
are also not applicable in such cases.
The parent statute may delegate rule-making powers to the corporation. Rules
made by the corporation in exercise of such powers are binding laws.
2. A CORPORATE BODY
It is an artificial person created by law and is a legal entity. Such corporations are
managed by Board of Directors constituted by Government.
Being a separate legal entity, a statutory corporation may enter into contracts, and
can undertake any kind of business under its own name. It may hold and dispose
of properties, and may sue and be sued.
Not a Citizen
Being an artificial person, a statutory corporation is not a citizen under the

Citizenship Act, 1955, inasmuch as sec. 2 of the Citizenship Act, 1955 provides
that the word ‘person’ shall not include any company, association or body of
persons whether incorporated or not.
As a consequence, a statutory corporation cannot claim fundamental freedoms

guaranteed under art. 19 of the Constitution. In STC vs. CTO and TELCO vs.
State of Bihar, the Supreme Court accepted this view.
As shareholders and company are separate persons, a shareholder cannot seek to

enforce the rights of the company. A shareholder does not have locus stadi in such
cases.
R. C. Cooper vs. UoI
The Supreme Court held that where the infringement of the right of a company
leads to the infringement of rights of an individual shareholder also, the
shareholder may enforce his right under art. 19, which may indirectly benefit the
company also.
3. OWNED BY STATE
State provides help to such corporations by subscribing the capital fully or wholly.
It is fully owned by the State. It undertakes regulatory, benefactory, commercial or
developmental activities on behalf of the government.
Corporation a State under art. 12 of the Constitution
A statutory corporation is a State under art. 12 of the Constitution, falling under

the ‘other authorities’ clause of the article. As the government has deep and
pervasive control over the corporation, the corporation is treated as an arm of the
government.
As a consequence, fundamental rights may be claimed against a statutory

corporation. It is subject to the writ jurisdiction of the Supreme Court under
art. 32 and the writ jurisdiction of the High Courts under art. 226.
Not Government
Though a statutory corporation is State under art. 12 and may be under the
control of the government, it is not itself a government. This leads to three
important consequences:
1. Sixty days notice as required under sec. 80 of the Civil Procedure Code, 1908 is
not mandatory before instituting a suit against a statutory corporation.
2. A statutory corporation cannot claim the privilege under secs. 123 and 124 of
the Indian Evidence Act, 1872, which is available to the government. It cannot,
in other words, claim privilege to withhold documents.
3. Immunity from law given to government cannot be enjoyed by a statutory

corporation. Thus, for example, where a statute does not expressly or by
necessary implication exempt a statutory corporation from payment of taxes,
the statutory corporation is liable to pay tax in the same way as any other
person. Hence, a statutory corporation is an ‘assessee’ under the Income Tax
Act, and a ‘dealer’ under the Goods and Service Tax Act.
4. ANSWERABLE TO LEGISLATURE
A statutory corporation is answerable either to Parliament Legislature or State
Assembly whosoever creates it. Parliament or state legislature has no right to
interfere in the working of statutory corporation. It can only discuss policy matters
and overall performance of corporation.
Where rule-making powers are conferred upon a statutory corporation, the parent
statute may provide for legislative control of the delegated legislation. In such
cases the legislature may exercise its control over the rule-making powers of the
statutory corporation.
5. OWN STAFFING SYSTEM

Employees are not government servants, even though government owns and
manages a corporation. Employees of various corporations receive balanced or
uniform pay and benefits by the government. They are recruited, remunerated and
governed as per the rules laid down by the corporation.
Status of Employees
Employees of a statutory corporation are appointed by the corporation itself. The

terms of conditions of their service is governed by the Rules framed by the
corporation. Some corporations may adopt the Rules applicable to government
servants, instead of framing their own Rules.
Protection of art. 311 Not Applicable
As a statutory corporation is not government and the employees are appointed by

the corporation, they are not government servants. Therefore, the protection given
to government servants under art. 311 of the Constitution is not available to the
employees of a statutory corporation. However, they may enjoy the protection
given in Part III of the Constitution, and they may claim application of the rules of
natural justice. Thus, practically, they may enjoy protection similar to that
available to government servants under art. 311.
Where a corporation is not an independent statutory authority, but merely a limb

of a government department, its servants are government servants and they may
claim protection under art. 311.
Jaswant Singh vs. Union of India
Thus, in this case, the servants of Beas Construction Board were held to be
government servants and the protection under art. 311 was extended to them.
Not an Office of Profit
In many cases a person who is holding an office of profit cannot be appointed to

another office. If wants to occupy such other office, he has to vacate the office of
profit occupied by him.
For example, under arts. 102 and 191 a person holding an office of profit cannot
be a member of Parliament or State Legislature, respectively. If he wants to
become M.P., M.L.A. or M.L.C., he has to first vacate the office of profit held by
him.
As employees of a statutory corporation are not government servants, and

government has no say in their appointment and removal they are not deemed to
hold an office of profit.
But where the Rules of statutory corporation empower the government to appoint
or remove an employee, such employee is deemed to hold an office of profit.
Services of the Employee are Contractual
Relationship between employer and employee are contractual in nature. But a

government servant’s employment is not contractual employment, but is a status.
The difference between an employment which is a status and an employment

which is contractual in nature is that, where the employee is wrongfully dismissed
from service, he may claim reinstatement if his employment is a status. If his
employment is purely contractual, he cannot claim reinstatement, but may claim
damages only.
As employees of a statutory corporation are not government servants, they do not

enjoy status. Their services are purely contractual. Hence, if an employee of a
statutory corporation is wrongfully dismissed, he cannot claim reinstatement, but
he may only sue for damages.
However, in Sukhdev Singh vs. Bhagatram, Supreme Court has held that the
Statutory Regulations of a corporation give its employees a statutory status.
Not a Public Servant
Though the definition of public servant under sec. 21 is wide enough to cover
employees of a statutory corporation, in some cases they are held to be not public
servants.
The consequence is that where a person is a public servant, provisions of sec. 197
of Criminal Procedure Code, 1973 are applicable. Sec. 197 provides that prior
sanction of the head of the department or the government is mandatory for
prosecuting a public servant.
S. S. Dhanoa vs. Municipal Corporation
The Supreme Court held that a member of the Indian Administrative Service who
was posted in Super Bazaar was not a public servant, and hence may be
prosecuted without obtaining the sanction of the central government.
This ruing is criticised by many jurists, as the Super Bazaar was under deep and
pervasive control of the government as the government held 97% shares. This
ruling also conflicts with the ruling of the Supreme Court in Ajay Hasia vs.
Khald Mujib.
However, the parent statute may provide that the employees of the corporation
formed under it shall be deemed to be public servants.
Not a Civil Servant
An employee of a statutory corporation cannot acquire the status of a civil servant.

