IMPORTANT TOPICS – ADMIN LAW

UNIT 1

 Definition of Admin Law

John Austin - Austin has defined “administrative law as one which determines the ends and
modes to which the sovereign power shall be exercised. According to him sovereign power
should be either exercised directly by the monarch or entrusted to subordinate political agents
holding a position of trust.”

Holland - He regards “Administrative law as “one of the six divisions of public law”

Bernard Schwartz - Bernard has defined “Administrative law to be the law applicable to those
administrative agencies which possess adjudicatory authority of a delegated legislation

Sir Ivor Jennings - “Administrative Law is the law relating to the administration. It
determines the organization, powers and duties of the administrative authorities

A.V. Dicey - “Administrative Law relates to that portion of a nation’s legal system which
determines the legal status and liabilities of all State officials”

Wade - “Administrative Law is the law relating to the control of governmental power.”

Garner - “Administrative Law may be described as those rules which are recognized by the
courts as law and which relate to and regulate the administration of Government.”

 Reasons for growth of Admin Law

1. Radical change in the philosophy of role of the State

- Government as a an enabler, facilitator, and regulator

2. Increasing urbanization

3. To meet emergency situations

4. Inadequacy of Judicial System (Tribunals is an alternative mechanism)

5. Inadequacy of Legislative Process (Delegated legislation is an alternative to LR)

6. Scope for experimentation

7. Avoidance of technicalities

8. Preventive Mechanism 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. AAs can take effective steps for the enforcement of preventive measures e.g. suspension,
revocation and cancellation licenses, destruction of contaminated articles etc.

 Rule of Law in India and England

It was discussed by ancient Greek philosophers such as Plato and Aristotle around 350 BC.
Plato wrote: “Where the law is subject to some other authority and has none of its own, the
collapse of the state, in my view, is not far off; but if law is the master of the government and
the government is its slave, then the situation is full of promise and men enjoy all the
blessings that the gods shower on a state”.

Aristotle also endorsed the concept of Rule of law by writing that “law should govern and
those who are in power should be servants of the laws.”

Rule of Law:

The term “Rule of Law” is derived from the French phrase ‘la principe de legalite’ (the
principle of legality) which refers to a government based on principles of law and not of men.
In this sense the concept of ‘la principe de legalite’ was opposed to arbitrary powers.

A.V. Dicey – Three Principles of Rule of Law

1. Supremacy of Law

2. Equality before Law

3. Predominance of Legal spirit

Supremacy of Law a) Supremacy of Law is the central and most important feature of
Common Law. b) Law is the absolute supreme and predominant as opposed to influence of
arbitrary power or discretionary power c) English men are ruled by the Rule of Law and Law
alone. d) A man can be punished by the Rule of Law and by nothing else. e) Wade says the
rule of law requires that the Government should be subject to the law, rather than the law
subject to the Government.

2. Equality before Law a) There must be equality before law or equal subjection of all classes
to the ordinary law. b) There is no need for extraordinary tribunals or special courts to deal
with cases of Government and its servants. c) Dicey accepted that administrative authorities
are exercising ‘judicial’ functions though they are not ‘courts’.

3. Predominance of Legal spirit a) Rights are the result of judicial decisions in England. b)
The rights are result of court judgments rather than from being enshrined in the Constitution
c) The Constitution is a consequence of the rights of the individuals. d) The Courts are the
guarantors of the liberty. e) Rights would be secured more adequately if they were
enforceable in courts rather than just being written in the Constitutional document. f) Mere
incorporation in a written constitution is of no use in the absence of effective remedies of
protection and enforcement.

Advantages: 1. It helped to make administrative authorities confine to their limits. 2. It

became a yard stick to test administrative actions. 3. It helped for the recognition and the
growth of the concept of administrative law.

Disadvantages:

1. Dicey thesis was not completely accepted even in his era. 2. Even at this time, there was a
long list of statutes which permitted the exercise of discretionary powers of the crown which
could not be called to the court. 3. Dicey instead of not just disallowing arbitrary power has
also insisted that administrative authorities should not be given discretionary powers. 4.
Dicey failed to distinguish between ‘arbitrary powers’ to ‘discretionary powers.’ 5. He
misunderstood the real nature of ‘droit administratif’ which was successful in France.

Rule of Law and the Indian Constitution

a) Preamble

b) Article 13- Any law is found in violation of any provision of the Constitution is declared
as invalid.

c) Article 13(1)- All laws in force in the territory of India immediately before the
commencement of the Constitution, in so far as they are inconsistent with the provision of
Part III, shall, to the extent of such inconsistency , be void.

d) Article 13(2) – State shall not make any law which takes away or abridges the fundamental
rights and any law made in contravention of this clause, shall, to the extent of the
contravention be void.

e) Article 14 –”Equality before law” implies the absence of any special privilege in favour of
any individual. It ensures that all are equal before the law. “Equal protection of law” implies
equal protection of all alike. In the same situation and under like circumstances. Article 14
forbids class legislation but it doesn’t forbid classification which rests upon reasonable
grounds of distinction

Cases – KB, Indira Gandhi v Raj Narain, Maneka Gandhi

In UK, Sir Edward coke is said to be the originator of this concept, when he said that the king
must be under the god and law and thus vindicated the supremacy of law over the pretensions
of the executives. Later, Prof. Albert Venn Dicey developed this concept. He was an
individualist. He wrote about the concept of rule of law at the end of the golden Victorian era
of laissez faire in England. That was the reason why Dicey’s concept of the rule of law
contemplated the absence of wide powers in the hands of governmental officials. According
to him, wherever there is discretion, there is room for arbitrariness.

In India, the concept of Rule of law can be traced to Upanishad. It provides that the law is the
king of kings. It is more powerful and rigid than the kings. There is nothing higher than law.
By its powers the weak shall prevail over the strong and justice shall triumph. Thus, in
monarchy, the concept of law developed to control the exercise of arbitrary powers of the
monarchs who claimed divine powers to rule. In democracy, the concept has assumed
different dimension and means that the holders of public powers must be able to justify
publicly that the exercise of power is legally valid and socially just.

The rule of law is one of the longest established common law fundamental principles of the
governance of the United Kingdom, dating to Magna Carta of 1215,
particularly jurisprudence following its late 13th century re-drafting. It as a minimum
subjects an otherwise absolute monarch (executive) and all free people within its
jurisdictions, primarily those of England and Wales, Scotland and Northern Ireland to legal
doctrines known as the general principles of law. It has evolved to work only alongside equal
application of the law to all free people 'equality before the law' and within the framework of
the constitutional monarchy supports the legal doctrine of parliamentary sovereignty. Exactly
what it entails beyond this and the way that different aspects of the rule of law principle are
applied, depends on the specific situation and era.

Preservation and Enforcement of Rule of Law

1. Article 141: The law declared by the Supreme Court shall be binding on all courts
except Supreme Court (Art.137 review of judgment or order of the SC itself) within the
territory of India.
2. Article 142: The SC, in the exercise of its jurisdiction may pass such decrees or make
such orders as is necessary for doing complete justice in any cause or matter pending
before it. Any decree so passed or order so made shall be enforceable throughout the
territory of India.
3. Article 144: All authorities ( civil or judicial)in the territory of India, shall act in aid of
the SC. The authorities which do not comply with its direction, shall be liable for
contempt of Court.
4. Articles 32, 136, 226 and 227.

 Theories of Admin Law

1. Red Light Theory According to this theory the primary object of AL is to control
governmental power. It is based on assumption that “every kind of power tends to corrupt and
absolute power tends to corrupt absolutely.” It has emerged from a fear of State absolutism.
State regulates and controls various activities of its subjects, there is a very possibility of
misuse or abuse of power. RLT seeks to protect private rights and individual interests. Its
objective is to keep government agencies and administrative authorities within the boundaries
of law through judicial control.

2. Green Light Theory This theory does not concede arbitrary, unrestricted, or absolute power
to administrative authorities. But whereas the RLT favors judicial control, the GLT puts
emphasis on the political process. Control of AAs under this theory is direct and internal
rather than indirect and external. The inbuilt mechanism with in GLT allows interventions by
the State in larger public interest issues ensuring rights of citizens and the well-being of
society as a whole. This can be achieved through active involvement, positive deliberation,
effective consultation, creative contribution, productive participation, decentralization of
power, freedom of information and such other actions of the administration.

3. Amber Light Theory Both the theories have their own merits and pitfalls. In most
legal systems, therefore, there is a combination of two theories. In other words, the right
path lies somewhere between the pure "Red” and “Green” light models, in an ALT. As
observed by Huddlestone, a new relationship has emerged between courts and those who
derive their authority from public law. It is a partnership based on a common goal, viz.
fostering highest standards a public administration.

 Difference between Constitutional and Admin Law

Both the constitutional and administrative law is a part of the public law in the modern State.
It is logically impossible to distinguish between administrative law from constitutional law
and all attempts to do so are artificial. Till recently, the subject of administrative law was dealt
with & discussed in the books of constitutional law and no separate & independent treatment
was given to it.

Many definitions of administrative law, was included in constitutional law. According to

Holland, the constitutional law describes the various organs of the government at rest while
administrative law describes them in motion. Therefore according to this view, the structure
of the legislative and executive comes within the preview of the constitutional law but their
functioning comes within the sphere of administrative law.

On one hand administrative law deals with the organization, function, powers and duties of
administrative authorities while constitutional law deals with the general principles relating to
the organization and powers of the various organs of the state and their mutual relationships
and relationship of these organs with the individuals.

In other words constitutional law deals with fundamental while administrative law deals with
details. It may also be pointed out that the constitutional law deals with the rights and
administrative law lays emphasis on public need. The countries which have written
constitutional law likewise India, the difference between constitutional law and
administrative law is not as nuclear as in England.

In such countries the source of constitutional law is constitution while the source of
administrative law may be statutes, statutory instruments, precedents and customs. India has a
written constitution while the constitutional law deals with the general principles relating to
the organization and power of the legislature, executive and the judiciary.
According to Mait Land, constitutional law deals with structure and the broader rules which
regulate the function while administrative law deals with the details of those functions. The
dividing line between the constitutional law and administrative law is a matter of convenience
because every researcher of administrative law has to study some constitutional law.

The importance of administrative law has not been adequately appreciated by governments,
both centre as well as the states. Indian administrative law has grown rather sporadically and
unsystematically.

Thus in India the administrative action can be tested on the following points:

1. The action must have been taken in accordance with the rules and regulations.

2. The rules and regulations should be in accordance with the relevant statute.
3. The action, the rules, regulations must in accordance with the provisions of the
constitution.

4. If the constitution is amended, the amendment of the constitution should be in

accordance or conformity with the basic structure of the constitution.
The separate existence of administrative law is at no point of time disputed; however,
if one draws two circles of the two branches of law, at a certain place they will
overlap depicting their relationship and this area may be termed as watershed in
administrative law. In India, in the watershed one can include the whole control
mechanism provided in the Constitution for the control of administrative authorities
i.e. Articles 32, 136, 226, 227, 300 and 311.

It may include the directives to the State under Part IV. It may also include the study
of those administrative agencies which are provided for by the Constitution itself
under Articles 261, 263, 280, 315, 323-A and 324. It may further include the study of
constitutional limitations on delegation of powers to the administrative authorities and
also those provisions of the Constitution which place fetters on administrative action
i.e. fundamental rights.

Today administrative law is recognized as a separate, independent branch of the legal

discipline. 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.

 Droit Administraf

Meaning: “Droit Administratif” can be defined as a body of rules which determine the
organisation and the duties of public administration which regulate the relations of the
administration with citizens of the State.
Droit Administratif includes three 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 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 in France.

 Henry VIII Clause

A Henry VIII clause refers to the provision in a primary Act which empowers the Executive
to make secondary legislation which are inconsistent or can amend, repeal with the primary
legislation/legislations.

. Exceptional delegation(also known as Henry VIII clause to indicate executive autocracy)

e.g. Art.372(2) of the Constitution – Power of Prez to amend and repeal the laws to make it
consistent with constitutional provisions.

Instances of exceptional delegation may be :

a) Power to legislate on matters of principle policy.

b) Power to amend Acts of Parliament of existing laws.

c) Power conferring such a wide discretion that it is almost impossible to know limits.

Power to make rules with out being challenged in a court of law.

A historical analysis of the Henry VIII Clause tells us that it was originally contained in the
Statute of Sewers. At the time, the clause vested in the Commissioner of Sewers (the
Executive), the powers to enact rules having the effect of legislation, to levy taxes and to
impose penalties for contravention. Later, the Statute of Proclamations provided for the King
(the Executive) to issue proclamations having the force of a statute. Both the statutes were in
prevalence during the reigns of an autocratic ruler, King Henry VIII. The King asserted his
powers in a purely authoritarian manner & modified the provisions as per his subjective
understanding. Resultantly, even at present, whenever such wide powers are conferred upon
the Executive, these are termed as the Henry VIII powers.

The Henry VIII clause is different from the situation where the Executive is conferred by the
Legislative with the authority to extend the statute already in operation in one area to another
area along with the power of modification which allows for making necessary adjustments to
the existing law to better suit the requirements of the new territory. This is because in such
cases, modifications are made to the fresh operation of the parent Act in the new area instead
of altering the original statute. However, under the Henry VIII clause, the Executive is armed
to modify the original statue. Further, the Henry VIII clause is also different from the clause
present in the parent legislation vesting the Executive with rule making powers in order to
give effect to the parent statute. Moreover, the delegation of legislative authority which takes
place by virtue of the Henry VIII clause needs to be distinguished from several other
instances of excessive delegated legislation. This is because sometimes it is mistakenly
presumed that any clause present in the parent statute, conferring upon the Executive,
unguided rule making powers is a Henry VIII clause; or that any and every instance of
excessive delegated legislation constitutes the Henry VIII clause.

For example, it has often been misunderstood in cases such as WB Electricity Board v Desh
Bandhu Ghosh that the conferment of arbitrary powers upon the Executive officials due to
the presence of a Regulation 34 giving them the ability to hire and fire with 3 months notice,
makes the Regulation the Henry VIII clause. It is necessary to note that Henry VIII clause is
neither equivalent to excessive delegation nor is it always an instance of excessive delegation;
though it may, as a clause, be more prone to being an instance of excessive delegation. Henry
VIII clause often exists in the form of Doubt or clause. The clause can be located across a
plethora of statutes in India, including in the Indian Constitution

 Theory of Separation of Power

1. The Doctrine of Separation of powers was originated by Aristotle and developed by John
Locke and Montesquieu.
2. Montesquieu - Theory of Separation of Powers (“The Spirit of the Laws”, 1748) 3. Wade
and Phillips: a) That the same persons should not form part of more than one of the organs of
the governments, e.g., Ministers should not be responsible to the Parliament. b) that one
organ of the government should not control or interfere with the exercise of its function by
another . c) that one organ of the government should not exercise the functions of another.

3. Lord Acton: ”Every power tends to corrupt and absolute power tends to corrupt
absolutely.”

4. Legislature +Executive + Judiciary in one person = Monarch, Autocracy, Tyranny.( Louis

XIV in France, Hitler, Saddam Hussein, Musharraf, Md. Gadhafi)

5. Blackstone: “If legislative, executive and judicial functions were given to one man, there
was an end of personal liberty.”

- Doctrine of Separation of Powers based on 4 principles

1. Exclusivity principle which suggests structural division in all the three organs of State,
as it is in the US.
 2. Functional principle which prohibits amalgamation and usurpation but not interaction
of all the organs of State.

3. Check and balance principle, meaning, thereby, that each organ of State may check the
other t keep it within constitutional bounds.

4. Mutuality principle which aims at creating concord not discord, cooperation not
confrontation, engagement not estrangement amongst different organs of State to create
a society of constitutional image, which is a free, equalitarian, inclusive and rule of law
society.

⮚Merits:

1. The Doctrine of Separation of Powers had tremendous impact on the development of

administrative law and functioningof the governments.

2. Madison: “ The accumulation of all powers, legislative, executive and judicial in the same
hands, whether of one, a few of many and whether hereditary, self-appointed or elective may
justly be pronounced the very of tyranny.”

3. The Constituent Assembly of France declared in 1789 that there would be nothing like a
Constitution in the country where the DSP was not accepted.

Defects:

1. There was no separation of powers under the British Constitution. At no point of time, this
doctrine was adopted in England.

2. Donoughmore Committee: “In the British Constitution there is no such thing as the
absolute separation of the legislative, executive and judicial powers.” 2. Prof.
Ulman:“England was not the classic home of separation of powers”.

3. Woodrow Wilson: “ The trouble with this theory is that Government is not a machine, but
a living thing. No living thing can have its organs offset against each other as checks, and
live.” 2. It is impossible to take certain actions if this theory is accepted in its entirety.

4. Justice Frankfurter : “ Enforcement of a rigid conception of separation of powers would

make modern Government impossible.”

5. The modern interpretation of the DSP means that discretion must be drawn between
‘essential’ and ‘incidental’ powers.

Theory of Separation of powers in U.S.A:

a) Article I – The legislative powers are vested in the Congress. b) Article II - The executive
powers are vested in the President. c) Article III - The judicial powers are vested in the
Judiciary.
b) Jaffe and Nathanson: “ The division of our Government into three great establishments is
an indisputable fact – writ large and clear in the basic documents.” b) Jefferson: “ The
concentration of legislative, executive and judicial powers in the same hands is precisely the
definition of despotic Government.”

Theory of separation of powers in England: As a matter of fact at no point of time was this
doctrine accepted in its strict sense un England. In reality the theory Integration of Powers
has been adopted in England.

Theory of Separation of powers in India:

a) Golak Nath v. State of Punjab (AIR 1967 SC 1643)

Subba Rao J. observed: “ The Constitution brings into existence different constitutional
entities, namely, the Union, the States and the Unions Territories. It creates three major
instruments of power, namely, the Legislature, the Executive and Judiciary. It demarcates
their jurisdiction minutely and expects them to exercise respective powers without
overstepping their limits. They should function within the spheres allotted to them.”

b) Ramjawaya Kapoor v. State of Punjab (AIR 1955 SC 549)

Mukherjea J.: “ The Indian Constitution has not indeed recognised the DSP in its absolute
rigidity but the functions of the different parts or branches of the Government have been
sufficiently differentiated and consequently it can very well be said that our constitution does
not contemplate assumption, by one organ or part of the State, of functions that essentially
belong to another.”