Even where the parent statute provides that the employees of the corporation
formed under it shall be deemed to be public servants, they cannot be treated as
civil servants. Further, adopting Fundamental Rules by the corporation also does
not make any difference.
Benefit of Industrial Laws Available
Employees of statutory corporations are allowed the benefits of industrial laws,

especially in the matter of wage fixation.
6. FINANCIAL INDEPENDENCE
Depending upon the provisions of the parent statute, a statutory corporation is
largely autonomous in finance and management. It enjoys financial autonomy or
independence. It is not subject to the budget, accounting and audit controls.
After getting the prior permission from the government, it can even borrow money
within and outside the country.
MERITS OF STATUTORY CORPORATIONS
The following are the advantages and merits of statutory corporations:
1. Initiative and Flexibility
2. Avoids Red-Tapism
3. Easy to Raise Capital
4. Works with Service Motive
5. Secures Working Efficiency
1. Initiative and Flexibility: A statutory corporation manages and operates its

affairs independently, without any government’s interference, with its own
initiative and flexibility.
2. Avoids Red-Tapism: Red-tapsim and bureaucracy are such evils that hamper
the working of organizations. Such evils are not found in statutory corporations. It
can take quick decisions and prompt actions on any matter that affects its
business.
3. Easy to Raise Capital: As such corporations are fully owned by government,

they can easily raise required capital by floating bonds at low rate of interest.
Since these bonds are safe, public also feels comfortable in subscribing such
bonds.
4. Works with Service Motive: They work with the aim to render services and
profit earning is not the first priority. The profits that such corporations earn are
utilized for the benefit of consumers and community.
Problems of exploitation, speculation and profiteering etc. are avoided in case of

statutory corporations.
5. Secures Working Efficiency: Such corporations provide better amenities and

more attractive terms of service to its employees which helps in reducing the
labour problems. It, thus, helps in securing greater working efficiency.
LIMITATIONS OF STATUTORY CORPORATIONS
Statutory corporations also suffer from some disadvantages or limitations. Main

limitations of statutory corporations are:
1. Less Autonomy
2. Inflexibility
3. Clash Amongst Divergent Interests
4. Ignores Commercial Principles
5. Excessive Public Accountability
1. Less Autonomy: In practice, autonomy of statutory corporations are in a closed

and systematic way controlled by the government even in matters which allow
them to enjoy freedom. ONGC, FCI and Electricity Boards are statutory
corporations important to government and public both.
But Central Government and state Governments curtail their freedom which as
per the Acts they are entitled to.
2. Inflexibility: A corporation is said to be inflexible and insensitive to changing

situations because an amendment in the Act of legislature is required, if any
change in objects and powers of corporation has to be made.
3. Clash Amongst Divergent Interests: Government appoints the Board of

Directors and their work is to manage and operate corporations. As there are
many members, it is quite possible that their interests may clash. Because of this
reason, the smooth functioning of corporation may be hampered.
4. Ignores Commercial Principles: Statutory corporations may ignore the

commercial principles in their working because they do not work to earn profit and
do not have any fear of loss. Without these principles, inefficiency and losses can
take place in a corporation.
5. Excessive Public Accountability: Such corporations work with the motive to

render services and not profit motive. This public accountability of corporation act
as a stumbling block in operational efficiency of the enterprise.
CLASSIFICATION OF STATUTORY CORPORATIONS

There is a wide variety of statutory corporations. Each corporation is established
for a different purpose and according to its purpose the constitution and other
aspects are decided.
However, considering the purpose and function as well as some main features of
different statutory corporations, we may classify them as under:
1. Industrial Corporations;
2. Commercial Corporations;
3. Financial Corporations;
4. Commodity Corporations;
5. Social and Service Providing Corporations; and
6. Developmental Corporations.
1. INDUSTRIAL CORPORATIONS
Statutory corporations which are formed to operate the nationalized industry mills
or industry mills established by the State are called ‘industrial statutory
corporations’.
Such corporations are called ‘sectoral corporations’ because they operate industry
mills in one certain sector.
2. COMMERCIAL CORPORATIONS
Statutory corporations which undertake commercial activities directly by

remaining under some concerned ministry are called ‘commercial statutory
corporations’.
Commercial statutory corporations are related to selling and buying products and
services to stabilize the product price and make a profit.
Noted examples are Road Transport Corporations (KSRTC, NWKRTC, EWKRTC,

etc.), Electricity Boards (KPTCL, BESCOM, HESCOM, MESCOM, GESCOM, etc.),
Bharat Sanchar Nigam Ltd. (BSNL), Videsh Sanchar Nigam Ltd. (VSNL), etc.
3. FINANCIAL CORPORATIONS
These statutory corporations are established for providing financial assistance to

eligible enterprises. They may also be in banking or insurance sectors.
Industrial Finance Corporation (IFC), Unit Trust of India (UTI), Life Insurance
Corporation (LIC), Reserve Bank of India (RBI), etc. are noted examples.
4. COMMODITY CORPORATIONS
These statutory corporations primarily undertake the of development of a

commodity, such as the Oil and Natural Gas Commission (ONGC), Tea Board,
Coffee Board and Silk Boards. Often, they also regulate the concerned sectors.
5. SOCIAL AND SERVICE PROVIDING CORPORATIONS
Statutory corporations which are formed for social service and public welfare at a
regional or national level are called ‘service providing statutory corporations’. The
main purpose of these corporations is public welfare not earning a profit. As they
are involved in social service, they are also called ‘social statutory corporations’.
6. DEVELOPMENTAL CORPORATIONS
Statutory corporations which are formed and operated for the development of
financial structure, education, industry, culture, literature, and public welfare are
called ‘developmental statutory corporations’. The main purpose of such
corporations is development of a specific sector and not earning profit.
The Damodar Valley Corporation (DVC), which is established by the Damodar

Valley Corporation Act, 1948 to control floods and utilize water for irrigation and
power generation is a noted example of such corporations.
The above classification is not a strict classification. In many cases, a corporation

falls under more than one head. For example, BSNL and VSNL may be
commercial corporations as well as a developmental corporations, as they strive to
provide telecommunication and internet to all parts of the country, and thereby
see that people from all parts of country can be brought together and grow. So also
Tea Board and Coffee Board may be viewed as commodity corporations as well as
commercial corporations and developmental corporations.
GOVERNMENT COMPANY AND STATUTORY CORPORATION
FORMATION
A government company is a corporate body that is created under the Indian

Companies Act, 1956. It is governed by provisions of Companies Act. Whereas,
statutory corporation is a corporate body created by either Parliament or State
Legislature by a special act which defines its powers, duties and functions.
MANAGEMENT
Statutory corporation is managed by the Board of Directors nominated by the

government whereas government company is managed by Board of Directors
consisting of members nominated by the government and also members elected by
shareholders.
CAPITAL
Government subscribes the full capital in case of statutory corporation and

government pays a minimum of 51% of capital in case of government company.
SCOPE FOR PRIVATE PARTICIPATION
There is no scope of private participation in case of statutory corporation. In case

of government company, there is a scope for private participation in the capital if
the company is partly owned by the government.
OPERATIONAL AUTONOMY
A statutory corporation works as an autonomous body within the permissions of

the Act. It enjoys considerable degree of autonomy with no interference of
government in day-to-day activities. A government company runs on commercial
principles like a private enterprise and enjoys higher degree of freedom from
government interference.
FLEXIBILITY
A public corporation is subject to some restrictions of the government whereas a

government company enjoys more freedom from government control.
ACCOUNTABILITY
Public, corporation is accountable to the public through legislature whereas in a

government company, government and the concerned ministry are accountable to
the public.
CONTROL OF STATUTORY CORPORATIONS
As may be seen from the above description, a statutory corporation has significant
role to play in the growth of he country and to that effect, it has
There are different controls over statutory corporations:
1. Government Control;
2. Legislative Control;
3. Judicial Control;
4. Pubic Control through
(a) Mass Media;
(b) Consumer Councils;
(c) Consumer Forums; and
(d) Interest Representation or Consultation.