UNIT 2
 Judicial Control on Delegated Legislation

There are three kinds of Control given under Delegated Legislation:

 Parliamentary or Legislative Control

 Judicial Control
 Executive or Administrative Control

Judicial review upgraded the rule of law. The court has to see that the power delegated is
within the ambit of the constitution as prescribed. Judicial review is more effective because
courts do not recommend but it clearly strikes down the rule which is ultra vires in nature. As
per Section 13(3)(a) “Law” is defined under the Constitution of India which clearly indicate
that State should not make any law which abridge the right given in Part iii of the
Constitution. It is dependent on two basic grounds:
1. It is ultra vires to the Constitution of India, and
 2. It is ultra vires to the enabling Act.

 Substantive and Procedural Ultra-vires

1) Substantive ultra vires

If the delegated legislation involves the defects of substance or if the exercise of any power
will be limited by the substance of power i.e., what the administrative authority is empowered
to do, it is called substantive Ultra vires. It means that the delegated legislation goes beyond
the scope of authority conferred by the parent statute or by the constitution. It is the
fundamental principle of law that a public authority cannot act outside the powers i.e. ultra
vires.

A. Where parent Act is unconstitutional

⮚ NJAC Act, 2014 case - The SC Bench in a majority of 4:1 rejected the NJAC Act and the
99th Constitutional amendment as “unconstitutional and void.” This amendment which
sought to give politicians and civil society a final say in the appointment of judges to the
highest courts. But interestingly, the Bench admitted that all is not well even with the
collegiums system of “judges appointing judges”, and that the time is ripe to improve the old
system of judicial appointments.

B. Parent Act delegates essential legislative functions

⮚ L. Chandra Kumar v. U.O.I [A.I.R 1997 SC 1125]

C. DL is inconsistent with parent Act

⮚Indian Council of Legal Aid &Advice v. BCI (AIR 1995SC 691)

 Case Note:
 Civil - enrollment as advocates - Sections Advocates Act, 1961 and Articles 14, 19 (1)
and 21 of Constitution of India - validity of Rule added in Bar Council Rules
questioned - there is no dependable material in support of rationale on which Rule is
founded - Rule is discriminatory as it debars one group of persons who have crossed
age of 45 years - it is unreasonable and arbitrary as choice of age 45 years is made
keeping only certain group in mind ignoring vast majority of other persons who were in
service of Government or similar institutions at any point of time - impugned Rule
violates principle of equality under Article 14 - petition allowed.
D. DL is inconsistent with general law

⮚Hindustan Times v. State of U.P (AIR 2003 SC 250)

Constitution of India - Articles 14, 32 and 162 and 7th Schedule, List I, Entries 92 and 96, List
II, Entries 24, 55 and 56 and List III Entry 24--Contract Act, 1872--Section 23--Working
Journalists and other Newspaper Employees (Conditions of Service) Miscellaneous Provisions
Act, 1955--Working Journalists (Fixation of Rates and Wages) Act, 1958--State Government
issuing advertisements to newspapers --And directing to deduct 5% of amount from
advertisement bill of newspapers having circulation of over 25,000 towards pension fund of
working journalists?--Whether State Government has power to issue such directions? -- Held,
"no" -- Benefit sought to be given to working journalists--Indisputably covered by entry 92,
List I of 7th Schedule--No legislation in terms of Entry 24 of List II enacted--No fee on
advertisements published in newspapers can be imposed by State Legislature--Advertisements
play important role in matter of revenue of newspapers--In view of equality doctrine in Article
14, State cannot resort to theory of "take it or leave it"--Unjust conduct to contribute 5% or not
take advertisement--To attract wrath of Article 14 as also Section 23 of Contract Act--Hence,
impugned orders are unconstitutional and void.

The State cannot make any compulsory exaction from any citizen unless there exists a specific
provision of law operating in the field. In relation to a compulsory payment, it is well-settled,
there is no room for any intendment.

E. Delegated legislation is unconstitutional

⮚D.S. Nakara v. UOI (AIR 1983 SC 130)

- Labour and Services — Pension — Revision of non-contributory retirement pension
scheme — All pensioners have equal right to receive the benefits of liberalised pension
scheme — Pensioners form a class as a whole and cannot be micro-classified by an
arbitrary, unprincipled and unreasonable eligibility criterion for the purpose of grant of
revised pension — Criterion of date of enforcement of the revised scheme entitling
benefits of the revision to those retiring after that date while depriving the benefits to
those retiring prior to that date, held, violative of Article 14 — Such unconstitutional
part can be severed from the otherwise constitutional provision by reading down the
provision
F. DL is unreasonable

- Indian Council of Legal Aid &Advice v. BCI (AIR 1995 SC 691)

G. DL is Mala fide

- D.C.Wadhwa v. State of Bihar (AIR 1987 SC 579) – Continuous re promulgation of

Ordinance

H. DL is Arbitrary

- Hindustan Times v. State of U.P )(AIR 2003 SC 250)

- Air India v Nergesh Meerza

2) Procedural Ultra Vires

If the administrative authority fails to follow required procedure prescribed by parent act or
by the general rule, it is known as procedural ultra vires. To apply the doctrine of Ultra vires,
the first question for the courts to decide is whether the provision in the act prescribing the
procedure is mandatory or directory. Rules become invalid only in the case of non
compliance with the mandatory procedure. Non compliance of directory procedure does not
render them invalid. So, an absolute enactment must be obeyed or fulfilled exactly but it is
sufficient if directory enactment be obeyed or fulfilled substantially. Basically non
compliance of following procedure declares delegated legislation void.

In order to prevent non compliance there exists procedural control mechanism which consists
of the following components –

1. Drafting
- Expert Drafting
- Daiichi Sankyo Co Ltd v Jayaram Chigurupati- Object and reason clause should be
introduced in delegated legislation
2. Antenatal Publicity (Pre Publication)
- Sec.15 of the Central Tea Board Act, 1949, Sec.30(3) of the Chartered Accountants Act,
1949, Sec.43 of the Co-operative Societies Act, 1912.
- Attracts application of S. 23 of General Clauses Act
 1. That the rules be published in draft form in the Gazette;
2. That objections and suggestions be invited by a specific date mentioned therein; and
3. That those objections and suggestions be considered by the rule-making authority.
- It may, however, be noted that the procedure prescribed in the General Clauses Act,
1897 applies only to rules, regulations and bye-laws, at the administrative rule-making
appearing under any other governed by it.
3. Consultation with affected Person
a) Official consultation with a named body
 Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 – prior
consultation with RBI before making rules under the Act
b) Consultation with administrative boards
 Mines Act, 1901 sets up Administrative Boards and prior consultation is obligatory
before rules can be made
c) Consultation with a statutory board in charge of a particular subject
 Tea Board Act, 1949- Tea Board has to be consulted before making any rules
under the Act
d) Consultation with interested persons
 EIA 2020
e) Preparation of rules by the affected interests
 Mines Act allows owners of mines to draft rules themselves and they become
operative after assent from the government
4. Postnatal publicity (Post-publication)
 No Prescribed form of publicity
 If Parent Act prescribes then the same must be followed
 If silent must be published in a reasonable manner
 State of Orissa v Sridhar Kumar – Quashed publication in newspaper when made
in non local language
 Must be done in a recognizable or customary manner
 Must not be vague

In Prakash Shrestha Vs HMG, Prime Ministers and the office of the council of Ministers,
The petitioner challenged, Bye-Law 21 and Bye Law 22(1) of the Nepal Electricity Authority
Administrative personnel Bye Laws, 2050 as they were inconsistent with Art 11 of the
constitution, which guarantees the right to equality of all citizens. Court issued a directory
order in the name of the electricity authority to necessarily perform the task of publication for
the purpose of Bye Law 22 and 27(1) of the said Bye-Laws.

 Reasons for growth of Delegated Legislation

1. Ever since statutes came to be enacted by Parliament, there has been delegation of
legislative function.

2. In 15th and 16th centuries, there was frequent use of Henry VIII Clause. ( Heward–
“The New Despotism”.)

3. Statutes of Sewers of 1531 empowered Commissioners to make, remake, repeal and

amend laws, to pass decree and levy cess. Thus, the commissioners used to exercise all
three powers at a time.

4. Mutiny Act 1717 conferred on Crown, power to legislate for the Army without the aid
of Parliament.

5. In the 19th century delegated legislation became more common and considerably
increased due to social and economic reforms.

6. World War I (I914 – 1918) gave rise to the need of conferring of wide powers upon the
administration for the control and regulation of dangerous drugs, free arms, official secret,
etc. The trade and commerce and public safety also attracted governmental interference.

7. Another emergency arose due to the financial crisis of 1930′s(“The Great Depression”
and the remedy was again administrative legislation.)

8. The World War -II with all its evils was another crisis which necessitated the giving of
the wide powers to the administration for various purposes, e.g., food supplies, war
supplies, etc. A number of important rules and regulations were framed to deal with
diverse problems in a speedy and effective manner.
9. The two World Wars and the enormous scientific and technological progress together
with the industrial and social progress showed the fallacy (idea) of “Laissez Faire” and the
concept of “Social Welfare State” became firmly entrenched.

10.In the 20th century, to deal with this increased work of a different nature, there is a
consensus of opinion that delegated legislation is the product of the changed conditions of
the society and it is to fulfill the needs of a modern progressing society.
  Parliamentary Control

Under parliamentary democracy it is a function of the legislature to legislate, and it’s not only
the right but the duty of the legislature to look upon its agent, how they are working. It is a fact
that due to a delegation of power and general standards of control, the judicial control has
diminished and shrunk its area. In India “Parliamentary control” is an inherent constitutional
function because the executive is responsible to the legislature at two stages of control.

1. Initial stage

2. Direct and Indirect Control

In the Initial stage, it is to decide how much power is required to be delegated for completing
the particular task, and it also observed that delegation of power is valid or not.

Now, the second stage consists of two different parts.

1. Direct control

2. Indirect control
Direct control

Direct General Control

- Direct but general control over delegated legislation

(1) Through debate on the Act which contains delegation. Members may discuss anything
about delegation including necessity, extent, type of delegation, and the authority to
whom power is delegated;

(2) Through questions and notices. Any Member may ask questions on any aspect of
delegation of legislative powers, and if dissatisfied can give notice for discussion under
Rule 59 of the Procedure and Conduct of Business in Lok Sabha Rules;

(3) Through moving resolutions and notices in the House. Any Member may move a
resolution on motion if the matter regarding delegation of power is urgent and
immediate, and reply of the government is unsatisfactory;

(4) Through vote on grant. Whenever the budget demands of a ministry are presented, any
Member may propose a cut and thereby bring the exercise of rule-making power by that
ministry under discussion;

(5) Through a private Member's Bill seeking modifications in the parent Act, or through a
debate at the time of discussion on the address by the President to the joint session of
 Parliament, Members may discuss delegation. However, these methods are rarely used.

Laying is an important and essential aspect under direct control and it is laid down as per the
requirement which means that after making the rule it should be placed before the Parliament.
It includes three important part as per the degree of control needs to be exercised.

(1) Laying with no further direction— In this type of laying, the rules and regulations
come into effect as soon as they are laid. It is simply to inform the House about the
rules and regulations.

(2) Laying subject to negative resolution — In this process the rules come into effect as
soon as they are placed on the table of the House, but shall cease to have effect if
annulled by a resolution of the House.

(3) Laying subject to affirmative resolution— This technique may take two shapes:

a) That the rules shall have no effect or force unless approved by a resolution of
each House of Parliament; and
b) That the rules shall cease to have effect unless approved by an affirmative
resolution. In both these processes, it is the duty of the government to move a
resolution.

(4) Laying in draft subject to negative resolution— such a provision provides that when
any Act contains provision for this type of laying, the draft rules shall be placed on the
table of the House and shall come into force after 40 days from the date of laying
unless disapproved before that period.

(5) Laying in draft subject to an affirmative resolution— In this type of laying, the
instruments or draft rules shall have no effect unless approved by the House.

And “test of Mandatory” & “Test of Directory” are two main test.

Test of Mandatory – Where the laying demand is a condition pattern to guide the rule into
impact then in such a case laying need is mandatory.

Where the provision is mentioned that the rules should be drafted in a particular format then
it becomes mandatory to follow the format.

Test of Directory – Where the laying need is next to enforce the rule into operation then it
will be directory in nature.

Indirect control

This is a control exercised by Parliament and its committees. The Committee is called the
Committee on Subordinate Legislation. The main work of the committee is to examine

(1) Whether the rules are in accordance with the general object of the Act.
(2) Whether the rules contain any matter which could more properly be dealt with in the
Act.
(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 its publication or laying.
(8) Whether, for any reason, it requires further elucidation.
UNIT 3

Rule against Bias

⮚Natural Justice: There are two rules of Natural Justice.

I. The rule against bias (‘Nemo Debet Esse Judex in Propria Causa’), or "no man shall be a
judge in his own cause"), and

II. The right to a fair hearing (‘Audi Alteram Partem’) or "hear the other side").
a. Notice.
b. Right to Hearing

THE RULE AGAINST BIAS (‘Nemo Debet Esse Judex in Propria Causa’)
Based on three maxims:
a) “No man shall be a judge in his own cause.”
b) “Justice should not only be done but manifestly and undoubtedly be seen to be done”
c) Judges, like Caesar’s wife should be above suspicion.”

 Types of Bias

1. Personal Bias:

It arises out of the personal or professional relationship of friendship or hostility between the
authority and the parties. It’s the human nature that we try to give favorable decision to our
friends or relatives, whereas use the same as a weapon against the enemies.

a) A.K. Kraipak v. UOI (AIR 1970 SC 150)

- In this case, Naquishband, who was the acting Chief Conservator of Forests, was a
member of Selection Board and was also a candidate for selection to All India cadre of
the Forest Service. Though he did not take part in the deliberations of the Board when
his name was considered and approved, the SC held that

‘There was a real likelihood of a bias for the mere presence of the candidate on the Selection
Board may adversely influence the judgment of the other members’.
b) Mineral Development Corporation Ltd. v. State of Bihar (AIR 1960 SC 468)

- The petitioners were granted mining licence for 99 years in 1947. But in 1953, The
Secretary of Revenue Board, sent a notice to the petitioners to show cause within 15
days why their licence should not be cancelled for violation of Sections 10, 12 and 14
of the Bihar Mica Act, 1947. The petitioners submitted a written reply denying the
allegations. Two years later, the Govt. of Bihar issued notification cancelling the
licence under Sec. 25(1) (c) of the Act. The action of the Govt. was challenged on the
ground of personal bias. The SC quashed the order of the Govt. on the ground of
personal bias. The challenge of bias was based on the following facts –
a) Owner of the Mineral Development Corpn has opposed the minister in the 1952
elections
b) The minister has filed a suit against the owner under S. 500 of the IPC which was
transferred to the Bihar HC due to there existing political rivalry

c) G.N. Nayak v. Goa University (2002) 2 SCC 712

In this case, HOD, Marine Science Dept. appreciated the work of an Associate Professor
(Reader) in his confidential report. HOD also a member of the Departmental promotion
Committee to consider such Junior Faculty along with others for promotion. The DPC
recommended the Junior Faculty for promotion which was challenged on the ground of
personal bias actuated by an element of personal interest. The object of scrutiny, in this case,
is the selection of the appellant as Professor of Marine Science in the University of Goa. The
appellant's selection was challenged under Article 226 of the Constitution of India by the
respondent who was himself a candidate for selection to the post. The challenge was upheld
by the High Court. The SC held that unless preference is unreasonable and is based on self-
interest, it will not vitiate an administrative decision.

- There must exist real likelihood of bias/reasonable suspicion of bias

2. PECUNIARY BIAS:

Any financial interest howsoever small it may be is bound to vitiate the administrative action.
The judicial opinion is unanimous as to it.
a) J. Mohapatra & Co. v. State of Orissa (AIR 1984 SC 1572)

- The SC quashed the decision of the Textbooks' selection committee because some of
its members were also the authors of the books, which were considered for selection.
The Court concluded that withdrawal of person at the time of consideration of his
books is not sufficient as the element of quid pro quo with other members cannot be
eliminated.

3. BIAS AS TO SUBJECT MATTER:

- The situations where the deciding officer is directly or indirectly in the subject matter
of the case

a) Gullapalli Nageshwar Rao v. A.P.S.R.T.C (AIR 1959 SC 308)

- In this case the SC quashed the decision of the AP Govt. nationalizing road transport,
on the ground that the Secretary of APSRTC who gave hearing was interested in the
subject matter.

4. DEPARTMENTAL BIAS/INSTITUIONAL BIAS

The problem of departmental bias is something which is inherent in the administrative

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

a) Krishna Bus Service Pvt Ltd. v. State of Haryana (AIR 1985 SC 1651)

- In this case, private bus operators had alleged that the Gen. Manager of Haryana
Roadways who was rival in business in the State couldn’t be expected to discharge his
duties in a fair and reasonable manner and would be too lenient in inspecting the
vehicles belonging to his own Dept. The reason for quashing the notification according
to the SC was the conflict b/w the duty and the interest of the Dept. and consequential
erosion of public confidence in administrative justice.
5. POLICY NOTION BIAS:

⮚ T. Goivndraja Mudaliar v. State of T.N. (AIR 1973 SC 974)

- The T.N. Govt. decided in principle to nationalize road transport and appointed a
committee to frame the scheme. The Home Secretary was made a member of this
committee. Later on, the scheme of nationalization was finalized, published and
objections were heard by the Home Secretary. It was contended that the hearing was
vitiated by the rule against bias because the Secretary already made up his mind on the
question of nationalization, as he was a member of the committee which took the
policy decision. The SC rejected the challenge on the ground that the Secretary as
member of the committee did not finally determine any issue as to foreclose his mind.
He simply helped the Govt. in framing the scheme.

6. PRE- CONCEIVED NOTION BIAS:

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

law. On the one hand, no judge as a human being is expected to sit as a blank sheet of
paper, on the other hand, preconceived notions would vitiate a fair trial.

a) Kondala Rao v. APSRTC AIR 1961 SC 82

- In this case the SC didn’t quash the order of Minister, who had heard the objections of
private operators, nationalizing road transport on the ground that the same Minister had
presided over a meeting only a few days earlier in which nationalization was favored.
The Court rejected the contention on the ground that the decision of the committee was
not final and irrevocable but merely a policy decision

7. BIAS ON ACCOUNT OF OBSTINACY

- The word Obstinacy implies unreasonable and unwavering persistence and the deciding
officer would not take ‘no’ for an answer. This new category of bias was discovered in
a situation where a judge of the Calcutta High Court upheld his own judgment while
sitting in appeal against his own judgment. of course a direct violation of the rule that
no judge can sit in appeal against his own judgment is not possible, therefore, this rule
can only be violated indirectly. In this case in a fresh writ petition the judge validated
his own order in an earlier writ petition which had been overruled by the Division
 Bench. What applies to judicial process can be applied to administrative process as
well.

a) A.U. Kureshi v. High Court of Gujarat (2009) 11 SCC 84

- Service – Dismissal from service – Appellant a Judicial Officer – Appellant acquitted

accused under Gambling Act and returned the seized money – Complaint filed against
appellant – Charge sheet issued – Inquiry Officer submitted report stating charges
leveled against appellant proved – Show cause notice issued to appellant – Dissatisfied
with reply of appellant High Court recommended dismissal of appellant from service on
suggestion of Disciplinary Committee – Appellant dismissed from service – Special
Civil Application dismissed by High Court – Hence present appeal – Held, learned judge
who was part of Disciplinary Committee should not have heard the matter of judicial
side – Not proper for a member of the said Disciplinary Committee to decide on a
challenge against the same dismissal order while acting in a purely judicial capacity –
Failure to adhere to the principle that no judge should adjudicate a dispute which he or
she has dealt with in any capacity, other than a purely judicial one, creates an
apprehension of bias on the part of said judge – Impugned order of High Court set aside
– Matter remitted back for fresh consideration – Appeal allowed.

 Ranjit Thakur Case

Ranjit Thakur vs. Union of India (UOI) and Ors. (15.10.1987 - SC)
Case Note:

Service - Dismissal - High Court dismissed Petition of Appellant whereby summary Court
Martial had imposed punishment of dismissal from service on Appellant - Hence, this appeal

- Whether, Appellant was liable for dismissal from service - Held, judicial review was not
directed against decision, but was directed against decision making process - Question of
choice and quantum of punishment was within jurisdiction and discretion of Court-Martial -
But sentence had to suit offence and offender - Sentence should not be vindictive or unduly
harsh and should not be so disproportionate to offence as to shock conscience and amount in
itself to conclusive evidence of bias - Doctrine of proportionality, as part of concept of
judicial review, would ensure that even on aspect which was within exclusive province of
Court-Martial, if decision of Court even as to sentence was outrageous defiance of logic, then
 sentence would not be immune from correction - Punishment was strikingly disproportionate
- Therefore, order of High Court was liable to be set aside - Appeal allowed
Ratio Decidendi:
"Party shall not be dismissed from service if punishment imposed on him disproportionate as
to call for and justify interference"
- A decision which is a result of bias is “coram non judice”

 Speaking Orders in Administration disputes

- Reason is an essential requirement of rule of law

- Reasoned decisions/speaking orders
i. Reasons may be mandated by the Constitution
- In case of legislative silence a reasoned decision can be a constitutional decision
- Anumathi Sadhukhan v AK Chatterjee
- WB Rice Mills Control Order, 1949- allowed refusal /cancellation of license w/o giving
reasons. Held as violative of Art 19(1)(g) - Freedom of Trade violated
ii. Reasons may be mandated by law
- S. 31 of Arbitration and Conciliation Act, 1996 – S. 31 – Arbitral award must have reasons
iii. Reasons may be mandated by the PNJ
- Dev Dutta v UOI
- Transparency and Good Governance needed as part of PNJ
- When someone is prejudiced for any reason such reason should be communicated even if
ordinarily such information need not be communicated/disclosed
iv. Reasons may be mandated by the nature of functions which as administrative authority
exercises
- Mahabir Prasad v State of UP
- If a quasi Judicial order is subject to appeal or revision then such authority must give
reasons even if not mandated by any statute

• In India, unless there is specific requirement of giving reasons under the statute, it is not
mandatory for the administrative agencies to give reasons for their decisions.

• Reasons are the link between the order and mind of the maker. Any decision of the
administrative authority affecting the rights of the people without assigning any reason
tantamount to violation of principles of natural justice.
⮚ The requirement of stating the reasons cannot be under emphasized as its serves the
following purpose:

1) It ensures that the administrative authority will apply its mind and objectively look at the
facts and evidence of the case

2) It ensures that all the relevant factors have been considered and that the irrelevant factors
have been left out.

3) It satisfies the aggrieved party in the sense that his view point’s have been examined and
considered prior to reaching a conclusion.

4) The appellate authorities and courts are in a better position to consider the appeals on the
question of law.

• However, mere recording of reasons serves no purpose unless the same are communicated
either orally or in writing to the parties. In fact mere communication of reasons has no
meaning unless the corrective machinery is in place.

⮚ Tara Chand Khatri v. Municipal Corporation of Delhi (AIR 1977 SC 567)

• In this case, an assistant school teacher under the Delhi Municipal Corporation, was
dismissed on the ground of moral turpitude under the Delhi Municipal Corporation Act,
1957. The enquiry committee fully established the charge. The Asst. Education
Commissioner confirmed the report with out giving reasons. The SC held that where the
disciplinary authority disagrees with the report of the enquiry officer, it must state the reasons.

 Exceptions to Principles of Natural Justice

Exceptions to principles of natural justice:

1. Statutory Exception or neccesity: Disqualification on the ground of bias against a

person will not be applicable if he is the only person competent or authorised to
decide that matter or take that action.
⮚ Charan Lal Sahu v. Union of India ( AIR 1990) 1 SCC 613 • (The central Govt.
owned 22% in the UCC) ( Bhopal Gas Disaster (Processing of Claims) Act, 1985 was
challenged) ▪ The Court observed that even if the argument was correct the doctrine of
necessity would be applicable to the situation because if the Govt. did not represent
the whole class of gas victims no other sovereign body could represent and thus the
 PNJ were not attracted.

2. Emergency:
When there is a state of emergency, then chance of fair hearing may not be given but
afterwards it must be followed when emergency is over. In Swadeshi Cotton Mills v.
Union of India, The SC held that the word ‘immediate’ in Sec. 18-AA(1) of the
Industries(Development and Regulation) Act cannot stand in the way of the
application of rules of NJ.

3. Not practical:
When it is not really practical to give chance of hearing like when the number of
respondents is too many.
- R. Radhakrishnan v. Osmania University ( AIR 1974 AP 283)
- The entire MBA examination was cancelled by the University because of mass
copying. The SC sanctified the exclusion of Natural Justice on the ground of
administrative impracticability.

4. Confidentiality:
S.P. Gupta v. Union of India ( AIR 1981 SCC 87) ▪ The SC held that no opportunity
of being heard can be given to an Addl. Judge of a H.C. before his name is dropped
from being confirmed. Malak Singh v State of P&H – Surveillance register is
confidential

5. Purely administrative matters:

- Karnataka Public Service Commission v. B.M. Vijaya Shanker (AIR 1992)2 SCC
480)

- Cancellation of examination of candidate because he wrote roll no. on every page of

answer sheet.

- The SC held that the PNJ were not attracted, the Court observed that the rule hearing
be strictly construed in academic discipline and if this was ignored it would not only
be against the public interest but would also erode the social sense of fairness.

6. Interim preventive action

- If the action of the administrative authority is a suspension order in the nature of a

preventive action and not a final order, the application of the PNJ may be excluded.

- Abhay Kumar v. K. Srinivasan ( AIR 1981 Del 381)

 - The institution passed an order debarring the student from entering the premises of the
institution and attending classes till the pendency of criminal case against him for
stabbing a co-student.

7. Legislative action

- Legislative action, plenary or subordinate, is not subject to the rules of NJ because

these rules lay down a policy without reference to a particular individual.

- Ridge v. Baldwin (1964 AC 40) • Chief Constable dismissed from service on the
ground of negligence of his duties, by the area Watch Committee under Municipal
Corporation Act, 1882 which did not require any hearing

8. No infringement of rights of persons

- Where no right has been conferred on a person by any statute nor any such right
arises from common law the PNJ are not applicable.
- Andhra Steel Corpn v. A.P. State Electricity Board (AIR 1991)3 SCC 623
- The Court held that a concession can be withdrawn at any time without affording any
opportunity of hearing to affected persons except when the law requires otherwise or
the authority is bound by promissory estoppel.

9. Contractual agreement
- State of Gujarat v. M.P. Shah Charitable Trust (1994)3 SCC 552
- The SC held that the PNJ are not attracted in case of termination of an agreement in
any contractual field. Termination of an agreement/arrangement is neither a quasi –
judicial nor an administrative act, so that the duty to act judicially is not attracted.

10. Policy Decision

- BALCO Employees Union v. Union of India ( AIR 1994 SC 552)
- The employees challenged the Govt.’s policy decision regarding disinvestment in
Public Sector Undertakings.
- The SC held that in taking of a policy decision in economic matters at length, the PNJ
have no role to play. The SC held that unless the policy decision to disinvest is
capricious, arbitrary, illegal or uninformed, and is not contrary to law, the decision
cannot be challenged on the ground of violation of PNJ.
 11. Useless Formality
- Where on the admitted or undisputed facts only one conclusion is possible and under
the law only one possible penalty is permissible, the Court may not insist on the
observance of the PNJ because it would be futile to order its observance.
- D. Rai Bahadur Arcot Ramaswamy Mudaliar Edu’l Institution v. Edu’ Appellate
Trib’l(1999 SC 332)
- (The KK Private Educational Institutions(Discipline & Control Act,1975( Ss. 608)

 Audi Alteram Partem

This rule covers various stages through which administrative adjudication passes starting
from notice to final determination. ⮚ Right to fair hearing thus includes:

1. Duty to act judicially or the duty to act fairly

2. Right to notice
3. Right to know evidence against him
4. Right to present case and evidence/oral hearing
5. Right to rebut adverse evidence i. Right to cross examination ii. Right to legal
representation
6. No evidence should be taken at the back of other party
7. Report of the enquiry to be shown to the other party
8. Reasoned decisions/speaking orders i. Reasons may be mandated by the Constitution ii.
Reasons may be mandated by law iii. Reasons may be mandated by the PNJ iv. Reasons may
be mandated by the nature of functions which as administrative authority exercises
9. Institutional decision or who decides must hear
10. Rule against dictation
11. Financial incapacity to attend the enquiry
12. Decision post-haste (Administrative authority must not run rush decisions)

1. Duty to act judicially/the duty to act fairly

- Keshav Mills Co. Ltd. v. UOI (1973)1 SCC 380.

- In this case the Govt. on the basis of an enquiry committee, had taken over the management
of the Mills Co. which had been closed down without supplying the copy of the report to the
Mt. and affording an opportunity of hearing. The takeover was challenged on the ground of
 violation of PNJ.
- The SC though didn’t interfere with the order on the ground that no prejudice was caused to
the Mill Co. yet observed: ▪ “The only essential that has to be kept in mind in all cases that
the administrative authority concerned should act fairly, impartially and reasonably.”

2. Right to notice

• Hear the other side or both the sides must be heard or one should not be condemned
unheard. In other words, No person accused of any charge or likely to suffer any civil
consequences, must be adjudged unless and until he is aware of the proceedings together with
a notice thereon and an opportunity to present his case fully.

⮚ Union of India v. Narendra Singh (2008) 2 SCC 750

⮚ In this case, an erroneous promotion has been cancelled without following the process of
law. An opportunity of hearing may not be given if mistake or error is apparent on the face of
the record.
⮚ The SC made it clear that even if a mistake in the decision – making process is to be
corrected, which has adverse consequences for a person, he must be given notice.

3. Right to know evidence against him

⮚ Dhakeswari Cotton Mills Ltd. v. CIT(AIR 1955 SC 65)

⮚ In this case, the Appellant Income Tax Tribunal didn’t disclose the information supplied
to it by the IT Dept. The SC held that the assessee was not given a fair hearing. However, the
supply of adverse material, unless the law otherwise provides, in original form is not
necessary. It is sufficient if the summary of the contents of material is supplied, provided it is
not misleading.
⮚ A person may be allowed to inspect the file and take notes. Whatever mode is used, the
fundamental remains the same that nothing should be used against the person which has not
been brought to his notice.

4. Right to present case and evidence/oral hearing

⮚ R.B. Shreeram Durga Prasad v. Settlement Commission (IT&WT) AIR 1989 SC 1038
⮚ In this case the Commissioner only allowed the assessee an opportunity to make
submission on objections of the Commissioner of IT regarding settlement of assessment.
⮚ The SC held that mere opportunities to make submission is not enough but clear
 opportunity must be given to demonstrate that the reporting authority wasn’t justified in
making objections.

5. Right to rebut adverse evidence

i. Right to cross examination

ii. Right to legal representation

i. Right to cross examination

- Hira Nath Misra v. Principal, Rajendra Medical College(AIR 1973 SC 1260)

- The court disallowed the opportunity of cross-examination on the grounds of practicability.

- The SC rejected the contention of the appellants that they were not allowed to cross-examine
the girl students on the ground that if it was allowed no girl would come forward to give
evidence, and further that it would not be possible for the college authorities to protect the girl
students outside the college precincts. Where, however, witnesses depose orally before the
authority, the refusal to allow cross-examination would certainly amount to violation of
principles of natural justice. The right to cross-examine is an important part of the principle of
fair hearing but whether the same should be allowed in administrative matters mainly depends
on the facts and circumstances of the case.

ii. Right to legal representation

- Whether legal representation is allowed in administrative proceedings depends on the
provisions of the statute. Factory laws do not permit legal representation, Industrial Disputes
Act allows it with the permission of the tribunal and some statutes like Income Tax permit
representation as a matter of right.
- The courts in India have held that in following situations, some professional assistance must
be given to the party to make his right to defend himself meaningful: a) Illiterate b) Matter is
technical or complicated c) Expert evidence is on record d) Question of law is involved

⮚ Board of Trustees, Port of Bombay v. Dilip Kumar (AIR 1983 SC 109)

⮚ A request of delinquent employee for legal representation was turned down as there was no
provision in the regulations. During the course of enquiry, the regulation was amended
giving powers to Enquiry Officer to allow legal representation. The court held that this
question whether legal representation should be allowed to the delinquent employee would
depend on the fact whether the delinquent employee is pitted against legally trained mind. In
such a case, denial of request to engage a lawyer would result in violation of essential
principles of natural justice.
6. No evidence should be taken at the back of other party

➢ Hira Nath Misra v. Principal, Rajendra Medical College(AIR 1973 SC 1260)

➢ In this case the order of expulsion was challenged before the SC, and one of the grounds
of challenging was that the evidence was taken behind their backs.
➢ The SC rejected the contention holding that the girls would not have ventured to make the
statements in the presence of the appellants except at a great risk of retaliation and
harassment. In this case, whatever evidence was collected behind backs of the appellants was
brought to their notice and they were provided with an opportunity to rebut the evidence.
Every case has to be decided on its own merits.

7. Report of the enquiry to be shown to the other party

⮚ Keshav Mills Co. Ltd. v. UOI (AIR 1973 SC 389)

⮚ Appellant Co. after doing business for 30 years closed down, due to this 1200
employees became unemployed. On the basis of commission of enquiry into the affairs
of the Co. u/s 15 of Industries (Development and Regulation) Act,1951, in 1970 GOI
passed an order u/s 18-A to take over the Mill by the Gujarat Textile Corporation for a
period of five years, which was challenged before the SC on the ground that enquiry
report was not submitted.
⮚ The SC Held that –
a) It’s not possible to lay down general principle on this question.
b) Answer depends on facts and circumstances of each case.
c) If the non-disclosure of the report causes any prejudice in any manner to the party, it
must be disclosed, otherwise non-disclosure would not amount to violation of
principles of natural justice.
8. Institutional decision or who decides must hear

⮚ G.P. Nagswar Rao v. APSRTC (AIR 1959 SC 136)

⮚ Minister heard the claim but decision was made by CM
⮚ Held not violative as it is an Institutional hearing
⮚ Person tasked with duty of making decision may consult subordinates or others but
must appraise evidence and independently come to a decision
9. Rule against dictation
⮚ Order/Directions should not be based on third party instructions
 ⮚ Orient Paper Mills Co. Ltd. v. UOI( AIR 1970 SC 1498)
• The SC in this case quashed the order of the Dy. Superintendent levying excise duty on
the directions of the Collector.
10. Financial incapacity to attend the enquiry
- Mumtaz Hussain Ansari v. State of U.P. (AIR 1984 SC 1116)
- The SC held ruled that if the applicant was under suspension for a long time and, hence,
couldn’t deposit the initial amount Rs.900 due to his financial incapacity, the failure not to
summon to defense witnesses at the Government’s expense was a violation of the PNJ, unless
it was decided by the authority that the evidence of such witnesses was not material.

11. Decision post-haste( Administrative authority must not run rush decisions)
- City Corner v. Collector (AIR 1976 SC 143)
- In this case on 10th October, 1974, the appellant was granted a licence for conducting games
of skill and dances and other quality performances under the A.P. Places of Public Resort
Act, 1888. Objections having been raised, the Additional District Magistrate issued a show
cause notice to the appellant. In reply the appellant had asked for copies of certain documents
on the basis of which the show cause notice had been issued. In the meantime, however the
appellant submitted a tentative explanation stating that a detailed explanation would be sent
after the receipt of the copies of the documents.
- Immediately thereafter the District Magistrate cancelled the licence on 28 th January, 1975 on
the ground that the explanation offered was a routine one and was not convincing.
- The SC held that the order passed post-haste without supplying copies of adverse material, or
intimating that the summary of documents already supplied was sufficient, offends the PNJ.

Doctrine of Necessity

- The term Doctrine of Necessity is a term used to describe the basis on which
administrative actions by administrative authority, which are designed to restore order,
are found to be constitutional. The maxim on which the doctrine is based originated in
the writings of the medieval jurist Henry de Bracton, and similar justifications for this
kind of administrative action have been advanced by more recent legal authorities,
including William Blackstone.