1. GOVERNMENT CONTROL
Government control over public enterprises is highly significant and effective.

Governmental control does not mean governmental interference.
There are various modes of governmental control over statutory corporations. The
following are the main such modes:
1. Power of Nomination, Appointment Removal and Dissolution;
2. Power to Issue Directions;
3. Power to Control Finances; and
4. Power to Institute Enquiries
1. Power of Nomination, Appointment Removal and Dissolution
The parent statutes often provide for nomination or appointment as well as for
removal of some of the directors or some important persons in the management of
the corporation. For example, the Reserve Bank of India Act lays down that the
Governor of Reserve Bank shall be appointed by the central government, and may
be removed by the central government.
The main objects of any statutory corporation are to advance the policies of the
government and to promote the public interest. Therefore, some statutes such as
the Tea Board Act and the Coffee Board Act, provide that if the corporations
formed the them fail to advance the government policies or the public interest, the
government shall have the power to dissolve it.
2. Power to Issue Directions
That a statutory corporation advances the policies of the government and public
interest may also be ensured by issuing of directions by the government to the
corporation. For this, there has to be a provision in the parent statute empowering
the government to issue directions to the corporation.
The power to issue directions may be general or specific. Sec. 34 of the Air
Corporations Act empowers the central government to issue directions to the two
corporations formed under it, and it is mandatory for the corporations to follow the
directions. The Delhi Transport Undertaking Act empowers the government to
issue specific directions to the DTU in the matter of wages and service conditions
of its employees.
3. Power to Control Finances
The most effective control over any body or institution is financial control. This
true in case of statutory corporations. Statutes establishing corporations provide
for various modes of financial control of the corporation by government.
In some cases the entire capital of the corporation is provided by the government.
For example, the entire capital of Life Insurance Corporation of India is provided
by the central government.
In some other cases, the parent statute may empower the government to control
raising or altering of the capital of the corporation, and of borrowing money by the
corporation. Statutes establishing Hindustan Steel Ltd., and Damodar Valley
Corporation include such provisions.
Some such statues may also provide for the audit of the finances of the
corporation by the Auditor-General or by an auditor appointed by the government.
The statute may also empower the government to call for the budget, accounts and
annual reports of the corporation.
4. Power to Institute Enquiries
Another mode of control by government over statutory corporations is power to

order enquiry into its functioning. This acts as a sufficient deterrent for the
corporation from deviating from the norms and Rules. The Delhi Transport
Undertaking Act includes such a provision.
2. LEGISLATIVE CONTROL
A statutory corporation is a creature of a statute. It owes its existence to

legislature. Therefore, legislature which created a statutory corporation may
reserve powers to control it.
In a way, the legislative control begins even before the corporation is formed. To
pass the parent statute a bill is introduced in the legislature. The need for the
corporation, its organisation, powers and functions, financial aspects, control over
such corporation, etc. will be discussed by the legislature.
Statutes establishing the Corporations often provide that their annual reports
should be submitted to the Government of India giving an account of the activities
and then laid before the legislature, i.e., its Houses.
Under the Insurance Corporation Act, 1956, besides the auditor’s report and
annual report, the report of the actuaries containing the result of an investigation
made by the actuaries into the financial condition of the business of the
Corporation should also be so laid.
The legislative control over the function of the statutory corporations is confined to
broad featured criticism. Day to day functioning is outside the purview of such
control. The member’s right to ask questions about the public undertakings and
general debates especially the budget debate provide the occasions for such
criticism.
This direct control over statutory corporations by legislature is not very effective
because the members of legislature lack expertise and technical skills necessary to
scrutinise the documents presented to the legislature by the statutory corporation.
The parliamentary control over public undertaking has been unsystematic,

haphazard and ineffective.
It operates through the instrumentalities of:
1. Question hour
2. Adjournment motions
3. Parliamentary debates
4. Discussions on reports
5. Parliamentary committees especially the Committee on Public Undertakings.
Control Through Committees

Effective control over statutory corporations is through Committees of Parliament.
Before 1964 the Estimates Committee and the Public Accounts Committee of the
Parliament exercised control over statutory corporations.
The Estimates Committee of the Lok Sabha often made suggestions with a view to
proper working to the Damodar Valley Corporation (DVC) and the Oil and Natural
Gas Commission (ONGC) and other Corporations.
In 1964, a Committee under the chairmanship of Shri V. K. Krishna Menon made

certain recommendations in respect of better control over statutory corporations.
Amongst other things it has suggested the appointment of a Committee of the Lok
Sabha by name ‘Committee on Public Undertakings’, for exercise of continuous
broad supervision.
Committee on Public Undertakings
Constitution was amended to make provision for the appointment of Committee on

Public Undertakings, and arts. 312-A and 312-B were inserted.
Art. 312-A provides for establishment and functions of the Committee. Art. 312-B
provides for the constitution of the Committee.
Constitution of the Committee
The Committee consists of 22 members comprising 15 members elected by Lok

Sabha every year from amongst its members according to the principle of
proportional representation by means of single transferable vote and 7 members
elected by Rajya Sabha in like manner and nominated by that House for being
associated with the Committee.
The system of election ensures that each party or group is represented on the
Committee in proportion to respective strength of the Houses.
A Minister is not eligible to be elected as a member of the Committee and if a

member, after his election to the Committee, is appointed a Minister, he ceases to
be a member of the Committee from the date of such appointment.
The Chairman of the Committee is appointed by the Speaker from amongst

members of the Committee.
Functions of the Committee
According to art. 312-A the functions of the Committee are
(a) to examine the reports and accounts of the public undertakings specified in the
Fourth Schedule;
(b) to examine the reports, if any, of the Comptroller and Auditor-General on the public
undertakings;
(c) to examine, in the context of the autonomy and efficiency of the public undertakings,
whether the affairs of the public undertakings are being managed in accordance with
sound business principles and prudent commercial practices; and
(d) to exercise such other functions vested in the Committee on Public Accounts and the
Committee on Estimates in relation to the public undertakings specified in the Fourth
Schedule as are not covered by clauses (a), (b) and (c) above and as may be allotted to
the Committee by the Speaker from time to time.
Proviso to art. 312-A provides that the Committee shall not examine and investigate any
of the following, namely:
(i) matters of major Government policy as distinct from business or commercial

functions of the public undertakings;
(ii) matters of day-to-day administration; and
(iii) matters for the consideration of which machinery is established by any special
statute under which a particular public undertaking is established.
JUDICIAL CONTROL
A statutory corporation is an artificial person. As such, it may enter into contracts

in the same way as a natural person may. The corporation also employs its
servants. Thus, a statutory corporation may be sued for breach of contracts. It
may also be sued vicariously for the torts committed by its servants.
A statutory corporation is ‘State’ as defined by art. 12 of the Constitution. Thus, it

is amenable to the writ jurisdiction of the High Courts and the Supreme Court. As
a consequence, the acts of statutory corporations are subject to judicial review.
Further, fundamental rights may be enforced against a statutory corporation.
PUBLIC CONTROL
The very object of establishing a statutory corporation is to advance public interest

by undertaking programmes for the benefit of the public. They cannot ignore the
public interest while discharging their functions. They are directly responsible to
the public in their functioning.
There are four channels through which the public control over statutory
corporations is exercised:
(a) Control through Mass Media
Mass media plays a very important role in any democracy. It not only provides
information to the people, it mobilises public opinion. It creates an effective barrier
against political interference, bureaucratic red-tapism, corruption, and inefficiency
It often motivates NGOs, social servants, action groups, etc. to raise voice against
malpractices by the persons and institutions in authority. As a consequence, mass
media makes them to be within their limits act in the larger interest of the public.
(b) Control through Consumer Councils

Under the Consumer Protection Act, 1986 The Consumer Councils are created to
advise and assist the consumers in seeking and enforcing their rights. We have
Consumer Protection Councils both at Centre level and State level, that is one
Central Council and many State Councils.
These councils work towards the promotion and protection of consumers. They
make investigations and give publicity to the matters concerning consumer
interests, take steps towards furthering consumer education and protecting
consumer from exploitation, advice the Government in the matter of policy
formulation keeping consumer interest as pivotal concern, etc. Although their
suggestions are recommendatory in nature, but they have significant impact in
policy making.
While deciding about the composition of these councils, the State keeps in mind
that it should have proper representation from all the possible areas affecting
consumer interests. Again the rules as to when should these councils meet, what
should they aim at, how they conduct their business are framed by the
Government with a view to balance the efficacy and practicability of its business.
Working Groups
Rule 3 of the Consumer Protection Rules establishes ‘Working Groups’ for the
purpose of monitoring the implementation of the recommendations of the Central
Council and to suggest the working of the Council. The Central Government may
constitute from amongst the members of the Council, a Standing Working Group,
under the chairmanship of the Member Secretary of the Council.
(c) Control through Consumer Forums