- In modern times, the term was first used in a controversial 1954 judgment in which
 Pakistani Chief Justice Muhammad Munir validated the extra-constitutional use of
emergency powers by Governor General, Ghulam Mohammad. In his judgment, the
Chief Justice cited Bracton's maxim, 'that which is otherwise not lawful is made lawful
by necessity', thereby providing the label that would come to be attached to the judgment
and the doctrine that it was establishing.
- The Doctrine of Necessity has since been applied in a number of Commonwealth
countries, and in 2010 was invoked to justify administrative actions in Nepal.

- What is objectionable is not whether the decision is actually tainted with bias but that the
circumstances are such as to create a reasonable apprehension in the minds of others that
there is a likelihood of bias affecting the decision. The basic rule underlying this
principle is that ‘Justice must not only be done but must also appear to be done’. Doctrine
of Necessity is an exception to Nemo judex in causa sua propria.

- Where an alternative exists, no such use of Doctrine of necessity is possible.

⮚ Ashok Kumar Yadav & Ors v State of Haryana(AIR 1987 SC 454)

• Whether the selection of candidate would vitiate for bias if close relative of members of the
Public Service Commission is appearing for selection?

The SC laid down the following propositions:

1. Such member must withdraw altogether from the entire selection process otherwise all
selection would be vitiated on account of reasonable likelihood of bias affecting the process
of selection.

2. This is not applicable in case of Constitutional Authority like PSC whether Central or
State. This is so because if a member was to withdraw altogether from the selection process,
no other person save a member can be substituted in his place and it may sometimes happen
that no other member is available to take the place of such a member and the functioning of
PSC may be affected.

3. In such a case, it is desirable that the member must withdraw from participation in
interview of such a candidate and he should also not take part in the discussions.

The SC conceptualized the doctrine of necessity in this case.

 Unit 4

⮚Administrative discretion

➢ Meaning:

▪ Discretion means choosing from amongst the various available alternatives in accordance
with rule of reason and justice and thus it should not be taken to mean choosing arbitrarily
according personal whims. The choosing of alternatives must be legal and regular and not
arbitrary, fanciful and vague.

▪ Administrative discretion refers to the power to choose between courses of conduct in the
administration of an office or a duty pertaining thereto. It is the exercise of professional
expertise and judgment, as opposed to strict adherence to regulations or statutes, in making a
decision or performing official acts or duties.

1. Salmond

▪ "Matters of right and judicial discretion are not the subject of evidence and demonstration,
but of argument, and are submitted to the reason and conscience of the Court in determining
questions of judicial discretion it seeks to discover the right or justice of the matter."

2. Lord Diplock

▪ “The very concept of administrative discretion involves a right to choose between more
than one possible course of action upon which there is room for reasonable people to hold
different opinions as to which is to be preferred.”

⮚Doctrine of Discretion ▪ It implies power to make a choice between an alternative course of

action or inaction. A public officer has discretion whenever the effective limits of his power
leave him free to make a choice among possible courses of action or inaction.

▪ The term discretion itself implies vigilance, care, caution and circumspection. When the
legislature confers discretion on a court of law or on an administrative authority, it also
imposes responsibility that such discretion is exercised honestly, properly and reasonably.

⮚The reasons for growth of discretionary powers can be attributed to the following
reasons:

1) The welfare notion of the government and adoption of other development policies. 2)
Environmental Control mechanisms. 3) Lack for technical competence and requirement of
expert advice on the part of the legislation. 4) Discretion is used to deal with unforeseen
situations. 5) Complexity of subject matters and variety of problems to be encountered by the
administrative authorities.

➢ In addition to the reasons stated above administrative discretion is inevitable because it is

done to seek fulfilment of certain purposes. Broadly the functions can be classified as
follows:

1) At the time of laying down a law the legislators leave certain gaps and ambiguities in the
law. These gaps and ambiguities are to be filled by the exercise of administrative authorities
on case to case basis. 2) Determination of rights and interest of people that depends upon the
exercise of discretion of the authorities. 3) The policy objectives are sought to be widened by
the use of administrative discretion. 4) It is used to handle matters which require technical
expertise as the officers of a technical department are more equipped to handle such matters
as compared to the legislatures.

➢ The duty of Court is to confine itself to the question of legality. Its concern should be
whether
1. A decision – making authority exceeded its power;
2. Committed an error of law;
3. Committed a breach of the rules of natural justice;
4. Reached a decision which no reasonable tribunal would have reached, and
5. Abused its power.

⮚Grounds of Judicial control over administrative discretion

▪ In India, the Courts will interfere with the discretionary powers exercised by the
administration in the following circumstances:
I. Failure to exercise discretion
II. Abuse of discretion

I. Failure to exercise discretion

1. Non – application of mind
 - Where an authority is given discretionary powers, it is required to exercise it by
applying mind to the facts and circumstances of the case in hand. If it does not do so, its
action or decision will be bad.

➢ Swaran Singh v. State of U.P. (AIR 1998 SC 2026) • In this case, a Member of
Legislative Assembly was convicted for an offence of murder. Within less than two years,
however, he was released as the Governor of the state granted the remission under Article
161 of the Constitution. The son of the deceased challenged the action inter alia on the
ground that there was non-application of mind by the Governor to several relevant facts and
materials. • Thus, when the order of the Governor impugned in these proceedings is subject to
judicial review within the strict parameters laid down in Maru Ram Case and reiterated in

Kehar Singh Case, the Court held that the Governor shall reconsider the petition of
respondent in the light of those materials which he had no occasion to know earlier.

• The SC, therefore, quashed the impugned order to enable the Governor of U.P. to pass a
fresh order in the petition filed by the respondent for remission of the sentence in the light of
the observations made above.

2. Acting under dictation

▪ Where the authority exercises its discretionary power under the instructions or dictation
from superior authority, it is taken as nonexercise of power by the authority and its decision
or action is bad.

➢ Purtabpore Company Ltd. v. Cane Commissioner of Bihar (1969) • In this case the Cane
Commissioner under Cl.6 (1) of the Sugar Cane (Control) Order, 1955, had the power to
reserve sugarcane areas for the sugar factories, but at the dictation of the Chief Minister,
excluded 99 villages from the area reserved by him in favour of the appellant company. • The
Court quashed the exercise of discretion by the Cane Commissioner on the ground that he
abdicated his power by exercising it at the dictation of some other authority; therefore, it was
deemed that the authority had not exercised its discretion at all.

3. Sub – delegation (‘Delegatus non potest delegare‘ – a delegate cannot further

delegate)

Proper test whether sub-delegation is legal or not is to decide whether the final decision rests
with the authority on whom power is conferred by the Act. If such decision is taken by the
authority, the decision is valid. If the decision is taken by any other authority, it would be
invalid and unlawful.

➢ Pradyat Kumar Bose v. C. J. of Calcutta H.C. (AIR 1956 SC 285) ▪ The enquiry against
the Registrar of H.C. was made by a judge of the Court. After considering the report and
giving show-cause notice, he was dismissed by the CJ. ▪ The SC held that it was not a case of
delegation of power by the C.J. but merely of employing a competent officer to assist the C.J.

4. Imposing fetters on discretion

- An authority with discretionary power must exercise the same after considering individual
cases. Instead of doing that if the authority imposes fetters on its discretion by adopting
fixed rules of policy to be applied in all cases before it, there is failure to exercise
discretion on the part of that authority.

➢ Sri Rama Sugar Industries Ltd. v. State of A.P. ( AIR 1974 SC 1745) ▪ Tax was imposed
on the purchase of sugarcane but the Govt. was granted power under Sec. 21(3)(b) of the A.P.
Sugarcane (Regulation of Supply and Purchase)Act, 1951 to exempt any new sugar factory
from payment of tax for a period of one year. The Govt. however by way of policy decision
decided to grant such exemption only in favour of the co-operative sector. The appellant
challenged the said policy. The Court upheld the action of the Govt.

5. Discretionary power coupled with duty

- De Smith states, “discretionary powers are frequently coupled with duties.” ⮚ In the
words of Lord Blackburn, “enabling words were always compulsory where the words
were to effectuate a legal right.

➢ Municipal Council, Ratlam v. Vardichan (AIR 1980 SC 1622) • Some residents of the
Municipality moved the Sub-divisional Magistrate under Sec. 133 Cr.P.C 1973, for
abatement of nuisance by directing the Municipality to construct the drain pipes with flow of
water to wash away the filth and stop the stench. The Magistrate found the facts proved and
issued necessary directions.

• Krishna Iyer J. observed that, “this is a public duty implicit in the public power to be
exercised on behalf of the public and pursuant to a public proceeding.”

II. Excess or Abuse of discretion:

1. Acting without jurisdiction

➢ Govt. of A.P. v. M.T. Khan (AIR 2004 SC 428) • In this case two convicts by competent
courts of M.P. and Maharashtra were transferred to A.P. jail. The Governor of A.P. granted
remission to • (a) all convicted prisoners sentenced to imprisonment for life and governed by
Section 433-A, Cr.P.C., who have completed 14 years of total sentence including 10 years of
actual sentence as on 14.1.1995 shall be released. • (b) all convicted prisoners sentenced to
imprisonment for life and governed by Section 433-A, Cr.P.C. aged more than 65 years and
have undergone more than 5 years of actual sentence and a total sentence of 7 years as on
14.01.1995 shall be released". • But these two convicts were not granted remission under this
notification. • The SC held that the High Court was not justified in obliterating a part of the
G.O. and extending the benefits to the concerned prisoners. It amounts to the Court re-
making the policy and redoing the G.O. itself. The High Court's judgment to that extent is
erroneous and needs to be set aside. But after serving the requisite sentence, the appropriate
Government which according to this Court in the present case are States of Madhya Pradesh
and Maharashtra respectively, their cases shall be considered by those two State
Governments who shall take necessary decision as to whether their release is permissible and
desirable.

2. Mala fide (dishonest intention and corrupt motive)

▪ Mala fide exercise of discretionary power is always bad and taken as abuse of discretion. If
the discretionary power is exercised by the authority with bad faith or dishonest intention, the
action is squashed by the court.

➢ Hem Lall Bhandari v. State of Sikkim (AIR 1987 SC 762)

• Hem Lall Bhandari, an advocate was detained under the National Security Act, 1980. He
alleged that the C.M. wanted him to join politics. But he was refused to do so, then he was
detained. No material whatsoever placed on record to substantiate the allegations. • The SC
held that if reasons are not so recorded, the order of detention will automatically fail. Even if
reasons are recorded they have to inspire confidence in the Court and are subject to legal
scrutiny. If the reasons are unsatisfactory, Courts would still quash the order of detention. The
Court held that the order of detention is bad and quashed.

3. Leaving out relevant consideration

- The administrative authority exercising the discretionary power is required to take into
account all the relevant facts. If it leaves out relevant consideration, its action would be
bad.

➢ Rampur Distillery Co. Ltd. v. Company Law Board( AIR 1970 SC 1789) ▪ The Company
Law Board refused to give its approval for renewing the managing agency of the company on
the ground that M.D. of the Agency was guilty of misconduct in 1946-47. ▪ The SC held that
the past conduct of the directors were a relevant consideration, but before final decision, it
should take into account their present activities also. Therefore the action of the Board was
declared as invalid by the SC.

4. Irrelevant consideration

- The consideration will be irrelevant if there is no reasonable connection between the facts
and the grounds

➢ Dr. Ram Manohar Lohia v. State of Bihar( AIR 1966 SC 740) ▪ Under Rule 30(1)(b) of
Defence of India Rules 1962, the authority was empowered to detain a person to prevent
subversion of ‘public order.’ The petitioner was detained with a view to prevent him from
acting in a manner prejudicial to the maintenance of ‘law and order.’ The SC set aside the
order of detention and held that the term ‘law and order’ was wider than the term ‘public
order’. • The expression "law and order' does not find any place in the rule and is not
synonymous with "public order'. The SC held that "law and order" is a comprehensive
expression in which would be included not merely public order, but matters such as public
peace, tranquility, orderliness in a locality or a local area and perhaps some other matters. •
"Public order" is something distinct from order or orderliness in a local area. Under Rule
30(1)(b) of Defence of India Rules 1962, no power is conferred upon that authority to detain
a person on the ground that it is necessary so to do in order to prevent that person from acting
in a manner prejudicial to the maintenance of order in a local area.

5. Mixed consideration (Sec.5 – A of the National Security Act,1980)

- When the discretionary power exercised by the authority on both relevant and irrelevant
grounds, the court will examine whether or not the exclusion of irrelevant or non-
existence considerations would have affected the ultimate decision.

➢ Pyare Lal Sharma v. Managing Director, Jammu & Kashmir IndustriesLtd. (AIR 1989
SC 1854) • The Regulation 16.14 of the Jammu & Kashmir Industries Employees Service
Rules & Regulations, was amended on April 20, 1983 which stated that ‘if the employee
remains on an unauthorized absence or if he takes part in active politics, in such cases the
services shall be terminated if he fails to explain his conduct satisfactorily within 15 days
from the date of issue of notice and the management shall be empowered to take a decision
without resorting to further enquiries.’ The SC stated that it is a basic principle of natural
justice that no one can be penalized on the ground of a conduct which was not penal on the
day it was committed. The date of show cause notice being April 21, 1983 the unauthorized
absence from duty which has been taken into consideration is from December 20, 1982 to

April 20, 1983. Whole of this period being prior to the date of amendment of regulation
16.14, the same could not be made as a ground for proceeding under ground (c) of Regulation
16.14. The notice served on the appellant was thus illegal and as a consequence the order of
termination cannot be sustained and has to be set aside.

6. Colourable exercise of power

▪ Where a power is exercised by the authority ostensibly for the purpose for which it was
conferred, but in reality for some other purpose, it is called colourable exercise of power.
This is also known as fraudulent exercise of power. It is based on the principle that an AA
cannot exercise power for a purpose not warranted by law

➢ Dr. D.C. Wadhwa & Ors v. State of Bihar & Ors. (AIR 1987 SC 579) • The SC held that
When the constitutional provision stipulates that an Ordinance promulgated by the Governor
to meet an emergent situation shall cease to be in operation at the expiration of six weeks
from the reassembly of the Legislature and the Government if it wishes the provisions of the
Ordinance to be continued in force beyond the period of six weeks has to go before the
Legislature which is the constitutional authority entrusted with the law making function, it
would most certainly be a colourable exercise of power for the Government to ignore the
Legislature and to re promulgate the Ordinance and thus to continue to regulate the life and
liberty of the citizens through Ordinance made by the Executive. • Such a stratagem would be
repugnant to the constitutional scheme, as it would enable the Executive to transgress its
constitutional limitation in the matter of law making in an emergent situation and to covertly
and indirectly arrogate to itself the law making function of the Legislation.
7. Unreasonableness

▪ A discretionary power confined on an administrative authority must be exercised by that

authority reasonably. If the power is exercised unreasonably, here there is an abuse of power
and the action of the authority will be ultra vires.

➢ Ranjit Thakur v. UOI (AIR 1987 SC 2386)

- The appellant, in this case, a Signal Man in a Signal Regiment of the Armed Services, while
serving out a sentence of 28 days' rigorous imprisonment imposed on him by the
Commanding officer of the Regiment respondent No. 4, for violating norms for
presenting representations to higher officers, was alleged to have committed another
offence by refusing to eat his food on March 29, 1985 when ordered to do so. He was
charged under section 41(2) of the Army Act, 1950 for disobeying a lawful command
given by his superior officer. A sentence of rigorous imprisonment for one year was
imposed by a Summary Court Martial. He was removed to the civil prison and he served
out the sentence. • The SC held that the punishment of dismissal and sentencing of one
year rigorous imprisonment on an Army Official for disobeying an order of superior
officer to eat food was hold thoroughly unreasonable, grossly disproportionate and
excessively high.

- The Court set aside dismissal order and held that appellant entitled to be reinstated with all
monetary and service benefits.

8. Exceeding jurisdiction

- A question whether the authority acted within the limits of its power or exceeded its
jurisdiction depends upon he facts and circumstances of each case and should be decided
by keeping in view the provisions of the Act and conferment of power on the authority.

➢ Indian Council of Legal Aid & Advice v. BCI (AIR 1995 SC 691) • The Bar Council of
India by Resolution No. 64 of 1993 dated 22-8-1993 added Rule 9 in Chapter III of Part VI of
the Bar Council of India Rules which resolution was gazetted on 25-9-1993. The said newly
added rule reads as under: "A person who has completed the age of 45 years on the date on
which he submits his application for his enrolment as an advocate to the State Bar Council
shall not be enrolled as an advocate." All the State Bar Councils in the country were duly
informed about the insertion of the said rule. The legality and validity of the said rule is
questioned as inconsistent with Articles 14, 19(1)(g) and 21 of the Constitution and Section
24 of the Advocates Act, 1961.

• The Parent Act (The Advocates Act, 1961) enabled the BCI to laydown conditions subject
to which an advocate “shall have right to practice." Declaring the rule ultra vires, the SC held
that the BCI can make the rule only after a person is enrolled as an advocate, i.e. at post -
enrolment stage. It cannot frame a rule barring persons from enrollment. The rule was thus
inconsistent with the Parent Act and other Articles of the Constitution.

9. Use for improper purpose

▪ The discretionary power is required to be used for the purpose for which it has been given.
If it is given for one purpose and used for another purpose, it will amount to abuse of power. (
2G Scam, OMC Scam etc.)

➢ Bangalore Medical Trust v. K.P. Muddappa (AIR 1991 SC 1902) • A site in the city of
Bangalore was reserved for a public park under the BDA Act, 1976, was allotted it at the
instance of then C.M. to a private trust for construction of hospital. It was contended that the
action was taken in the public interest and the hospital being not only an amenity but also a
civic amenity under the Act. • The SC however, held that “the exercise of power was contrary
to the purpose for which it was conferred under the statute and declared Govt. orders null and
void.”

➢ Fundamental Rights and administrative discretion

➢ Limitation on grant of discretionary power and Article - 14

▪ Article 14 of the Indian Constitution provides certain limitation on the conferment of

discretionary powers. Article 14 provides a fundamental right of equality before law and
equal protection of law to the citizens of India. It lays down that laws should be applicable to
every person in the same sense and should not discriminate one person against another. ▪ Any
law which discriminates between persons or classes of persons would be invalid and void. A

similar criterion has been adopted while checking the validity of the discretionary power
exercised by the administrative authorities.
➢ West Bengal v. Anwar Ali Sarkar (AIR 1952 SC 75)

➢ The West Bengal Special Courts Act, 1950 was entitled “An Act to provide for the
speedier trial of certain offences," and the object of the Act. as declared in the preamble, was
"to provide for the speedier trial of certain offences". Section 3 of the Act empowered the
State Government by notification in the official gazette to constitute Special Courts, and Sec.
5 provided that "A Special Court shall try such offences or classes of offences or cases or
classes of cases, as the State Government may by general or special order in writing, direct.“

➢ Act laid down a procedure for trial before Special Courts which was different in several
respects from that laid down by the for trial of offences generally. The respondent, who was
convicted by a Special Court which tried his case under a notification issued by the
Government under Sec. 5, contended that the said section was unconstitutional and void in as
much as it contravened Art. 14 of the Constitution, which provides that "the State shall not
deny to any person equality before the law or the equal protection of the laws within the
territory of India".

▪ The SC held that the executive authorities could arbitrarily select a case for trial by the
special courts. It was held that in so far as the Act empowered the government to have any
case or class of cases or offence or class of offences tried by the special courts, violated
Article 14 of the Constitution.

➢ R. Patnakar Rao v. State of Andhra Pradesh (10/05/1996)

• The petitioners are the owners of goods motor vehicles and were plying the same on the
basis of national/State permits issued by the appropriate transport authorities. When they
challenged the validity of GO No.54 dated March 31, 1995 issued by the Department of
Transport [Roads and Buildings] enhancing the compounding fee U/s 200, from Rs.10 per
k.g. to Rs.100/- per k.g. as being violative of the Motor Vehicles Act, 1988 and arbitrary
being violating Article 14 of the Constitution, the Division Bench in the impugned judgment
upheld the said GO. • The Court held that normally the discretion is held not to be unguided,
unanalyzed or arbitrary if there are built in checks against its abuse.

➢ The two built in checks are:

1. If the power is given to a high official or authority;
2. There are provisions requiring that the exercise of discretion should be preceded by an
inquiry conducted in accordance with a quasi-judicial procedure.
➢ Limitation on grant of Discretionary Power and Article -19

• Article 19 of the Constitution provides the right to freedom of speech and expression along
with several other rights. It is basically a privilege given to the citizens of India that they have
right to speech and expression and other rights under this chapter.

• When a person exercises this right other persons are under a duty not to infringe or curtail
such rights. Therefore grant of any discretionary power which acts as a hindrance to the
fundamental right of the citizens or curtails such fundamental rights is declared void.
Therefore Art 19 acts as a regulator on the conferment of discretionary power.

Art. 19(1)(a) &19(2)- Freedom of speech and expression

➢ Khwaja Ahmed Abbas v. Union of India (AIR 1971SC 481)

• The petitioner made a documentary film called "A Tale of Four Cities" which attempted to
portray the contrast between the life of the rich and the poor in the four principal cities of the
country. The film included certain shots of the red light district in Bombay. Although the
petitioner applied to the Board of Film Censors for a `U' Certificate for unrestricted
exhibition of the film, he was granted a certificate only for exhibition restricted to adults. On
an appeal made to it by the petitioner, the Central Government issued a direction on July 3,
1969 that a `U‘ Certificate may be granted provided certain specified cuts were made in the
film. • The petitioner thereafter field the present petition seeking a declaration that the
provisions of Part 11 of the Cinematograph Act, 1952, together with the rules prescribed by
the Central Government on February 6, 1960 in the exercise of its powers under Sec. 5-B of
the Act were unconstitutional and void; he further prayed that the direction dated July 3, 1969
should be quashed. The petitioner claimed that his fundamental tight of free speech and
expression was denied by the order of the Central Government and that he was entitled to a
'U' Certificate for the film as of right. • The SC held that unguided or arbitrary discretion
without any procedural safeguards or legislative policy should not be given to an
administrative officer to regulate freedom and speech and expression . Also, discretion has to
be exercised only for the purpose mentioned in Art 19 (2).

Art. 19(1)(c)& 19(4) – Freedom to form Associations

➢ State of Madras v. V.G. Row (AIR 1952 SC 192) • In this case, the Government Order No.
1517, Public (General) Department, runs as follows:-- "Whereas in the opinion of the State
Government, the Association known as the People's Education Society, Madras, has for its
object interference with the administration of the law and the maintenance of law and order,
and constitutes a danger to the public peace;” • Now, therefore, His Excellency the Governor
of Madras, in exercise of the powers conferred by Section. 16 of the Indian Criminal Law
Amendment Act, 1908 hereby declare the said association to be an unlawful association
within the meaning of the said Act. • The SC held that Sec. 15 (2)(b) of the Criminal Law
Amendment Act, 1908, as amended by the Criminal Law Amendment (Madras) Act, 1950,
falls outside the scope of authorized restrictions under clause (4) of article 19 and is,
therefore, unconstitutional and void

Art. 19(1)(e) & 19(5) – Freedom to Reside and Settle

➢ Ebrahim Vazir Mavat v. State of Bombay (AIR 1954 SC 229) ⮚ In this case the SC
rejected a statutory provision, Sec.7 of the Influx from Pakistan (Control) Act, 1949, seeking
to authorise the Govt. to impose penalty the removal of a citizen from India on ‘reasonable
suspicion entertained’ by it that the person concerned had committed an offence against the
permit law.

➢ The SC held that Sec. 7 of the Influx from Pakistan (Control) Act, 1949 is void under Art.
13(1) in so far as it conflicts with the fundamental Right of a citizen of India under
Art.19(1)(e) of the Constitution and the order of physical removal of the citizen from India, is
therefore liable to be set aside.

Art. 19(1)(d),19(1)(e)&19(5) - Right to Movement and Residence

➢ Hari Khemu Gawali v. Dy. Commissioner of Police (AIR 1956 SC 559)

▪ In this case an order of externment was passed against the petitioner who challenged the
order on the ground that Sec. 57 of Bombay Police Act, 1951, contravened clauses(d)
and(e)of Article 19(1) of the Constitution, that the provisions of the said section imposed
unreasonable restrictions on the petitioner's fundamental rights of free movement and
residence and that the order passed against him was illegal in as much as it was based on
vague allegations and inadmissible material. ▪ The SC held that Section 57 of the Bombay
Police Act, 1951 is not unconstitutional, because, it is an instance of the State taking
preventive measures in the interests of the public and for safeguarding individual rights, by
preventing a person, who has been proved to be a criminal from acting in a way which may
be a repetition of his criminal propensities and the restrictions that it imposes on the
individual's right to reside in and move freely in any part of India are reasonable within the
meaning of clause (5) of Art. 19 of the Constitution.

Art.19(1)(g) & 19(6) – Freedom to carry on Trade and Commerce

➢ Chintaman Rao v. The State of Madhya Pradesh (AIR 1951 SC 118)

• In this case an order was issued by the Deputy Commissioner under the provisions of the
Central Provinces and Berar Regulation of Manufacture of Bidis (Agricultural Purposes) Act,
1948, forbidding all persons residing in certain villages from engaging in the manufacture of
bidis during the agricultural season. A manufacturer of bidis and an employee in a bidi
factory residing in one of the said villages applied under Art. 32 of the Constitution for a writ
of mandamus alleging that since the Act prohibited the petitioners from exercising their
fundamental right to carry on their trade or business which was guaranteed to them by cl. (1)
(g) of Art. 19 of the Constitution, the Act was void. ▪ The SC held that the object of the statute,
namely, to provide measures for the supply of adequate labour for agricultural purposes in bidi
manufacturing areas of the Province could well have been achieved by legislation restraining
the employment of agricultural labour in the manufacture of bidis during the agricultural
season without prohibiting altogether the manufacture of bidis. As the provisions of the Act
had no reasonable relation to the object in view, the Act was not a law Imposing "reasonable
restrictions" within the meaning of cl. (6) of Art-19 and was therefore void.

Arts.21 & 22 – Personal Liberty and Preventive detention

➢ Dr. Ram Krishan Bhardwaj v. The State of Delhi (AIR 1953 SC 318) • The petitioner
was arrested on the 10th March, 1953, under an order of the District Magistrate of Delhi
made under section 3 of the Preventive Detention Act 1952. The grounds of detention were
communicated to the petitioner on the 15th March, 1953. • The constitutional requirement
that the grounds must not be vague must be satisfied with respect to each of the grounds
communicated to the person detained subject to the claim of privilege under cl. (6) of Art.22
of the Constitution. Where one of the grounds mentioned was "you have been organising the
movement (Praja Parishad Movement)by enrolling volunteers among the refugees in your
capacity as President of the Refugee Association of Bara Hindu Rao": • The SC held, that this
ground was vague and even though the other grounds were not vague the detention was not in
accordance with the procedure established by law and was therefore illegal.
Reasonable exercise of power and Wednesbury Principle (Irrationality)
➢ Associated Provincial Picture Houses v. Wednesbury Corporation(1948)KB 223)

- Irrationality as a ground of judicial review was developed by the Court in this case, later
came to be known as “Wednesbury Test” to determine irrationality of administrative action.
⮚The plaintiff-company was granted licence under the Cinematograph Act, 1909 subject to
the condition that “no children under the age of 15 years shall be admitted to any
entertainments whether accompanied by an adult or not.”

- This condition was challenged as unreasonable and the provisions of Sunday

Entertainments Act, 1932 were also challenged. ⮚Judgment ▪ 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 conclude that:
1. In making the decision, the defendant took into account factors that ought not to have
been taken into account, or
2. The defendant 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.

- A decision of the Administrative Authority shall be considered as irrational:

1. If it is without the authority of law.

2. If it is based on no evidence.

3. If it is based on irrelevant and extraneous consideration.

4. If it is so outrageous in its defiance to logic or accepted norms of moral standard that no

sensible person, on the given facts and circumstances, could arrive at such a decision.

- If the decision of the Authority is so capricious, perverse, arbitrary, unreasonable and

manifestly unjust that no sensible person can come to that conclusion, court would quash it.

▪ In applying this test court would not apply strict scrutiny and would not judge adequacy or
sufficiency of the material unless fundamental rights are violated, and would not substitute its
judgment with the judgment of the administrator unless the decision is perverse.

5. It is so unreasonable that it may be described as done in bad faith.

Purtabpore Co. Ltd. v. Cane Commissioner and 7 others. *application base Q*

- In this case the Cane Commissioner under Cl.6 (1) of the Sugar Cane (Control) Order,
1955, had the power to reserve sugarcane areas for the sugar factories, but at the dictation
of the Chief Minister, excluded 99 villages from the area reserved by him in favour of the
appellant company. The Court quashed the exercise of discretion by the Cane
Commissioner on the ground that he abdicated his power by exercising it at the dictation of
some other authority; therefore, it was deemed that the authority had not exercised its
discretion at all.

Doc. Of leg. Expectation

Meaning: A person may have a LE of being treated in a certain way by an administrative

authority even though he has no legal right in private law to receive such treatment. Prof.
Wade: “LE means a reasonable expectation, can equally well be involved in any situations
where fairness and good administration justify the right to be heard.” This doctrine has been
developed both in the context of reasonableness and in the context of natural justice.

1. Legitimate expectation and natural justice: Fair procedure and just treatment are
the core of our jurisprudence. Hence, where the Govt. or an instrumentality of State
declares a policy, or holds out a promise, or makes a statement, or adopts a
particular code, the DLE operates.
2. LE and unreasonableness: In administrative affairs of the country, the Govt. and
its instrumentalities are expected to honour policy statements without unfair
discrimination to persons similarly situated. (Art.14)
3. LE and Public Policy: It is open to the Govt. to frame and reframe its policy. If the
policy is changed and the court does not find it arbitrary, unreasonableness or
otherwise objectionable, the DLE does not make a decision of the Govt. vulnerable.
4. LE and Estoppel: The element of acting to applicant’s detriment which is a sine
qua non (an essential condition) for invoking estoppel is not a necessary ingredient
of legitimate expectation.
5. When it arises: if there is express promise held out or representation made by a
public authority; or because of the existence of past practice which the claimant can
reasonably expect to continue; and such promise or representation is clear and
unambiguous
 6. Duty of applicant: LE affords the applicant standing to apply for the judicial
review. A person, who bases his claim on the DLE in the first instance, must prove
that there is a foundation for such claim.
7. Duty of authority: Where the applicant prima facie satisfies the court that his claim
on the basis of LE is well founded, it is for the authority to justify the action taken
against the application.
8. Duty of court: When a case of LE is made out by the applicant, the court will
consider the prayer of the applicant for grant of relief.
9. Scope of judicial review: To qualify as a subject of judicial review, the decision
impugned must have consequences which affect a person or body of persons by
depriving him of some benefit or advantage which affects a person or body of
persons by depriving him of some benefit or advantage.

State of Kerala v. K.G. Madhavan Pillai ((1988) 4 SCC 669): The Doctrine of Legitimate
Expectation was firstly discussed in the Indian arena in this case wherein a sanction was issued
under Kerala Education Act, 1957, for the respondents to open a new aided school and to
upgrade the existing schools, however, an Order was issued 15 days later to keep the previous
sanction in abeyance. This Order was challenged by the respondents in lieu of violation of
principles of natural justice. The Supreme Court ruled that the sanction had entitled the
respondents with legitimate expectation and the second order violated principles of natural
justice.

*Vijalakshmi Mills v. state of AP:

- Under S.3 of the Essential Commodities Act 1955, the respondent passed the Andhra
Pradesh Procurement (Levy) order 1959, requiring every miller and dealer of rice
(including the appellants) to sell to the respondent certain specified varieties and quantities
of rice at controlled price on requisition being served on him.

- Clause 2(a) of the order defined "controlled price" as the maximum price fixed by the
Central Government from time to time under S.3 of the Act for the sale of rice. On
December 19, 1963, the Central Government Passed the Rice (Andhra Pradesh) Price
Control order 1963, fixing the maximum price of akkulu rice at Rs. 46.89 per quintal. The
appellants sold several quantities of akkulu rice to the respondent from January 26, 1964,
to February 21, 1964, and were paid at the controlled rate. On March 23, 1964 the Central
 Government issued the Rice (Andhra Pradesh) Price Control (3rd amendment) order 1964,
and substituted Rs. 52.28 for Rs. 46.89 as the maximum price per quintal, of akkulu rice.

- The appellant's claim for the benefit of the enhanced price for the earlier sales was rejected
by the Government of Andhra Pradesh. The appellants succeeded before the Subordinate
Judge, Machilipatnam in their suits for recovery of the difference between the two
controlled prices but lost before the High Court, in appeals preferred by the State of
Andhra Pradesh.

- It was contended before this Court that the prices fixed by the Government are for the
entire season, and the appellants are entitled payment at the amended rates, regardless of
the dates when the supplies were made, and that the word "substitute" infers retrospective
effect. Dismissing the appeals, the Court

- HELD: In the absence of express words or appropriate language from which retrospectivity
may be inferred, a notification takes effect from the date it is issued and not from any prior
date. Statutes should not be construed so as to create new disabilities or obligations or
impose new duties in respect of transactions which were complete at the time the
Amending Act came into force. The property in the goods having passed to the
Government of Andhra Pradesh on the dates the supplies the made, the appellants had to be
paid only at the controlled prices obtaining on the dates the sales were effects and not at
the increased price which came into operation subsequently.
 Unit 5

 Grounds of Judicial Review of Administrative Action

⮚Grounds of a Judicial Review of administrative actions:

1. Illegality ▪ Decision-makers must understand the law that regulates them. If they fail to
follow the law properly, their decision, action or failure to act will be “illegal”. Thus, an
action or decision may be illegal on the basis that the public body has no power to take that
action or decision, or has acted beyond its powers.

A. Lack of jurisdiction

i. That the law under which AA is constituted and exercising jurisdiction is itself un-
constitutional.
ii. That the authority is not properly constituted as required by law.
iii.That the AA has wrongly decided a jurisdictional fact and thereby assumed jurisdiction
which did not belong to it.
iv. That some of the essential preliminary proceedings or conditions have been disregarded
which were conditions precedent for the exercise of jurisdiction. Such as:
a) non-formation of necessary opinion before assuming jurisdiction,
b) non-issues of statutory notice, or
c) Non-institution proceedings within specified time.

v. That the AA is incompetent to assume jurisdiction in respect of subject – matter, area and
parties.

B. Excess of jurisdiction
i. Continue to exercise jurisdiction despite occurrence of an event ousting jurisdiction
ii. Entertaining matters outside its jurisdiction

C. Abuse of jurisdiction
⮚ In the following situations, an abuse of power may arise:

i. Malfeasance in office • Malfeasance in office is the commission of an unlawful act, done in

an official capacity, that affects the performance of official duties. Malfeasance in office is
often grounds for a just cause removal of an elected official by statute or recall election.
ii. Error apparent on the face of the record which may be a result of misrepresentation or
misapplication of law.

iii. Consideration extraneous material

iv. Non-consideration of relevant material

v. Colourable exercise of power – Administrative power cannot be used for the purpose it
was not given. Therefore, achieving an authorised purpose will be a colourable exercise of
power subject to judicial review.
vi. Mala fide exercise of power

D. Failure to exercise Jurisdiction

i. Where authority has sub-delegated its power without the authority of law.
ii. Where authority is exercising its power under dictation.
iii. Where authority has fettered its powers by self-imposed restrictions unwarranted by law.
iv. Where authority declines jurisdiction which belongs to it under law.
v. Where there is non-application of mind by the authority and is acting in mechanical
manner ignoring conditions precedent.

2. Irrationality (Wednesbury test)

⮚ Associated Provincial Picture House v. Wednesbury Corporation (1948) KB 223

▪ Irrationality as a ground of judicial review was developed by the Court in this case, later
came to be known as “Wednesbury Test” to determine irrationality of administrative action.

▪ In this case the plaintiff-company was granted licence under the Cinematograph Act, 1909
subject to the condition that “no children under the age of 15 years shall be admitted to any
entertainments whether accompanied by an adult or not.”

▪ This condition was challenged as unreasonable, irrational and the provisions of Sunday
Entertainments Act, 1932 were also challenged.

⮚ 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
conclude that: (irrationality includes) a. if power is exercised without the authority of law. b.
if it is based on no evidence. c. if it based on irrelevant and extraneous consideration. d. if it
is so outrageous in its defiance to logic or accepted norms of moral standard that no sensible
person, on the given facts and circumstances, could arrive at such decision. e. it is so
unreasonable that it may be described as done in bad faith.