Consumer Protection Act, 1986 has established Consumer Grievance Redressal
Forums at district level and Consumer Grievance Redressal Commissions at the
state and national levels. These forums provide speedier, informal and inexpensive
redressal of the grievances of consumers.
The Act was amended in 1993 and invested these forums with power to pass
‘cease and desist’ orders and also power to order ‘recall’ of goods.
These forums have been effective in enforcing the rights of the consumers. Most of
the service providers are careful to avoid being dragged before these forums. Thus,
the existence of these forums, in a way, acts as a preventive measure, thus
making them even more effective by saving consumers’ time, money and labour.
(d) Control by Way of Interest Representation or Consultation
In many countries there is public participation in the management and policy-

making bodies of public undertakings. Representatives of the affected interest will
be nominated, elected or appointed in these bodies to monitor their functioning
and to prevent them from acting against the public interest.
In India, however, there is no such mechanism adopted. On the other hand, in

some cases, there is a consultative mechanism. For example, under the Road
Transport Corporations Act, 1950, Road Transport Corporations are established.
Under sec. 17 of the Act, Government may establish one or more Advisory
Councils for the purpose of advising the Corporation in the matters specified in
the notification.
Under the Electricity Boards Acts, public hearing is mandatory before revising the
electricity tariffs.
LIABILITIES OF STATUTORY CORPORATIONS
A statutory corporation is liable in two capacities, one, as State, and the other, as
an individual. It is a State under art. 12 of the Constitution, while it is also a legal
person having the same rights and duties as an individual.
Liabilities of Statutory
Corporations
Private Law Liability Public Law Liability

Enforced in Ordinary Enforced in HCs and SC
Courts through Suits through Writs
Civil Liability Criminal Liability
Contractual Tortuous Tax

Liability Liability Liability
CONTRACTUAL LIABILITY
Though a statutory corporation is State, it is not government. Therefore, art. 299

is not applicable to contracts made by them. Therefore, their liability is the same
as any individual under the India Contract Act, 1872 and other applicable laws.
Contracts made by statutory corporations now fall under two classes:
1. ordinary contracts; and
2. statutory contracts.
Statutory contracts are contracts made in order to discharge statutory functions

and duties of the corporation. Therefore, the breach of such a contract amounts to
breach of statutory duty and a writ of mandamus may be issued to the corporation
Lotus Hotel vs. Gujrat State Finance Corporation
Where a statutory body established to advance loans enters into a contract for the
purpose of giving loans it is not only entering into a contract but also is
discharging its statutory duty. Therefore, a breach of that contract is also a breach
of its statutory duty. Hence, mandamus may be issued to enforce that duty.
Ordinary contracts are contracts which are independent of any statutory duty.
Their breach does not amount to breach of any statutory duty. Therefore, no writ
lies to enforce such contracts. They may be enforced in ordinary Courts by
instituting suit against the corporation.
Further, as the statutory corporations are established for the benefit of public,
their functioning should be beneficial to the public. Their powers under contracts
or otherwise are, therefore, held to be subject to their duty to act in the interest of
the public.
Kartik Enterprise vs. Orissa State Electricity Board
The OSEB increased electricity tariffs for various categories of consumers. The
Petitioner challenged the revision of tariffs on, inter alia, a unique ground, namely,
that the statute casts an obligation on the Board to operate efficiently and
economically. Without discharging this obligation, it cannot increase the tariffs.
This contention was accepted by the Court. The Court observed that, “without the
corresponding obligation to act efficiently and economically. The Board is not
intended to exercise its power to adjust its tariff. We cannot accept a situation
where the State or any of its instrumentalities would have power without any
correlative duty to exercise such powers ...”
TORTUOUS LIABILITY
A corporation has to appoint its employees without which it cannot function. If the
employees of the corporation commit any tort against any other person, the
corporation is vicariously liable.
Many statutory corporations undertake hazardous activities. As a statutory

corporation is State, it is assumed that it acts in the public interest, and
discharges its duties more efficiently in the public interest, than any private
enterprise would. Thus, their duty to take care is very high.
M. C. Mehta vs. Union of India
The Supreme Court of India went a step ahead of the House of Lords. It held that
the exceptions to the rule of strict liability under Rylands vs. Fletcher do not suit
the Indian situation, and hence, are not applicable to a case where an industry has
undertaken hazardous activities. It was held that in such cases the rule applicable
is not one of ‘strict liability’, but one of ‘absolute liability’.
In such cases, the compensation awarded will be very high running in several
crores of rupees, and the corporations often plead incapacity to pay such a high
compensation. In such cases, the Court has observed that where a company
undertakes or a statutory corporation is permitted to undertake a hazardous or
inherently dangerous activity for profit, the law must presume that such
permission is conditional on the company or corporation absorbing the cost of any
accident as an appropriate item of overheads. To balance the private and public
rights in such cases, the Court observed that the compensation must be correlated
to the magnitude and capacity of the company or corporation, because such
compensation must have a deterrent effect.
TAX LIABILITY
A Statutory corporation is bound by the laws in the same way as any other person.
Therefore, it is liable to pay tax in the same way as any private individual or
company. A company is an assessee under the Income Tax Act, and a dealer under
the Goods and Service Tax Act.
Only where the relevant tax law expressly exempts the corporation from tax
liability under that law, it is not liable to pay the tax.
As the tax is paid by the corporation to the government, there is implied exemption
to pay tax.
CRIMINAL LIABILITY
Once it was believed that a legal person is not liable under criminal law. This was
because of two reasons:
1. Mens ea, being necessary element to constitute a crime. A legal person, having
no mind, was incapable of having mens rea necessary to constitute a crime.
2. Punishments for crimes were predominantly of corporeal nature, i.e.,

imprisonment or death sentence. These punishments could not be inflicted
upon legal persons which do not have physical existence.
But today, many offences are of strict liability, not requiring mens rea as necessary
ingredient of the offence. Most of the financial offences are offences of strict
liability. And, the punishment for such offences may be fine. Therefore, it is quite
natural that today a corporation may be held liable under criminal law.
Further, if a legal person acts through human agents, those human agents are
responsible for the acts and omissions of the corporation, and hence may be
punished for the offences committed by the legal person, along with the legal
person.
PUBLIC LAW LIABILITY
A statutory corporation, being State, is amenable to the writ jurisdiction of the

High Courts and the Supreme Court. It may be held liable for violation of the
fundamental rights of the people.
Writ of mandamus lies against a statutory corporation to enforce its statutory

duties or statutory contracts, or to prevent it from committing breach of duties.
Writs of prohibition and certiorari lie against a statutory corporation to prevent it

from acting without or in excess of its jurisdiction.
Writ of quo warranto may lie against a person who occupies an office in a statutory
corporation, without proper qualifications.
CHAPTER XII
MALADMINISTRATION
• Maladministration
• Measures to Tackle with Maladministration
• Ombudsman
• Lok Ayukta and Lok Pal
• Central Vigilance Commission (CVC)
Maladministration means inefficient or dishonest administration. The definition of
maladministration is wide and can include: Delay. Incorrect action or failure to
take any action. The definition of maladministration can include:
1. Delay
2. Incorrect action or failure to take any action
3. Failure to follow procedures or the law
4. Failure to provide information
5. Inadequate record-keeping
6. Failure to investigate
7. Failure to reply
8. Misleading or inaccurate statements
9. Inadequate liaison
10. Inadequate consultation
11. Broken promises
It generally refers to corruption in administration. Corruption may defined as a