3. Procedural impropriety

⮚ Requirement of fair procedure may arise in the following ways: a. As a constitutional

mandate where FRs of the people are violated. b. As a statutory mandate - If a statute lays
down any procedure which administrative authority must follow before taking any action, it
must be faithfully followed and any violation of the procedural norm would vitiate an
administrative action. c. As an implied requirement where a statute is silent about procedure.

▪ The Rules of Natural Justice which guarantee “fair play in action ” include: 1. Rule against
bias – No one should be made judge in his own cause. 2. Rule of fair hearing - No one should
be condemned unheard.

4. Proportionality

▪ Proportionality means that the administrative action should not be more drastic than it ought
to be for obtaining desired results. Thus this doctrine tries to balance means with ends.

▪ Proportionality shares space with ‘reasonableness’ and courts while exercising power of
review, see ‘is it a course of action that could have been reasonably followed’.

▪ The doctrine proportionality is applied in the following situations:

- Where administrative action invades FRs. In such a case courts make strict scrutiny of
administrative action and go into the question of correctness of the choices made by the
authority.

- Where question of quantum of punishment imposed by the AA is involved, in such a case

court would not make strict scrutiny.

▪ While reviewing an administrative action on the ground of proportionality, the courts

also generally examine:

▪ Whether the relative merits of different objectives or interests have been appropriately
weighed and fairly balanced?
▪ Whether the action under review was, in the circumstances, excessively restrictive or
inflicted an unnecessary burden?

In Ranjit Thakur v. Union of India &Ors. (1987) 4 SCC 611,

- This Court was dealing with a case where the petitioner had made a representation
about the maltreatment given to him directly to the higher officers. He was sentenced to
rigorous imprisonment f or one-year f or that offence. While serving the sentence
imposed upon him, he declined to eat food. The summary court martial assembled the
next day sentenced him to undergo imprisonment f or one more year and dismissal from
service. This Court held that the punishment imposed upon the delinquent was totally
disproportionate to the gravity of the offence committed by him.

- The doctrine of proportionality, as part of the concept of judicial review, would ensure
that even on an aspect which is, otherwise, within the exclusive province of the Court-
Martial, if the decision of the Court even as to sentence is an outrageous defiance of logic,
then the sentence would not be immune from correction. Irrationality and perversity are
recognized grounds of judicial review.

 Writ Jurisdiction

1. Habeas Corpus: The meaning of the Latin phrase Habeas Corpus is 'have the body'.
According to article 21, "no person shall be deprived of his life or personal liberty except
according to the procedure established by law”. The objective of the writ of habeas corpus is
to provide for a speedy judicial review of alleged unlawful restraint on liberty. It aims not at
the punishment of the wrongdoer but to resume the release of the retinue. The writ of habeas
corpus enables the immediate determination of the right of the appellant's freedom. Article 22
of the constitution requires an arrested person to be produced within 24 hours of his arrest
and failure to do so would entitle the person arrested to be released. The grounds of his arrest
should also be informed to him. Even when the arrest is valid, failure to inform the grounds
within a reasonable time would make the detention unconstitutional. In such cases, the writ of
Habeas corpus acts as a constitutional privilege. Sunil Bhatra V/S Delhi Administration
1979 SC: It has been held that the writ of habeas corpus can be issued not only for releasing a
person from illegal detention but also for protecting prisoners from the inhuman and
barbarous treatment

2. Certiorari: The writ of Certiorari is generally issued against authorities exercising quasi-
judicial functions. The Latin word Certiorari means 'to certify'. Certiorari can be defined as a
judicial order of the supreme court or by the high courts to an inferior court or to any other
authority that exercise judicial, quasi-judicial or administrative functions, to transmit to the
court the records of proceedings pending with them for scrutiny and to decide the legality and
validity of the order passed by them. Through this writ, the court quashes or declares invalid
a decision taken by the concerned authority. Though it was meant as a supervisory
jurisdiction over inferior courts, scope of certiorari has been extended even to administrative
decisions. Certiorari is corrective in nature. This writ can be issued to any constitutional,
statutory or non-statutory body or any person who exercise powers affecting the rights of
citizens. Grounds: 1. Lack of jurisdiction. 2. Abuse of jurisdiction. 3. Jurisdictional facts. 4.
Error of law apparent on the face of record. 5. Violation of the principle of natural justice.
Province of Bombay v/s Khushaldas 1950 SC: it was held that whenever anybody of a
person having legal authority to determine questions affecting the rights of subjects and
having the duty to act judicially acts in excess of their legal authority, a writ of certiorari will

lie. It does not lie to remove merely ministerial acts or to remove or cancel executive
administrative acts.

3. Prohibition: The grounds for issuing the writs of certiorari and prohibition are generally the
same. They have many common features too. The writ of prohibition is a judicial order issued
to a constitutional, statutory or non-statutory body or person if it exceeds its jurisdiction or it
tries to exercise a 5 jurisdiction not vested upon them. It is a general remedy for the control of
judicial, quasi-judicial and administrative decisions affecting the rights of persons. Grounds:
The writs of prohibition and certiorari are issued more or less on similar grounds. 1. Absence
or excess of jurisdiction. 2 Violation of fundamental rights. 3. Violation of the principles of
natural justice. 4. Statutes or laws against the constitution. Calcutta Discount Co. Ltd. v. ITO
AIR 1961 SC: held that when a subordinate court or tribunal is shown decisively that they
have acted in excess of their jurisdiction, the court will issue a writ of prohibition regardless
of whether there exists an alternative remedy or not.

4. Mandamus: The writ of mandamus is a judicial remedy in the form of an order from the
supreme court or high courts to any inferior court, government or any other public authority
to carry out a 'public duty' entrusted upon them either by statute or by common law or to
refrain from doing a specific act which that authority is bound to refrain from doing under the
law. The superior courts command an authority to perform a public duty or to non-perform an
act which is against the law. The word meaning in Latin is 'we command'. The writ of
mandamus is issued to any authority which enjoys judicial, quasi-judicial or administrative
power. The main objective of this writ is to keep the public authorities within the purview of
their jurisdiction while performing public duties. Grounds: 1. Lack of jurisdiction. 2. Error of
jurisdiction. 3. Excess jurisdiction. 4. Abuse of jurisdiction. 5. Violation of the principles of
natural justice. 6. Error of law apparent on the face of the record etc. State of West Bengal v.
Nuruddin (1998) 8 SCC 143: Supreme Court held the writ of mandamus is a personal action
where the respondent has not done the duty they were prescribed to do by law. The
performance of the duty is the right of the applicant

5. Quo Warranto: The word meaning of 'Quo warranto' is 'by what authority'. It is a judicial
order against a person who occupies a substantive public c office without any legal authority.
The person is asked to show by what authority he occupies the position or office. This writ is
meant to oust persons, who are not legally qualified, fro substantive public posts. The writ of
Quo warranto is to confirm the right of citizens to hold public offices. In this writ the court or
the judiciary reviews the action of the executive with regard to appointments made against
statutory provisions, to public offices. It also aims to protect those persons who are deprived
of their right to hold a public office. University of Mysore v. Govinda Rao: observed that the
procedure of quo Warranto confers the jurisdiction and authority on the judiciary to control
executive action in making the appointments to public offices against the relevant statutory
provisions; it also protects a citizen being deprived of public office to which he may have a
right.
  Doctrine of Legitimate expectation

▪ This doctrine is against the arbitrary use of powers. The plea is available when the Govt.
does not exercise its discretion on the expected lines. e.g. Refusing to renew contracts and
sudden discontinuation of a scheme, etc.

⮚ In very famous English case Council of Civil Service Union v. Minister for Civil Service,
Lord Diplock, has explained the doctrine of legitimate expectation, both in procedural and
substantive contexts.

▪ Procedural: The procedural part of it relates to a representation that a hearing or other

appropriate procedure will be afforded before any decision is made.

▪ Substantive: The substantive part of the theory is that if a representation has been expressly
made that a benefit of a substantive nature will be granted or if any person is already in
receipt of any benefit, it will be continued and will not be substantially varied to the
disadvantage of the recipient.”

▪ This was further explained in an Indian case of National Building Constructions

Corporation v. S Raghunathan, where it was held that

▪ “Legitimate Expectation is a source of both, procedural and substantive rights. The person
seeking to invoke the doctrine must be aggrieved and must have altered his position. The
doctrine of legitimate expectation assures fair play in administrative action and can always be
enforced as a substantive right. Whether or not an expectation is legitimate is a question of
fact.”

⮚ The limits of the application of the Doctrine of Legitimate Expectations

1. “In India the doctrine has been under article 14 of the Constitution. Under this article the
constitutional provision imposes the duty to act fairly on all public authorities and therefore,
people can have legitimate expectation that they will be treated fairly by the states.”

2. Also Supreme Court of India in the case of Food Corporation of India v. Kamdhenu Cattle
feed Industries, the court states that “in all the state actions, the state and its instrumentalities
have to conform to Art. 14 of the Constitution of which non-arbitrariness is a significant
fact.”

3. Whenever there is a dispute between the interests of the individual or public interest at
large scale is involved, the decision will always be in the favour of the public interest. As the
larger public interest is of more importance and outweigh the legitimate expectation of the
respondent.

4. Another field where the doctrine of Legitimate Expectation does not apply is the
contractual field.

5. “The doctrine of legitimate will not be applicable against the public authorities when their
mistaken advice or representation is found to be in breach of status and thus, against public

interest as regards for the public welfare is the highest law and the law does not compel a
man to do that which he cannot possibly perform.”

⮚ Rationales underlying the concept of legitimate expectations

▪ The doctrine of legitimate expectation is based on established practice ▪ A total stranger

unconnected with the authority or a person, cannot invoke the doctrine of legitimate
expectation, merely on the ground that the authority has a general obligation to act fairly. ▪ A
legitimate expectation, even when made out, does not always entitle the expectant to a relief.
Public interest, change in policy, conduct of the expectant or any other valid or bonafide
reason given by the decision maker, may be sufficient to negative the 'legitimate
expectation'.”

⮚ The Supreme Court of India: ▪ “The expectation should be legitimate, that is, reasonable,
logical and valid. Any expectation which is based on sporadic or casual or random acts, or
which is unreasonable, illogical or invalid cannot be a legitimate expectation. ⮚ “This
doctrine is rooted in fairness. ▪ It is not just procedural in nature but substantive in nature as
well. It is not just locked merely to hear the claims. ▪ It applies to the area of policy making
as well.” [27] ▪ It may be noted that SEDLEY, J. insisted that legitimate expectation is in
reality a question of fairness in public administration.

 Doctrine of public accountability

Public accountability pertains to the obligations of persons or entities entrusted with public
resources to be answerable for the fiscal, managerial and program responsibilities that have
been conferred on them, and to report to those that have conferred these responsibilities.
From this definition of public accountability, it is clear that the public entities that utilize
public resources have an obligation to account for the way these resources are allocated, used
and the results these spending have achieved. The main objectives of all public accountability
initiatives are to ensure that public money is spent most economically and efficiently, that
there is minimum of wastage or theft and finally that public actually benefit from public
finance. Doctrine of Public Accountability has been materialising steadily as a facet of
administrative law. The development of this doctrine is key in establishing a check in the
increase of misuse of power by government servants and provision of a just and speedy relief
to people who may have suffered at the hands of such exploitation. The premises of this
doctrine is that the administrative authorities power and discretion is a public trust placed in
their hands and should be exercised in realisation of such conviction. Attorney General of
Hong Kong v Reid (1993) In this case, a prosecutor appointed by the Crown was paid in
bribes for burying criminal cases. With that bribe money, he purchased certain properties. It
was held by the court that a gift received and accepted by a public officer as payment to
breach his public duties is a bribe. Further, it was held that there existed a fiduciary duty,
therefore, the owners are constructive trustees of the Crown. This meant that money was
owed to the person who had suffered by the fiduciary, and he had to hold money acquired as
a constructive trust.

In India, public accountability is a product of its federal structure, consisting of a two-way

process:

1. Upward accountability: Control of the government, such as the jurisdiction to dissolve,

approve and audit fiscal plans of administrative authorities.

2. Downward accountability: This is a weaker authority, as it rests with the public only
through the power of the electoral process. Medical Council of India Case In Dr. Ketan Desai
v The State (2010), a petition was filed against Ketan Desai, Medical Council of India
President, for large scale bungling in medical admissions of medical colleges in Pune,
Ghaziabad, and Punjab as well as granting them recognition. Details of an income tax raid
were presented in the petition, wherein it showed the existence of an unexplained receipt of
6.5 million rupees through bank drafts in wife’s, daughter’s name. It was held that since, the
objective of the Medical Council is to maintain uniform standards of the Council and
recognise/de-recognise medical colleges on the basis of such standards, Desai’s actions came
directly under the ambit of a public servant. It was ruled that Ketan Desai had taken
advantage of his position and misused such power as president. He was removed from the
position as well as the office and also penalised with fine and custody. Through such
incidents, the public is defrauded while public servants benefit themselves.

Vineet Narain & Others vs. Union of India & Another (1998) 1 SCC 226: This case
concerns the historic Hawala scandal in India, which uncovered possible bribery payments to
several high-ranking Indian politicians and bureaucrats from a funding source linked to
suspected terrorists. Following news coverage of the scandal, members of the public were
dismayed by the failure of the Central Bureau of Investigation (CBI) to initiate investigations
of the officials with the apparent intent to protect certain implicated individuals who were
extremely influential in government and politics. This litigation was the result of public
interest petitions filed on these matters with the Court pursuant to Article 32 of the Indian
Constitution. The Court agreed that the CBI had failed in its responsibility to investigate
allegations of public corruption. It laid down guidelines to ensure independence and
autonomy of the CBI and ordered that the CBI be placed under the supervision of the Central
Vigilance Commission (CVC), an independent governmental agency intended to be free from
executive control or interference. This directive removed the CBI from the supervision of the
Central Government thought to be partly responsible for the inertia that contributed to the
CBI’s previous lack of urgency with respect to the investigation of high-ranking officials.
The CVC was now responsible for ensuring that allegations of corruption against public
officials were thoroughly investigated regardless of the identity of the accused and without
interference from the Government.

 Doctrine of Proportionality

The doctrine of proportionality is of European origin and has been characterised as the most
important general legal principle in the European Administrative Law. The principle of
proportionality envisages that a public authority ought to maintain a sense of proportion

between his particular goals and the means he employs to achieve those goals, so that his
action impinges on the individual rights to the minimum extent to preserve the public interest.
This means that administrative action ought to bear a reasonable relationship to the general
purpose for which the power has been conferred. The implication of the principle of
proportionality is that the court will weigh for itself, the advantages and disadvantages of an
administrative action. Only if the balance is advantageous, will the court uphold the
administrative action. The Administration must draw a balance—sheet of the pros and cons
involved in any decision of consequence to the public and to individuals. The principle of
proportionality envisages that an administrative action could be quashed if it was
disproportionate to the mischief at which it was aimed. The measures adopted by the
Administration must be proportionate to the pursued objective. An administrative authority
while exercising a discretionary power should maintain a proper balance between any adverse
effects which its decision may have on the rights, liberties or interests of persons and the
purpose which it pursues. All in all, it means that the decision - maker must have a sense of
proportion.

In Ranjit Thakur v. Union of India &Ors. (1987) 4 SCC 611, this Court was dealing with a
case where the petitioner had made a representation about the maltreatment given to him
directly to the higher officers. He was sentenced to rigorous imprisonment f or one-year f or
that offence. While serving the sentence imposed upon him, he declined to eat food. The
summary court martial assembled the next day sentenced him to undergo imprisonment f or
one more year and dismissal from service. This Court held that the punishment imposed upon
the delinquent was totally disproportionate to the gravity of the offence committed by him.

In Union of India V. R.K. Sharma, the Supreme court has again laid down the principle as
follows: The court cannot while exercising power under Art. 32/226 interferes with the
punishment because the court considers it to be disproportionate. "It is only in extreme cases,
which on their face show perversity or irrationality that there can be judicial review. Merely
on compassionate grounds a court should not interfere". The court thus interferes when the
quantum of punishment is "shockingly disproportionate, or it shocks the conscience of the
court. The following cases illustrate the point: (i) The appellant was removed from
government service on the ground of misconduct. Taking the kind of misconduct in view, the
Supreme Court characterized the punishment of removal from service as arbitrary and
quashed the order in question.
 UNIT 6

 Constitutional Validity of Tribunals – Tested in S .P. Sampat Kumar v. Union of

India

The social philosophy of the Constitution, as reflected in the Preamble as well as Part IV,
signifies the essence of the administrative process. Yet, administrative law did not receive
any separate recognition in our country, prior to the forty second constitutional amendment,
1976. This was in spite of the fact that the first law commission setup way back in 1955 felt
the necessity of setting up of tribunal. The Commission had recommended that appeals from
quasi-judicial bodies on facts should lie to an independent Tribunal. It observed that such
tribunals ought to be presided over by a person qualified to be a judge of the High Court and
be assisted by a person or persons having administrative and technical knowledge.

⮚ However, the Law Commission did not favour the system of administrative courts as it
wanted review of administrative action to remain unimpaired with the High Courts. The
Commission further recommended that;

i. judicial, quasi-judicial and administrative decisions should be clearly demarcated;

ii. in the case of judicial and quasi - judicial decisions, appeal or revision should lie on a
question of Law;

iii. an administrative division of the High Court may be established, if necessary,

administrative decisions should be accompanied by reasons in writing;

iv. a tribunal delivering administrative judgment should conform to the principles of natural
justice and should act with openness, fairness and impartiality;

v. legislation providing for simple procedure embodying the principles of natural justice for
the functioning of all tribunals may be passed.

• A committee under the Chairmanship of Justice Shah, appointed in 1969 addressed itself to
the issue of pending service cases. It came up with a recommendation, advising the
Government to set up an independent Tribunal to handle service cases, pending before the
Supreme Court. At this point of time, the Administrative Reforms Commission under the
Chairmanship of Morarji Desai also addressed itself to the issue. The Administrative Reforms
Commission too recommended the setting of Civil Services Tribunals to deal with appeals of
government servants, against disciplinary action.