form of dishonesty undertaken by a person entrusted with a position of authority,
often to acquire personal benefit.
But, corruption is a wider term including any wrong actions and attitudes on the
part of an administrative authority. Bribery and misappropriation are only two of
the many forms of corruption. It may also involve practices that are not illegal. For
example, nepotism, arrogance and rudeness are very common forms of corruption
among administrative authorities.
MEASURES TO TACKLE WITH MALADMINISTRATION
There are several measures undertaken by the different countries in the world to
tackle maladministration, especially corruption. The most celebrated effort is the
office of ombudsman.
In India, Lokpal, Lokayukta and CVC are the notable efforts to fight against
corruption.
OMBUDSMAN
An ombudsman is a person who acts as a trusted intermediary between either the

state and its authorities, or an organization, and some internal or external
constituency, while representing not only but mostly the broad scope of
constituent interests.
An indigenous Danish, Norwegian and Swedish term, Ombudsman is

etymologically rooted in the Old Norse word umboðsmaðr, essentially meaning
"representative”. The term is used in a sense to mean “the grievance man.”
In its most frequent modern usage, an ombudsman is an official, usually

appointed by the government or by parliament but with a significant degree of
autonomy, who is charged with representing the interests of the public by
investigating and addressing complaints reported by individuals.
In different countries the ombudsmen may be called by different names.
OMBUSMAN IN INDIA
The Government of India has designated several ombudsmen (sometimes called

Chief Vigilance Officer (CVO)) for the redress of grievances and complaints from
individuals in the banking, insurance and other sectors being serviced by both
private and public bodies and corporations. The CVC (Central Vigilance
Commission) was set up on the recommendation of the Santhanam Committee
(1962–64).
Lokpal
In India, the Ombudsman is known as the Lokpal or Lokayukta. An Administrative

Reforms Commission (ARC) was set up on 5 January 1966 under the
Chairmanship of Shri Morarji Desai. It recommended a two-tier machinery: Lokpal
at the Centre (parliamentary commissioner, as in New Zealand) and one
Lokayukta each at the State level for redress of people's grievances.
However, the jurisdiction of the Lokpal did not extend to the judiciary (as in case
of New Zealand). The central Government introduced the first Lokpal Bill, Lokpal
and Lokayuktas Bill in 1968, and further legislation was introduced in 2005. Final
bill, after all the amendments, has been passed in Rajya Sabha on 17 December
2013 and passed in Lok Sabha on 18 December 2013.
Maladministration 255
Lokayukta
The state-level Lokayukta institution has developed gradually. Orissa was the first
state to present a bill on establishment of Lokayukta in 1970, but Maharashtra
was the first to establish the institution, in 1972. Other states followed: Bihar
(1974), Uttar Pradesh (1977), Madhya Pradesh (1981), Andhra Pradesh (1983),
Himachal Pradesh (1983), Karnataka (1984), Assam (1986), Gujarat (1988), Delhi
(1995), Punjab (1996), Kerala (1998), Chhattishgarh (2002), Uttaranchal (2002),
West Bengal (2003) and Haryana (2004).
The structure of the Lokayukta is not uniform across all the states. Some states
have UpaLokayukta under the Lokayukta and in some states, the Lokayukta does
not have suo moto powers of instigating an enquiry.
KARNATAKA LOKAYUKTA
Problems of Redressal of Citizens Grievances is the subject on which the

Administrative Reforms Commission headed by Late Shri Morarji Desai, who later
became the Prime Minister of India gave its first report. It is that report which
recommended for the establishment of Lokpal and Lokayukta institutions at the
Central and State level respectively for redressal of citizens grievances by
investigating into administrative actions taken by or on behalf of Central
Government or State Government or certain public authorities. These institutions
were intended to serve as institutions independent of the Government concerned
and as institutions to supplement the judicial institutions headed by Chief
Justices or Judges of Supreme Court of India or High Court of the State.
The recommendation for appointment of Lokayuktas at the States level, as

indicated in that report, was made to improve the standards of Public
Administration, by looking into complaints against administrative actions,
including cases of corruption, favouritism and official indiscipline in
administrative machinery. It is the said recommendation which made the
Karnataka State Legislature to enact the Karnataka Lokayukta Act, 1984 for
investigating into allegations or grievances in respect of administrative actions
relatable to matters specified in List II or List III of the 7th Schedule to the
Constitution of India.
KARNATAKA LOKAYUKTA ACT, 1984
The Administrative Reforms Commission had recommended the setting up of the

institution of Lokayukta for the purpose of appointment of Lokayukta at the state's
level, to improve the standards of public administration, by looking into

complaints against the administrative actions, including cases of corruption,
favouritism and official indiscipline in administrative machinery.
One of the election promises in the election manifesto of the Janata Party was the
setting up of the Institution of the Lokayukta.
The Act provides for the appointment of a Lokayukta and one or more
Upalokayuktas to investigate and report on allegations or grievances relating to
the conduct of public servants.
The public servants who are covered by the Act include:
1. Chief Minister;
2. all other Ministers and Members of the State Legislature;
3. all officers of the State Government;
4. Chairman, Vice Chairman of local authorities, Statutory bodies or Corporations

established by or under any law of the State Legislature, including Co-operative
Societies;
5. Persons in the service of Local Authorities, Corporations owned or controlled by

the State Government, a company in which not less than 50% of the shares are
held by the State Government, Societies registered under the State Registration
Act, Co-operative Societies and Universities established by or under any law of
the Legislature.
Where, after investigation into the complaint, the Lokayukta considers that the
allegation against a public servant is prima facie true and makes a declaration that
the post held by him, and the declaration is accepted by the competent authority,
the public servant concerned, if he is a Chief Minister or any other Minister or
Member of State Legislature shall resign his office and if he is any other non-
official shall be deemed to have vacated his office, and, if an official, shall be
deemed to have been kept under suspension, with effect from the date of the
acceptance of the declaration.
If after investigation, the Lokayukta is satisfied that the public servant has
committed any criminal offence, he may initiate prosecution without reference to
any other authority. Any prior sanction required under any law for such
prosecution shall be deemed to have been granted.
The Vigilance Commission is abolished. But all inquiries and investigations and
other disciplinary proceedings pending before the Vigilance Commission will be
transferred to the Lokayukta.
Long Title
An act to make provision for the appointment and functions of certain authorities
for making enquiries into administrative action relatable to matters specified in
List II or List III of the Seventh Schedule to the Constitution, taken by or on behalf
of the Government of Karnataka or certain public authorities in the State of
Karnataka (including any omission or commissions in connection with or arising
out of such action) in certain cases and for matters connected therewith or
ancillary thereto.
Preamble
Whereas it is expedient to make provision for the appointment and functions of

certain authorities for making enquiries into administrative action relatable to
matters specified in List II or List III of the Seventh Schedule to the Constitution
taken by or on behalf of the Government of Karnataka or certain public authorities
in the State of Karnataka (including any Omission of commission in connection
with or arising out of such action) in certain cases and for matters connected
therewith or ancillary thereto.
Appointment of Lokayukta and Upalokayukta
For the purpose of conducting investigations and enquiries in accordance with the
provisions of this Act, a person to be known as the Lokayukta and one or more
persons to be known as the Upalokayukta or Upalokayuktas are appointed under
sec. 3 of the Act.
A person to be appointed as the Lokayukta shall be a person who has held
1. the office of a Judge of the Supreme Court, or
2. that of the Chief Justice of a High Court
A person to be appointed as an Upalokayukta shall be a person who has held the

office of the Judge of a High Court.
Lokayukta and Upalokayukta shall be appointed by the Governor on the advice

tendered by the Chief Minister in consultation with
1. the Chief Justice of the High Court of Karnataka,
2. the Chairman, Karnataka Legislative Council,
3. the Speaker, Karnataka Legislative Assembly,
4. the Leader of the Opposition in the Karnataka Legislative Council, and
5. the Leader of the Opposition in the Karnataka Legislative Assembly.
A person appointed as the Lokayukta or an Upalokayukta shall, before entering

upon his office, make and subscribe before the Governor, or some person
appointed in that behalf of him, an oath or affirmation in the form set out for the
purpose in the First Schedule to the Act.
Conditions of Service
The Lokayukta or Upalokayukta shall not be a member of the Parliament or be a

member of the Legislature of any State and shall not hold any office or trust of
profit or be connected with any political party or carry on any business or practice
any profession.
Salary and allowances of the Lokayukta and the Upalokayukta shall be equal to
that of the Chief Justice of a High Court and that of a Judge of the High Court
respectively. No dearness allowance shall be paid to them.
On ceasing to hold office, the Lokayukta or an Upalokayukta shall be ineligible for

further employment to any office of profit under the Government of Karnataka or
in any authority, corporation, company, society or university referred to in sec.
2(12)(g).
Tenure of Office
A person appointed as the Lokayukta or Upalokayukta shall hold office for a term
of five years from the date on which he enters upon his office.
The Lokayukta or an Upalokayukta may, by writing under his hand addressed to

the Governor, resign his office.
The Lokayukta or an Upalokayukta may be removed from office by an order of the

Governor.
Matters which may be Investigated by the Lokayukta
Lokayukta may investigate any action which is taken by or with the general or
specific approval of the authorities listed in sec. 7(1), and Upalokayukta may
investigate any action which is taken by or with the general or specific approval of
the authorities listed in sec. 7(2).
Where two or more Upalokayuktas are appointed under this Act, the Lokayukta
may, by general or special order, assign to each of them matters which may be
investigated by them under this Act. However, no investigation made by an
Upalokayukta under this Act, and no action taken or things done by him in
respect of such investigation shall be open to question on the ground only that
such investigation relates to a matter which is not assigned to him by such order.
When the office of an Upalokayukta is vacant by reason of his death, resignation,

retirement, removal or otherwise or when an Upalokayukta is unable to discharge
his functions owing to absence, illness or any other cause, his function may be
discharged by the other Upalokayukta, if any and if there is no other
Upalokayukta by the Lokayukta.
Matters Not Subject to Investigation
The Lokayukta or an Upalokayukta shall not conduct any investigation under this
Act in the case of a complaint involving a grievance in respect of any action,
1. if such action relates to any matter specified in the Second Schedule to the Act;
or
2. if the complainant has or had, any remedy by way of appeal, revision, review or
other proceedings before any tribunal, Court officer or other authority and has
not availed of the same.
The Lokayukta or an Upalokayukta shall not investigate,
1. any action in respect of which a formal and public enquiry has been ordered
with the prior concurrence of the Lokayukta or an Upalokayukta, as the case
may be;
2. any action in respect of a matter which has been referred for inquiry, under the
Commission of Inquiry Act, 1952 with the prior concurrence of the Lokayukta
or an Upalokayukta, as the case may be;
3. any complaint involving a grievance made after the expiry of a period of six
months from the date on which the action complained against become known
to the complainant; or
4. any complaint involving an allegation made after the expiry of five years from
the date on which the action complained against is alleged to have taken place:
However, he may condone the delay in lodging a complaint if the complainant

satisfies that he had sufficient cause for not making the complaint within the
period specified above.
Lokayukta or an Upalokayukta shall not question any administrative action

involving the exercise of a discretion except where he is satisfied that the elements
involved in the exercise of the discretion are absent to such an extent that the
discretion can prima facie be regarded as having been improperly exercised.
Procedure for Making Complainant and Investigation
Any person may make a complaint under the Act to the Lokayukta or an
Upalokayukta. In case of a grievance, if the person aggrieved is dead or for any
reason, unable to act for himself, the complaint may be made or if it is already
made, may be prosecuted by his legal representatives or by any other person who
is authorized by him in writing in this behalf.
Lokayukta may also initiate an investigation suo motu, by recording his opinion to
initiate the investigation. A copy of the opinion shall be forwarded to the public
servant and the Competent Authority concerned.
Every complaint shall be made in the form of a statement supported by an

affidavit and in such forms and in such manner as may be prescribed.
The Lokayukta or an Upalokayukta shall make a preliminary inquiry to find out

whether it is a fit case to conduct any investigation. If he proposes to conduct
enquiry, he shall forward a copy of the complaint to the public servant and the
Competent Authority concerned.
The Lokayukta or an Upalokayukta may make such order as to the safe custody of
documents relevant to the investigation, as he deems fit.
Investigation may be held either in public or in camera, as the Lokayukta or the

Upalokayukta, as the case may be, considers appropriate in the circumstances of
the case.
The Lokayukta or the Upalokayukta may, in his discretion, refuse to investigate or

cease to investigate any complaint involving a grievance or an allegation, if in his
opinion,
1. the complaint is frivolous or vexatious or is not made in good faith;
2. There are no sufficient grounds for investigating or, as the case may be, for
continuing the investigation; or
3. Other remedies are available to the complainant and in the circumstances of

the case it would be more proper for the complainant to avail such remedies.
In any case where the Lokayukta or an Upalokayukta decides not to entertain a

complaint or to discontinue any investigation in respect of a complaint he shall
record his reasons therefor and communicate the same to the complainant and
the public servant concerned.
For the purpose of investigation, the Lokayukta or an Upalokayukta may
1. issue summonses to the witnesses;
2. call for documents;
3. record evidence.
Reports of Lokayukta
If, after investigation the Lokayukta or an Upalokayukta is satisfied that such

action has resulted in injustice or undue hardship to the complainant or to any
other person, he shall, by a report in writing, recommend to the competent
authority concerned that such injustice or hardship shall be remedied or
redressed in such manner and within such time as may be specified in the report.
The competent authority to whom a report is sent shall, within one month of the
expiry of the period specified in the report, intimate or cause to be intimated to or
the Lokayukta the Upalokayukta the action taken on the report.
If, after investigation the Lokayukta or an Upalokayukta is satisfied that such

allegation is substantiated either wholly or partly, he shall by report in writing
communicate his findings and recommendations along with the relevant
documents, materials and other evidence to the competent authority.
The Competent authority shall examine the report and within three months of the
date of receipt of the report, intimate or cause to be intimated to the Lokayukta or
the Upalokayukta the action taken or proposed to be taken on the basis of the
report.
If the Lokayukta or the Upalokayukta is satisfied with the action taken or

proposed to be taken on his recommendations or findings, he shall close the case
under information to the complainant, the public servant and the competent
authority concerned.
But where he is not so satisfied and if he considers that the case so deserves, he
may make a special report upon the case to the Governor and also inform the
Competent Authority concerned and the Complainant.
The Lokayukta shall present annually a consolidated report on the performance of

his functions and that of the Upalokayukta under this Act to the Governor. The
Governor shall cause a copy thereof together with an explanatory memorandum to
be laid before each House of the State Legislature.
Vacating Office Under Direction by Lokayukta
Where after investigation into a complaint the Lokayukta or an Upalokayukta is

satisfied that the complaint involving an allegation against the public servant is
substantiated and that the public servant concerned should not continue to hold
the post held by him, the Lokayukta or the Upalokayukta shall make a declaration
to that effect in his report.
Where the competent authority is the Governor, State Government or the Chief
Minister, it may either accept or reject the declaration after giving an opportunity
of being heard. In other cases, the competent authority shall send a copy of such
report to the State Government, which may either accept or reject the declaration.
If it is not rejected within a period of three months from the date of receipt of the
report, or the copy of the report, as the case may be, it shall be deemed to have
been accepted on the expiry of the said period of three months.
If the declaration so made is accepted or is deemed to have been accepted, the fact
of such acceptance or the deemed acceptance shall immediately be intimated by
Registered post by the Governor, the State Government or the Chief Minister if any
of them is the competent authority and the State Government in other cases.
Initiation of Prosecution
If after investigation into any complaint the Lokayukta or an Upalokayukta is