• In spite of the above recommendation, the Central Government addressed the matter further
as a major chunk of service litigations related to matters other than disciplinary action. A few
years later, the matter came to be considered by the Swaran Singh Committee in the year,
1976. This committee too came up with the recommendation for setting up of separate
administrative tribunals for certain matters. The very same year the matter also came to be
considered by a conference of chief secretaries of the States.
▪ The Government finally introduced the constitution forty second amendment in Parliament
in the year 1976. Clause 46 of the aforesaid amendment came to be introduced providing for
Articles 323A and 323B by way of an innovation under Part XIV-A to the Constitution. The
constitutional amendment thus provided for a new chapter relating to tribunals.

⮚ In view of the importance of Article 323A, providing for the setting up of administrative
tribunals, the same is quoted in extensio:

a) To enable Parliament to make an enactment for the constitution of Administrative

Tribunals for adjudication of disputes in regard to service matters, b
b) To make the enactment in conformity with the guideline set out in clauses (a) to (g) of
sub-section (2) of the Article,
c) To exclude the jurisdiction of all courts except the Supreme Court especially the High
Courts to entertain writ petitions as well as appeals from the decisions,
d) Administrative Tribunal and lower courts as the Administrative Tribunals are now being
given the sole authority to decide the fact in all matters concerning his service conditions.

• Vide 42nd amendment in the Constitution of India Articles 323 A and 323B were
added.(effective from 03.01.1977).

• Art.323A provides for the establishment of Administrative Tribunals by the Parliament for
adjudication of service matters. Article 323B provides for the establishment of Tribunals, to
adjudicate on the matters with regard to which the respective State Legislature has power to
make laws, as specified in Article 323B(2).

• After the 42nd amendment, The Administrative Tribunals Act,1985 was enacted under
which Central Administrative Tribunal was established.

⮚ Administrative Tribunal Act, 1985

• After almost a decade of the constitutional amendment which incorporated Article 323A in
the Constitution, the Government piloted the Administrative Tribunals Bill before Parliament
. The statement of objects and reasons while stressing the need for speedy disposal of cases,
clearly admits of the pendency of a large number of cases relating to service matters before
the various courts

• Pursuant to the passing of the Administrative Tribunals Act, 1985 the vires of the legislation
came to be challenged before the Supreme Court in the case of S .P. Sampat Kumar v. Union
of India . Various provisions of the Act, along with the constitutional validity of Article
323A came up for adjudication before the Supreme Court. It was also the contention of the
petitioner, that the writ jurisdiction of the High Court could not be taken away by any
constitutional amendment.

• After an interim order by a division bench of the apex court, the matter came up before a
Constitution Bench of the Supreme Court. In the mean time certain amendments were
effected in respect of the Administrative Tribunals Act, 1985 in compliance with the interim
order of the apex court.
• While upholding the constitutional validity of Article 323A as well as the impugned Act,
(as amended) the Supreme Court observed that, the Constitution permits Parliament to
abrogate the jurisdiction of the High Courts under Article 226 and 227, provided the same
happens to be exercised effectively and efficiently by a closely comparable institution or
body.

• In so holding, the Apex Court made the following observation,"(W)hat, however, has to be
kept in view is that the Tribunal should be a real substitute for the High Court not only in
form and dejure but in content and de facto". It has to be ensured “that the substitute
institution-the Tribunal must be a worthy successor in all respects."

 Case Laws

 S.P. Sampath Kumar v. Union of India ( AIR 1987 SC)

• The petitioners in these writ petitions and transfer petitions challenged the Constitutional
validity of the 1985 AT Act. It was contended that the exclusion of the jurisdiction of the
High Court under Arts. 226 and 227 in service matters specified in Sec.28 of the Act was
unconstitutional and void, and that the composition of the Tribunal and mode of appointment
of Chairman, Vice-Chairman and Members was outside the scope of the power conferred on
Parliament under Art. 323-A.

▪ The SC held that it is the High Court which is being supplanted by Administrative Tribunal.
The office of Chairman of the Tribunal, therefore, for all practical purposes should be
equated with the office of the Chief Justice of a High Court. Judicial discipline generated by
experience and training in an adequate dose is a necessary qualification for that post. It is thus
essential that he should have been a Judge of the High Court or he should have for at least
two years held office as Vice Chairman.

▪ A person who has merely held the post of Secretary to the Government of India and who
has no legal and judicial experience if appointed, Chairman would not only fail to inspire
confidence in the public mind but would also render the Administrative Tribunal a much less
effective and efficacious mechanism than the High Court. Thus, the Supreme Court has
struck down Clause (c) of Sec.6(1) of the Administrative Tribunals Act, 1985 pertaining to
the appointment of an administrative member as a Chairman under the AT Act, 1985.

 Sambamurthy v. State of A.P.(1987) SCC 386

▪ Article 371-D was introduced in the Constitution by the Constitution (Thirty-Second

Amendment) Act 1973, which came into force with effect from 1st July, 1974, and pursuant
to c1.(3) thereof the President of India made an order on 19th May, 1975 constituting a,
Administrative Tribunal for the State of Andhra Pradesh with jurisdiction to deal with service
matters specified in that order.
▪ In these petitions under Art. 32, the petitioners challenged the validity of cl. (3) & (5) of
Art. 371-D. However, challenge to cl. (3) was not pressed and arguments confined only to cl.
(5).

▪ Clause (5) which says that “the State Government may by special order made in writing for
reasons to be specified therein, modify or annual any order of the Administrative Tribunal
before it becomes effective and in such a case, the order of the Administrative Tribunal shall
have effect only in such modified form or be of no effect.”

▪ The SC held that it would be open to the State Government, after it has lost before the
Administrative Tribunal, to set aside the decision given by the Administrative Tribunal
against it. Such a provision is, to say the least, shocking and is clearly subversive of the
principles of justice. A party to the litigation cannot be given the power to over-ride the
decision given by the Tribunal. It would be violating the basic concept of justice and make a
mockery of the entire adjudicative process. Not only is the power conferred on the State
Government to modify or annul the decision of the Administrative Tribunal starting and
wholly repugnant to the notion of justice but it is also a power which can be abused or
misused.

▪ The SC further held that, if the exercise of the power of judicial review can be set at naught
by the State Government by overriding the decision given against it, it would sound the death
knell the rule of law. The rule of law would be meaningless as it would be open to the State
Government to defy the law and yet to get away with it. The Proviso to cl.(5) of Art. 371-D
is, therefore, violative of the basic structure doctrine and must be struck down.

 J.B. Chopra v. Union of India ( 1987) SCC 422

• In this special leave petition a question was raised regarding the authority and jurisdiction of
the Central Administrative Tribunal constituted under the Administrative Tribunals Act, 1985
to strike down as constitutionally invalid a rule framed by the President of India under the
proviso to Article 309 of the Constitution as being violative of Articles 14 and 16(1) of the
Constitution. That depends on a construction of Sections 14(1), 28 and 29(1) of the Act, as
amended, read in the light of Article 323A of the Constitution.

• In S.P. Sampath Kumar v. Union of India and Ors. the Constitution Bench has held that the
Act is a law made by Parliament under Clause (1) of Article 323A to exclude the jurisdiction
of the High Courts Under Articles 226 and 227 of the Constitution. Section 28 of the Act
which bars the jurisdiction of all courts except the Supreme Court is relatable to Clause 2(d)
of Article 323A for adjudication of service matters including questions involving the validity
or otherwise of such laws on the ground that they abridge the fundamental rights under
Articles 14 and 16(1) of the Constitution, and that the Administrative Tribunal set up under
Section 4 of the Act is a substitute of, and not supplemental to, the High Court providing an
equally efficacious alternative remedy for adjudication of such disputes.
• It has further held that the establishment of the Administrative Tribunal under the Act
therefore takes away the jurisdiction and power of the High Court to interfere in such matters
but it is not violative of the doctrine of judicial review which is a fundamental aspect of the
basic structure of our Constitution because Section 28 of the Act which bars the jurisdiction
of the High Court under Articles 226 and 227 of the Constitution preserves the jurisdiction
and power of the Supreme Court under Articles 32 and 136 of the Constitution.

• It accordingly follows that the Administrative Tribunal being a substitute of the High Court
had the necessary jurisdiction, power and authority to adjudicate upon all disputes relating to
service matters including the power to deal with ail questions pertaining to the constitutional
validity or otherwise of such laws as offending Articles 14 and 16(1) of the Constitution.

 Sakinala Harinath v. State of A.P. ( 1993)

• In this the constitutional validity of Article 323-A (2) (d) was challenged as unconstitutional
since it destroys the basic structure of the Constitution; the Constitution vests judicial power
of the State in the Supreme Court and the High Courts under Articles 32,226 and 227 and any
interference with that power would amount to destroying the basic and essential feature of the
Constitution.

• The SC held that Article 323-A(2)(d) of the Constitution of India is unconstitutional to the
extent it empowers Parliament, by law, to exclude the jurisdiction of the High Court under
Article 226 and consequently, we further declare that Section 28 of the Administrative
Tribunals Act, 1985 to the extent it divests the High Court of its jurisdiction under Article
226 is unconstitutional.

 L. Chandra Kumar v. Union of India ( AIR 1995 SC 1151)

• There were special leave petitions, civil appeals and writ petitions regarding to the
constitutional validity of Article 323A (2)(d) and Article 323B (3)(d) and also with reference
to the constitutional validity of the Administrative Tribunals Act, 1985; and also there was
challenge regarding whether the Tribunals constituted under Part XIV A of the Constitution
of India can be effective substitutes for the High Court in discharging the power of judicial
review?

⮚ Issues:

1) Whether the Tribunals constituted either under Article 323A or under Article 323B of the
Constitution, possess the competence to check the constitutional validity of a statutory
provisional or rule?

1) Whether these Tribunals, as they are working at present, can be said to be effective
substitutes for the High Courts in discharging the power of judicial review? If not, what are
the changes needed to create them to change to their founding objectives?
 3) Whether the power given to Parliament or State Legislatures, as the case may be, by
Article 323A(2)(d) or by Article 323B(3)(d) of the Constitution, wholly exclude the
jurisdiction of all Courts, except that of the Supreme Court under Article 136, in respect of
disputes and complaints said in Article 323A(1) or with relation to all or any of the matters
laid out in Article 323B(2) runs counter to the power of judicial review given to the High
Courts under Article 226/227 and on the Supreme Court under Article 32 of the Constitution?

• The Court held that Section 28 of the Administrative Tribunals Act, 1985 and the
“exclusion of Jurisdiction” clauses in all other Legislations enacted under the aegis of Article
323A and 323B would, to the extend that they exclude the jurisdiction of the High Courts (
under Articles 226 and 227) and the Supreme Court ( under Article 32) would be ultra vires
the Constitution. • In exercising their powers such tribunals cannot act as substitutes for High
Courts and the Supreme Court. Their decision are going to be subject to scrutiny by a
Division Bench of the concerned High Courts i.e., all decisions of these Tribunals ( tribunals
created under Articles 323A and 323B of the Constitution of India) are going to be subject to
scrutiny before a Division Bench of the High Court within whose Jurisdiction the involved
tribunal falls.

 Distinction between Tribunals and Courts

Courts Administrative Tribunals

A Court of law is a part of the traditional The administrative tribunal is an agency

judicial system created by a statue endowed with judicial
powers.
A Court of law is vested with general It deals with service matters and is vested
jurisdiction over all the matters. with limited jurisdiction to decide a particular
issue.
It is strictly bound by all the rules of It is not bound by the rules of the Evidence
evidence and by the procedure of the Code of Act and the CPC unless the statute which
Civil Procedure. creates the tribunal imposes such an
obligation
It is presided over by an officer expert in the It is not mandatory in every case that the
law. members need to be trained and experts in
law
The decision of the court is objective in The decision is subjective i.e. at times it may
nature primarily based on the evidence and decide the matters taking into account the
materials produced before the court. policy and expediency

It is bound by precedents, the principle of res It is not obligatory to follow precedents and
judicata and the principle of natural justice. principle of res judicata but the principle of
natural justice must be followed.
It can decide the validity of legislation It cannot decide the validity of legislation.

The courts do not follow investigatory or Many tribunals perform investigatory

inquisition functions rather it decides the case functions as well along with its quasi-judicial
on the basis of evidence. functions.

 Reasons for growth of adjudication

⮚ Reasons for the growth of Administrative Adjudication

1. Vast expansion of State activity like industrialisation, agriculture, education, health,

planning, social security, transport etc.

2. The desire to provide a system of adjudication which was informal, cheap and quick.

3. Litigation before a court of law is not only time consuming but is a luxury of the rich.

4. The need to explore new public law standards based on moral and social principles away
from the highly individualistic norms developed by courts.

5. In law there is growing emphasis on preventive justice rather than punitive. ⮚ e.g., if it is
necessary that the injury done to the person is to be remedied, it is equally necessary that the
chances of injury must be eliminated.

6. Administrative adjudication also represents a functional approach to law. Justice lies not in
disposal of the case according to law but in fair disposition. ⮚ e.g., licensing, nationalisation,
fixing priorities in planning and action on the ground of policy considerations etc.

7. In a 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.

8. The courts are already groaning the weight of pending cases and as such, if the whole mass
of fresh litigation arising in an intensive form of Govt. is diverted towards them, the judicial
system would virtually collapse.

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UNIT 7
 Private Law Remedies

1. Injunction

▪ Sections 36 to 46 of the Specific Relief Act, 1963 govern the grant of injunctive relief.

▪ Injunction may be defined as an ordinary judicial process that operates in personam by

which any person or authority is ordered to do or to refrain form doing a particular act which
such person or authority is obliged to do or to refrain from doing under any law.
▪ The Court in its proceedings for injunction can review all actions-judicial, quasi-judicial,
administrative, ministerial, or discretionary.

a) Temporary injunction

▪ Injunction is categorized in two form i.e. Permanent Injunction and Temporary Injunction.
Section 37 of Specific Relief Act, 1963 provides that "temporary Injunction are such as are to
continue until a specified time, or until the further order of the court, and they may be granted
at any stage of a suit." ▪ The procedure for seeking temporary injunction has been provided
under Order XXXIX of the Code of Civil Procedure, 1908. However, an injunction being
discretionary equitable relief cannot be granted when equally efficacious relief is obtainable
in any other usual mode or proceeding

b) Perpetual injunction

• Perpetual injunction is granted on the final determination of the case to prevent

infringement of those rights to which the plaintiff is entitled permanently. U/s 38 of the
Specific Relief Act, 1963. A perpetual injunction may be granted to prevent the breach of an
obligation existing in favour of the applicant, whether expressly or by necessary implication,
or to prevent a breach arising from a contract, or to prevent the invasion of the right to or
enjoyment of the property, if the defendant is a trustee; or were there is exists no standard to
ascertain damages, or money, and compensation would not be an adequate relief, or where it
is necessary to prevent the multiplicity of suits.

▪ The jurisdiction of Indian courts to issue injunctions is statutory.

⮚ Injunctions will not be granted: a) to restrain a person from instituting or prosecuting any
judicial proceeding, civil or criminal; b) to restrain any person from petitioning to any
legislative body; c) to prevent the breach of a contract which cannot be specifically enforced,
i.e., service contracts.

2. Declaration (Ss.34 and 35 of Specific Relief Act, 1963)

▪ A declaratory action may be defined as a judicial remedy which conclusively determines the
rights and obligations of public and private persons and authorities without the addition of
any coercive or directory decree. ▪ Declaratory suits can also be filed against government
bodies, local authorities, and statutory authorities. Declaration can be issued by the Courts in
matter dealt with by the administrative authorities where entitlement to any legal character or
right is involved. Suits can be filed seeking declaration that acts or orders of municipal or
local authorities are ultra virus.

⮚Conditions for the grant of declaratory relief:

a. The person must be entitled to a legal character or to a right to any property

▪ Legal character – position, profession, marital status, sex, minority, legitimacy, nationality,
franchise etc… Therefore, the right to stand for public election or the right to get an election
declared invalid may be subject of declaratory relief.
▪ The right to property may include any right which is not a mere hope or chance or which is
not contractual in nature.

b. There must be some danger or detriment to such right or character

▪ There must be some person or authority, public or private, either interested in denying such
character or right or must have actually denied it.

⮚ Plaintiff must seek further relief if he entitled for it.

State of M.P. v. Mangilal Sharma ( AIR 1998 SC 510)

• The respondent was employed as a Clerk Grade I in the Irrigation Department of the
appellant and was posted at Gandhi Sagar. He was transferred to Jabalpur. He handed over
his charge at Gandhi Sagar. Respondent represented that due to acute illness of his father he
might be transferred to Mandsore, a place near his home town to enable him to look after his
father. His request was not acceded to. This led the respondent to submit his resignation. He
was not informed if the resignation had been accepted.

• The respondent had filed a suit for declaration under Sec. 34 of the Specific Relief Act,
1963 that he continues to be in service but did not claim consequential benefit like arrears of
salary. The court granted a declaration but the respondent in execution proceedings had
claimed consequential benefits.

3. Suit for damages

• The purpose of awarding damages is to repair the pecuniary or non-pecuniary harm inflicted
upon the complainant because of administrative wrongs. The worth mentioning point here is
that damages may not be awarded to the complainant on the mere ground that she/he has
suffered some sort of compensable injury due to the act of an administrative body, which is
found to be ultra vires in a judicial review.

▪ Sec.9 of CPC declares that a civil court shall have jurisdiction to try all suits of a civil
nature excepting suits in which their cognizance is either expressly or impliedly barred.

4. Affirmative action for the enforcement of public duties

⮚ Municipal Council, Ratlam v. Vardichan( AIR 1980 SC 1622) ▪ Neglect of public duties
by Municipal Council - Sec.133 of Cr.P.C. Conditional order for removal of nuisance - (The
object and purpose behind Section 133 of the Code of Criminal Procedure, 1973 is essentially
to prevent nuisance and involves a sense of urgency in the sense that if the Magistrate fails to
take recourse immediately irreparable danger would be done to the public.)

 Constitutional Remedies

▪ Under the Constitution, the following remedies are available to a person aggrieved by an
action of administrative authority.
a) Extraordinary remedies

▪ An aggrieved party has a right to approach the SC U/A 32 or a HC U/A 226 of the
Constitution for an appropriate writ or order, or direction. They are extraordinary or
prerogative remedies.

b) Appeals to Supreme Court

⮚ Articles 132 to 135 of the Constitution deal with appellate powers of the SC in
constitutional matters and in civil and criminal cases.