satisfied that the public servant has committed any offence and should be
prosecuted in a court of law for such offence, he may pass an order to that effect.
If prior sanction of any authority is required for such prosecution, such sanction
shall be deemed to have been granted by the appropriate authority on the date of
such order.
Secrecy of Information
Any information obtained by the Lokayukta or an Upalokayukta or members of his

staff in the course of or for the purpose of any investigation under this Act and any
evidence recorded or collected in connection with such information, shall be
treated as confidential and no court shall be entitled to compel the Lokayukta or
the Upalokayukta or any public servant to give evidence relating to such
information or produce the evidence so recorded or collected.
LOKPAL: LESSONS FROM KARNATAKA
The best case for a Lokpal is to show that the existing Lokayuktas work. And even
if they have not performed satisfactorily, an assessment of their performance
should inform the design of Lokpal.
An analysis of the cases handled by the Karnataka Lokayukta during 1995-2011

using data obtained through the RTI Act provides such an opportunity. Lokayukta
can investigate corruption cases either by traps initiated in response to
complaints, or raids conducted on the basis of information collected by the
Lokayukta police.
After a raid or trap, the Lokayukta police investigates the case, and if it is unable
to find sufficient evidence to prosecute, then it is closed. Otherwise, a request is
made to the competent authority to sanction prosecution. If the sanction is
granted, the charge sheet is filed for trial.
A section of the civil society is demanding a stringent law to empower Lokpal to

pursue cases of corruption on its own. The Karnataka Lokayukta had such power.
However, it carried out only 355 suo motu raids, whereas it responded to over
2,259 citizen complaints.
Moreover, the share of raid cases has been decreasing over the years. A
comparison of raid and trap cases suggests that one of the most active Lokayuktas
is, in fact, primarily driven by citizen complaints. This, in turn, suggests that the
institutional incentives for suo motu action seem to lie elsewhere.
IMPACT ON PERFORMANCE
Leadership of the Lokayukta is believed to have a significant impact on

performance. One way of judging the performance of incumbents is the number of
new cases filed during their tenure. About 65 per cent of the cases in our data
(consisting of four Lokayuktas) were initiated during the tenure of Lokayukta
2006-11.
Another measure is the number of cases against officials belonging to the highest
cadres. Two-thirds of the cases against such officials were initiated during the
tenure of the same Lokayukta 2006-11.
A third of the cases against these officials were initiated during President's rule,
alerting us to a possible nexus between politicians and higher officials. However, if
conviction is the yardstick of performance, then the tenure of the Lokayukta 2001-
06 stands out, as two-thirds of the cases in which convictions were secured were
either initiated or concluded during this period.
While the above measures give a glimpse of how leadership affects the
performance, an important measure of impact of individual styles on institutional
performance is the ratio of trap to raid cases filed. The tenure of Lokayukta 2001-
06 had an excessive focus on traps.
PETTY CORRUPTION
Given that Lokayuktas are understaffed and underfunded, a department-wise

analysis of data maps both the focus of the Lokayukta's work as well as loci of
corruption. More than 80 per cent of the cases are related to four essential
functions of the government: Local governance, administration (taluk/district
office, police, court, tax, land, revenue), welfare, and regulation. Hence,
privatisation will not have a major impact on the level of corruption because the
bulk of the corruption can be traced to the essential functions of the state.
The question of inclusion of petty officials within the jurisdiction of Lokpal is a

contentious issue. Data suggest that about 40 per cent of the officials against
whom Lokayukta has proceeded are petty officials. The highest-cadre officials such
as IAS, and members of legislature, account for less than 1 per cent of all the
cases. Moreover, given that the agency is citizen-complaint driven, it is natural
that petty corruption, which directly affects people, would continue to account for
the bulk of the agency's workload.
WHAT THE DATA TELL US
Of the 3,097 cases investigated, trials could be completed only in 4 per cent cases,
leading to a mere 16 convictions. This conviction rate is lower than the rate of
similar convictions in India, of 34 to 40 per cent.
Why has one of the most active Lokayuktas failed to secure convictions? Given the
poor public image of the government and bureaucracy, it is tempting to believe
that in most cases, either sanction for prosecution was not given or the agency
failed to complete investigations.
But the data tell a different story. In 80.43 (55.68) per cent of the trap (raid) cases,
investigation has been completed. The average age of a trap (raid) case pending
investigation is 1.05 (2.11) years.
Of the cases that have been found fit for filing of charges, sanction for prosecution
was denied in only two cases. Of all the trap (raid) cases in which sanction was
granted, charge sheets were filed in 96.29 (93.55) per cent cases. Trap (raid) cases
in which charge sheets are pending are on an average 2.53 (3.40) years old.
The bottleneck lies after this stage. Of the trap (raid) cases in which charge sheets
have been filed, 95.68 (97.24) per cent are under trial.
The average age of the trap (raid) cases under trial is 5.08 (7.95) years. Further, of
all trap (raid) cases investigated, only 15 (1) have resulted in convictions. The
average age of cases at the time of conviction was about 4.2 years.
Past performance of the Lokayukta affects its future. While cases initiated in the
last year positively affect cases filed in the current year, the stock of cases
accumulated in all previous years negatively affects cases filed.
Official demand depends on Lokayukta, seriousness of the government about

corruption, and stability of tenures. Citizen demand for prosecution depends on
awareness and empowerment.
Measures of better human development indices negatively impact the number of

cases initiated.
‘SIZE OF ECONOMY’ FACTOR
The size of economy has a U-shaped relationship with the level of corruption
measured by number of cases, suggesting that both the most and least developed
districts record more cases of corruption.
The former provide more opportunities of extraction whereas the latter receive
massive government aid that is easy to siphon off.
To conclude, tackling corruption requires a fundamental restructuring of the core

administrative functions of the government, and the criminal legal system, which
accounts for almost the entire delay in prosecution of corruption.
At present, the design of Lokayukta leaves a lot to the personality and presents an
incentive structure that does not support a sustained drive against corruption.
THE LOKPAL AND LOKAYUKTAS ACT, 2013
The historic Lokpal and Lokayuktas Act, 2013 was passed by Indian Parliament
paving the way for establishment of a Lokpal (Ombudsman) to fight corruption in
public offices and ensure accountability on the part of public officials, including
the Prime Minister, but with some safeguards.
Lokpal will consist of a chairperson and a maximum of eight members, of which

50% will be judicial members 50% members of Lokpal shall be from SC/ST/OBCs,
minorities and women.
Selection of chairperson and members of Lokpal through a selection committee

consisting of PM, Speaker of Lok Sabha, leader of opposition in Lok Sabha, Chief
Justice of India or a sitting Supreme Court judge nominated by CJI. Eminent
jurist to be nominated by President of India on basis of recommendations of the
first four members of the selection committee “through consensus”.
Lokpal’s jurisdiction will cover all categories of public servants. All entities (NGOs)
receiving donations from foreign source in the context of the Foreign Contribution
Regulation Act (FCRA) in excess of Rs 10 lakh per year are under the jurisdiction
of Lokpal. Centre will send Lokpal bill to states as a model bill. States have to set
up Lokayuktas through a state law within 365 days.
• Lokpal will have power of superintendence and direction over any central
investigation agency including CBI for cases referred to them by the
ombudsman.
• A high-powered committee chaired by the PM will recommend selection of

CBI director. The collegium will comprise PM, leader of opposition in Lok
Sabha and Chief Justice of India PM has been brought under purview of the
Lokpal, so also central ministers and senior officials.
• Directorate of prosecution will be under overall control of CBI director. At

present, it comes under the law ministry.
• Appointment of director of prosecution to be based on recommendation of

the Central Vigilance Commission.
• Director of prosecution will also have a fixed tenure of two years like CBI
chief.
• Transfer of CBI officers investigating cases referred by Lokpal with the

approval of watchdog.
• Bill incorporates provisions for attachment and confiscation of property

acquired by corrupt means, even while prosecution is pending.
• Bill lays down clear time-lines for preliminary enquiry and investigation and
trial. Provides for special courts Public servants will not present their view
before preliminary enquiry if the case requires 'element of surprise' like raids
and searches.
• Bill grants powers to Lokpal to sanction prosecution against public servants.
• CBI may appoint a panel of advocates with approval of Lokpal, CBI will not
have to depend on government advocates.
CENTRAL VIGILANCE COMMISSION (CVC)

Central Vigilance Commission (CVC) is an apex Indian governmental body created
in 1964 to address governmental corruption. It has the status of an autonomous
body, free of control from any executive authority, charged with
1. monitoring all vigilance activity under the Central Government of India, and
2. advising various authorities in central Government organizations in planning,

executing, reviewing and reforming their vigilance work.
It was set up by the Government of India in February, 1964 on the

recommendations of the Committee on Prevention of Corruption, headed by Shri
K. Santhanam, to advise and guide Central Government agencies in the field of
vigilance. Nittoor Srinivasa Rau, was selected as the first Chief Vigilance
Commissioner of India.
ROLE OF CVC
The CVC is not an investigating agency, and works through either the CBI or
through the Departmental Chief Vigilance Officers. The only investigation carried
out by the CVC is that of examining Civil Works of the Government which is done
through the Chief Technical Officer.
Corruption investigations against government officials can proceed only after the
government permits them. The CVC publishes a list of cases where permissions
are pending, some of which may be more than a year old. The CVC has also been
publishing a list of corrupt government officials against whom it has recommended
punitive action.
APPOINTMENT
The Central Vigilance Commissioner and the Vigilance Commissioners are

appointed by the President after obtaining the recommendation of a Committee
consisting of
1. The Prime Minister — Chairperson
2. The Home Minister — Member
3. The Leader of the Opposition in the Lok Sabha — Member
REMOVAL OF CVC
The Central Vigilance Commissioner or any Vigilance Commissioner can be

removed from his office only by order of the President on the ground of proved
misbehaviour or incapacity after the Supreme Court, on a reference made to it by
the President, has, on inquiry, reported that the Central Vigilance Commissioner
or any Vigilance Commissioner, as the case may be, ought to be removed.
The President may suspend from office, and if deem necessary prohibit also from
attending the office during inquiry, the Central Vigilance Commissioner or any
Vigilance Commissioner in respect of whom a reference has been made to the
Supreme Court until the President has passed orders on receipt of the report of
the Supreme Court on such reference.
The President may, by order, remove from office the Central Vigilance
Commissioner or any Vigilance Commissioner if the Central Vigilance
Commissioner or such Vigilance Commissioner, as the case may be:
1. is adjudged an insolvent; or
2. has been convicted of an offence which, in the opinion of the Central

Government, involves moral turpitude; or
3. engages during his term of office in any paid employment outside the duties of
his office; or
4. is, in the opinion of the President, unfit to continue in office by reason of

infirmity of mind or body; or
5. has acquired such financial or other interest as is likely to affect prejudicially

his functions as a Central Vigilance Commissioner or a Vigilance Commissioner
LIMITATIONS OF CVC
1. CVC is only an advisory body. Central Government Departments are free to

either accept or reject CVC's advice in corruption cases.
2. CVC does not have adequate resources compared with number of complaints
that it receives. It is a very small set up with a sanctioned staff strength of 299.
Whereas, it is supposed to check corruption in more than 1500 central
government departments and ministries.
3. CVC cannot direct CBI to initiate inquiries against any officer of the level of
Joint Secretary and above on its own. Such a permission has to be obtained
from the concerned department.
4. CVC does not have powers to register criminal case. It deals only with vigilance
or disciplinary cases.
5. CVC has supervisory powers over CBI. However, CVC does not have the power
to call for any file from CBI or to direct CBI to investigate any case in a
particular manner. CBI is under administrative control of Department of
Personnel and Training (DoPT). Which means that, the powers to appoint,
transfer, suspend CBI officers lie with DoPT.
6. Appointments to CVC are indirectly under the control of Govt of India, though
the leader of the Opposition (in Lok Sabha) is a member of the Committee to
select CVC and VCs. But the Committee considers candidates put up before it.
These candidates are decided by the Government.
As a result, although CVC is relatively independent in its functioning, it has

neither resources nor powers to inquire and take action on complaints of
corruption that may act as an effective deterrence against corruption.

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ADMINISTRATIVE LAW

Classification of Functions of the Executive................................................................20

II. Delegated Legislation.............................................................................................. 23

(d) Delegation to a Representative Body...................................................................36

G. Narayana Reddy vs. State of A. P.................................................................48

Continuance of Rules After Repeal of Parent Act..........................................................59

III. Quasi Legislation................................................................................................... 63

S. L. Sachdeva vs. UoI.....................................................................................73

IV. Natural Justice...................................................................................................... 77

Pre-conceived Notion Bias...........................................................................................83

(b) Right to Legal Representation (Right to Counsel).................................................94

Post-Decisional Hearing............................................................................................ 102

V. QUASI JUDICIAL FUNCTIONS................................................................................113

10. Official Bias......................................................................................................... 128

VI. PURELY ADMINISTRATIVE FUNCTIONS................................................................131

Art 19(1)(g) Freedom of Trade and Occupation...............................................138

(h) Exercise of Discretion Without Jurisdiction..............................................151

VII. STATE LIABILITY................................................................................................ 153

VIII. JUDICIAL REVIEW............................................................................................. 165

Doctrine of Public Accountability...............................................................................170

IX. GOVERNMENT PRIVILEGES.................................................................................199

X. SERVICES UNDER THE STATE..............................................................................207

Reasonable Opportunity of Being Heard................................................................221

XI. STATUTORY CORPORATIONS..............................................................................225

Classification of Statutory Corporations....................................................................237

Administrative Law is basically concerned with triple function of administrative

Unit II – Legislative Power of Administration

Unit III – Judicial Power of Administration

Unit IV – Administrative Discretion

Unit V – Control of Administrative Action

UNIT VI – Corporates and Public Undertakings

Administrative Law deals with complaints respecting Government action that

There is a two-fold analysis:

1. the legality of the specific law itself, and

2. the legality of particular acts purportedly authorized by the specific law.

DEFINITION OF ADMINISTRATIVE LAW

In the recent past, there is a significant growth of state activities, as a result of

“Administrative Law is made up of all these legal rules-either formally expressed by

(b) administrative bodies are sometimes permitted to exercise judicial powers;

KENNETH CULP DAVIS

K. C. Davis defines Administrative Law as

“the law concerning the powers and procedures of administrative agencies,

The merit of this definition is its emphasis on procedure followed by administrative

Davis, excludes judiciary and legislature from the definition of an administrative

SIR IVOR JENNINGS

“Administrative Law is the law relating to the administrative authorities”.

This definition is too simple and has two significant limitations:

Second, it ignores the distinction between Constitutional Law and Administrative

ALBERT VERNON DICEY

1. Administrative Law relates to that portion of a nation’s legal system which

PROF. SIR WILLIAM WADE

Further, the definition emphasises judicial control of administrative functions and

JAIN AND JAIN

1. The constitution, powers and functions of administrative agencies.

2. The limits of those powers.

3. Procedures to be followed by the administrative agencies in exercising those

DR. UPENDRA BAXI

On an analysis of the above definitions, it may be submitted that there is no

NATURE AND SCOPE OF ADMINISTRATIVE LAW

Administrative law is considered a branch of public law. As a body of law,