• Art. 132 allows an appeal to the SC from a judgment of the High Court from any judgment,
decree or final order if the High Court provides a certification for the same if the case
involves questions of law of Constitutional importance.

• Art. 133 allows appeals from any judgment, decree or final order in civil proceedings
subject to the provisions of the Article.

• Similarly Art. 134 allows appeals from any judgment, decree or final order in criminal
proceedings subject to the provisions of the Article.

• Article 135 in the Constitution enables the Supreme Court to exercise jurisdiction in cases
which were not covered by Articles 133 and 134, in respect of matters where the Federal
Court had jurisdiction to entertain appeals, etc. from the High Courts under the previously
existing law.

c) Transfer of case to Supreme Court ▪ Article 139-A enables the SC to withdraw or transfer
of cases from one or more High Courts to itself or to any other HC.

d) Advisory jurisdiction of the Supreme Court ▪ Article 143 of the Constitution enables the
President to consult the SC and seek its opinion on any question of law or fact of public
importance.

Laches in writ Jurisdiction:

⮚ Laches or unreasonable delay is defined as: ▪ Failure to do something at the proper time,
especially such delay will bar a party from bringing a legal proceeding. ▪ It is principally a
question of inequity of permitting claim to be enforced.

⮚ Laches as a self – defense ⮚ Laches acts as a defense to an equitable action, that bars
recovery by the plaintiff because of the plaintiff's undue delay in seeking relief. Laches is the
equitable equivalent of statutes of limitations. However, unlike statutes of limitations, laches
leaves it up to the court to determine, based on the unique facts of the case, whether a
plaintiff has waited too long to seek relief.

▪ The concept of Laches is based on the legal maxim "Equity aids the vigilant, not those who
slumber on their rights." Laches recognizes that a party to an action can lose evidence,
witnesses, and a fair chance to defend himself or herself after the passage of time from the
date the wrong was committed. If the defendant can show disadvantages because for a long
time he or she relied on the fact that no lawsuit would be started, then the case should be
dismissed in the interests of justice.

⮚ Laches includes

▪ It is a form of delay for such time as to constitute acquiescence(the reluctant acceptance of

something without protest). ▪ Delay such as to preclude court from arriving at a safe
conclusion as to truth. ▪ Delay that makes it inequitable to accord relief sought. ▪ Delay that
warrants presumption that party has waived his right. ▪ Delay that works or results in
disadvantage, injury, injustice, detriment or prejudice. ▪ Failure to prosecute claim within
reasonable and proper period. ▪ It is implied waiver from knowledge of existing conditions
and acquiescence in them. ▪ Inexcusable delay in assertion of rights. ▪ It is lack of diligence
on part of plaintiff to injury, prejudice, or disadvantage of defendant. ▪ Lapse of time and
acquiescence in alleged wrong. ▪ Lapse of time together with change in condition or relation
of parties. ▪ Lapse of time together with prejudice or lapse such that prejudice will be
presumed.

⮚ Laches and Judicial Review

▪ Courts are not bound by imitation law because cases can be refused on ground of
unreasonable delay because the extra ordinary remedy is discretionary. ⮚ Brijesh Kumar &
Ors. v. State of Haryana & Ors. (SPECIAL LEAVE PETITION (CIVIL) NOS.6609-6613 of
2014) ▪ The land of the petitioners along with the lands of others admeasuring 134 acres, 5
kanals and 10 marlas situate in revenue estate of village Manakpur, Hadbast No.386, Tehsil
Jagadhri, District Yamuna Nagar stood notified under Section 4 of the Act on 8.9.1993. In
respect of the same, the award was made by the Land Acquisition Collector on 8.10.1997
assessing the market value of the land of the petitioners @ Rs.1,75,000/per acre. ▪ Aggrieved,
the petitioners and other persons interested filed references under Section 18 of the Act for
enhancement of compensation and the Reference Court made the award on 7.9.2001
assessing the market value of the land @ Rs.1,85,000/- per acre and they were also given
other statutory benefits. ▪ Aggrieved, some of the persons interested filed appeals before the
High Court, however, petitioners had chosen not to file appeal at the initial stage but filed the
same in the year 2012 after a lapse of 10 years 2 months and 29 days. The High Court refused
to condone the delay in spite of the fact that other persons who had preferred the appeals in
time had been given a higher compensation. ▪ In view of the facts of the case, the SC didn’t
not find any fault with the impugned judgment. The petitions lack merit and are accordingly
dismissed.

⮚Difference Between Article 32 and Article 226

• The rights guaranteed by Article 32 can only be exercised for the enforcement of
fundamental rights only whereas the rights conferred under Article 226 of the Constitution
can be exercised not only for the enforcement of fundamental rights but for ‘any other
purpose’. The expression ‘and for any other purpose’ in Article 226 will include the
enforcement of ordinary legal right which do not amount to fundamental rights. Thus the
power under Article 226 are wider than those under Article 32. • The order under Article 32
will supersede the order passed by the High Court under Article 226 of the Constitution. • An
application under Article 226 may always be made first to Supreme Court since Article 32 is
itself a Fundamental Right. It is Substantive right not a mere procedural right. There is no
need to resort to High Court before approaching the Supreme Court under Article 32.

⮚ Basheshar Nath v. The Commissioner, Income Tax [1955] 1 S.C.R. 448) ⮚ The two
questions for determination in this appeal were, (1) whether a settlement under s. 8A of the
Taxation of Income (Investigation Commission) Act, 1947, made after the commencement of
the Constitution was constitutionally valid, and (1) whether the waiver of a fundamental right
was permissible under the Constitution.

⮚ The SC held that, “A large majority of people are socially poor educationally backward
and politically yet not conscious of their rights, cannot be pitted against the State or the
institution or they cannot be put on equal status with the State or large organizations. The
people are require to be protected from themselves. It is therefore the duty of the court to
protect their rights and interests. Fundamental rights are therefore transcendental in nature
and created and enacted in national and public interest and therefore they cannot be waived.”

• In Daryao v. State of U.P. (AIR 1959 SC 276) it was held that the right to obtain a writ
must equally be a fundamental right when a petitioner presents the case. Thus, it cannot
merely be considered as an individual’s right to move the Supreme Court but it is also the
duty and responsibility of the Supreme Court to protect the fundamental rights. • In this
leading case, the Supreme Court has exhaustively dealt with question of applicability of the
principle of Res Judicata in writ proceedings.

⮚ Asst. Collector of Central Excise v. Dunlop India Ltd. (AIR 1985 SC 330) • The
Government of India by a notification dated 6th April, 1984 exempted tyres from a certain
percentage of Excise Duty to the extent that the manufacturers had not availed themselves of
the exemption granted under certain other earlier notifications. • The Customs and Excise
Department was of the view that the respondent-company who was a manufacturer of Tyres,
Tubes and various other rubber products was not entitled to the aforesaid exemption as it had
cleared the goods earlier without paying Central Excise Duty but on furnishing Bank
Guarantees under various interim orders of courts. • In this case, the Supreme Court held that
“Article 226 is not meant to short-circuit or circumvent statutory procedures. It is only where
statutory remedies are entirely ill-suited to meet the demands of extraordinary situations, as
for instance where the vires of the statute is in question or where private or public wrongs are
inextricably linked and the prevention of public injury and the vindication of public justice
requires it, that recourse may be had to Article 226 of the Constitution. A writ will not
ordinarily be issued by the Court where the impugned order, not patently erroneous, is made
by an authority within his jurisdiction.”

⮚ Nature and scope of Special Leave Petition • Special Leave Petitions in India (SLP) holds
a prime place in the Judiciary of India, and has been provided as a "residual power" in the
hands of Supreme Court of India to be exercised only in cases when any substantial question
of law is involved, or gross injustice has been done. It provides the aggrieved party a special
permission to be heard in Apex Court in appeal against any judgment or order of any
Court/tribunal in the territory of India (except military tribunal and court martial).

• The Constitution of India under Article 136 vests the Supreme Court of India, the apex
court of the country, with a special power to grant special leave, to appeal against any
judgment or order or decree in any matter or cause, passed or made by any Court/tribunal in
the territory of India. It is to be used in case any substantial constitutional question of law is
involved, or gross injustice has been done. • It is discretionary power vested in the Supreme
Court of India and the court may in its discretion refuse to grant leave to appeal. The
aggrieved party cannot claim special leave to appeal under Article 136 as a right, but it is
privilege vested in the Supreme Court of India to grant leave to appeal or not.

⮚ Limitation on SLP • SLP can be filed against any judgment or decree or order of any High
Court /tribunal in the territory of India; or, SLP can be filed in case the High court refuses to
grant the certificate of fitness for appeal to Supreme Court of India.

• SLP can be filed against any judgment of High Court within 90 days from the date of
judgment; or SLP can be filed within 60 days against the order of the High Court refusing to
grant the certificate of fitness for appeal to Supreme Court.

• Any aggrieved party can file SLP against the judgment or order of refusal of grant of
certificate

⮚Pritam Singh v. The State (AIR 1950 SC 169)

• This was an appeal by special leave from a judgment and order of the High Court of
Judicature for the Province of East Punjab at Shimla dated the 23rd November, 1949, in
Criminal Appeal No. 367 of 1949 upholding the conviction of the appellant on a charge of
murder and confirming a sentence of death passed on him by the Sessions Judge of
Ferozepore.

▪ In this case the Supreme Court laid down the broad principles within which it would
exercise its jurisdiction in granting special leave under this Article. The Court observed:

• "On a careful examination of Article 136 along with the preceding article, it seems clear that
the wide discretionary power with which this Court is invested under it is to be exercised
sparingly and in exceptional cases only, and as far as possible a more or less uniform
standard should be adopted in granting special leave in the wide range of matters which can
come up before it under this article. By virtue of this article, we can grant special leave in
civil cases, in criminal cases, in income tax cases, in cases which come up before different
kinds of tribunals and in a variety of other cases. The only uniform standard which in our
opinion can be laid down in the circumstances is that the Court should grant special leave to
appeal only in those cases where special circumstances are shown to exist.”

⮚ Dhakeswari Cotton Mills v. C.I.T (AIR 1955 SC 65)

▪ The SC in this case observed that “the whole intent and purpose of this Article is that it is
the duty of this court to see that injustice is not perpetuated or perpetrated by decisions of
courts and tribunals because certain laws have made the decisions of these courts or tribunals
final and conclusive.”

⮚ Union Corbide Corpn. v. UOI (AIR 1992 SC 317)

▪ The SC held that the powers conferred on the SC U/A 136 of the Constitution are in the
nature of special is residuary powers exercisable in cases where needs of justice demand
interference.

 Exclusion of Jurisdiction

▪ In general, specific provisions will be incorporated into statutes that allow filing of an
appeal or revision against the orders passed by an administrative officer before the statutory
authority or an administrative tribunal.

▪ However, in some Acts, the Legislation intentionally excludes judicial review by

incorporating certain phrases called Finality Clauses. The clauses puts the judicial system out
from reviewing them and hence these clauses are also called Ouster Clauses. Such process is
called Statutory Finality.

▪ These are more often seen in Administrative Acts wherein the statute says that the decision
by administrative body is final and conclusive. No appeal, revision or reference against the
decision of such tribunal is maintainable. The jurisdiction of Civil Courts is ousted.

⮚Exclusion of Jurisdiction

1. Finality clauses.

2. Shall be conclusive evidence.

3. Shall not be called in question in any court.

1. ‘Finality clauses’

a. Sometimes no provision is made for filing any appeal, revision or reference to any higher
authority an order passed by the administrative tribunal or authority.

b. Sometimes an order passed by the authority by the administrative authority tribunal is

made final and jurisdiction of civil court is expressly ousted.

c. Sec.9 of the CPC 1908: Even though the subject matter of the dispute may be civil in
nature and thus covered by the Sec.9 of the CPC, 1908, a civil suit is barred by the statutory
provision.
⮚ Sec. 170 of the Representation of the People Act, 1951: ▪ “No civil court shall have
jurisdiction to question the legality of any action taken or any decision given by the returning
officer or by any person appointed under this Act in connection with an election”.

2. ‘Shall be conclusive evidence’

a. Sec. 35 of the companies act, 1956 treats a certificate of incorporation given by the
Registrar of joint stock companies to be conclusive evidence that all the requirements of the
Act have been complied with.

b. Sub – Sec.3 of Sec.6 of The Land Acquisition Act, 1894 enacts that the declaration of the
state Govt. is conclusive evidence that the land is required for a public purpose. In such cases,
the conclusiveness is but fair in public interest.

⮚Smt. Somawanti and Ors v. State of Punjab (AIR 1963 SC 151) • In February, 1961, the
petitioners purchased over six acres of land situated in the State of Punjab for a sum of Rs.
4,50,000 and claim, to have done so for the purpose of establishing a paper mill. The sixth
respondent, private' limited company, which had a licence from the Government of India for
starting a factory for the manufacture of various ranges of refrigeration compressors and
ancillary equipment, requested the State of Punjab for the allotment of an appropriate site for
the location of the factory.

▪ In the Official Gazette notification under s. 6 of the Land Acquisition Act, 1984 dated
August 19, 1961, was published to the effect that the Governor of Punjab was satisfied that
the land was required by the Government at public expense for the said purpose. The
notification provide for the immediate taking of possession of the land under the provisions
of s. 17 (2) (c) of the Act. On September 29, 1961, the Government of Punjab sanctioned an
expense of Rs. 100 for the purpose of acquisition of the land. The petitioners filed an
application under Art. 32 of the Constitution of India on the grounds – 1) not public purpose
U/S 4 or 6 of the LAA, 1894 2) violation of Art.14 3) colourable exercise of power

• The SC held that, there is no difference between the effect of the expression ‘conclusive
evidence ‘from of ‘conclusive proof’ the aim of both being to give finality to the
establishment of the existence of a fact from the proof of another.

3. ‘Shall not be called in question in any court’

▪ Sec. 38 of the Pharmacy Act, 1948: No order refusing to enter a name on the register or
removing a name from the register shall be called in question in any court. ▪ Sec. 17(2) of the
Industrial Disputes Act, 1947 provided that the award published under Sec.17(1) “shall be
final and shall not be called in question by any court in any manner what so ever”.

⮚ India General Navigation & Rly. Co. Ltd. v. Workmen ( AIR 1960 SC 119)

▪ In the present case, where the appellants, who were carrying on business in water transport
service, notified as a public utility service, dismissed their workmen for joining an illegal
strike, on enquiry but without serving a charge-sheet on each individual workman and the
Industrial Tribunal directed their reinstatement, excluding only those who had been convicted
under s. 143 of the Indian Penal Code but including those convicted under s. 188 of the Code,
with full back wages and allowances.

▪ Sec.17-A – Award was published in accordance with Sec. 17-A of the ID Act,1947. Sec.
17(2) of the Act provided that the award published under Sec.17(1) “shall be final and shall
not be called in question by anycourt in any manner what so ever”.

▪ Rejecting the contention, the SC held that the decision of the Industrial Tribunal, Assam, at
Dhubri, to reinstate those who had been convicted under s. 188 of the IPC must be set aside
and the wages and allowances allowed to those reinstated must be reduced by half and the
award modified accordingly.

▪ The SC further held that the Industrial Disputes Act, 1947 must be read as subject to the
paramount law of the land, namely, the Constitution, and the finality attaching to an award
under ss. 17 and 17A of the Act, must, therefore, yield to the overriding powers of this Court
under Art. 136 of the Constitution.

UNIT 8
 Introduction to Ombudsman

• Ombudsman means a commissioner or an agent. In 1809, the office of Riskdagens

(Parliament) of Sweden created Justitie Ombudsman to look after the interest of justice in the
affairs between the government and the citizens.

• In other words, the ombudsman as an institution first appeared in Sweden as ‘Parliamentary

Supervisor’, referring to ‘a Parliament-nominated commissioner of relative independent
standing empowered to investigate complaints by citizens and watch for illegal or
unreasonable behaviour by administrative agencies or public servants’.

• From legislation to organisation, the Indian government has implemented measures to check
and detect corruption, with appropriate penalties; various commissions and statues have been
established by the Indian government. So, the idea of ombudsman likes independent
institution to look into the administrative faults/maladministration and the public grievance is
six decades old and it has chequered history. The establishment for the institution of an
ombudsman has become a sine qua non (absolutely necessary) to curb the inefficiencies in
the administration.

▪ An ‘Ombudsman’ is a person who acts as a trusted intermediary between an organization

and some internal or external constituency and represents mostly the broad scope of
constituent interests.

• K.C. Wheare: ”It is not eccentric to conclude that if there is more administration, there will
be more maladministration.”
⮚Garner:

▪ “Ombudsman is an officer of Parliament, having as his primary function, the duty of acting
as an agent for Parliament, for the purpose of safeguarding citizens against abuse or misuse of
administrative power.”

⮚ H.W.R Wade describes Ombudsman as “an important adjunct to the machinery of

government” calling him “an ally of an independent judiciary and legal profession” and
declares that “he can be fitted into almost any term of democratic Constitution.”

⮚ Need of Ombudsman in India 1. Administrative delay and discourtesy towards the citizens.
2. The mechanism and procedure to redress the grievances of the individual against the
administration are inadequate. 3. The administration in India has been acquiring vast powers
in the name of socio - economic development and chances for abuse of powers are bound. 4.
Conferment of large administrative and discretionary powers on administrative authorities. 5.
The public feeling against prevalence of corruption, widespread inefficiency and
administration's unresponsiveness to popular needs.

⮚An ombudsman is an official, – usually appointed by the government or by parliament, –

who is charged with representing the interests of the public by investigating and addressing
complaints reported by individual citizens.

▪ An Ombudsman – Is usually appointed by the organization, but sometimes elected by the

constituency.

– may, for example, investigate constituent complaints relating to the organization and
attempt to resolve them, usually through recommendations or mediation.

– may sometimes identify organizational roadblocks running counter to constituent interests.

▪ In some jurisdictions an Ombudsman charged with the handling of concerns about national
government is more formally referred to as the "Parliamentary Commissioner" (e.g., the
United Kingdom Parliamentary Commissioner for Administration, and the Western
Australian state Ombudsman).

▪ In many countries where the ombudsman's remit extends beyond dealing with alleged
maladministration to promoting and protecting human rights, the Ombudsman is recognized
as the National Human Rights Institution.

 Power and Function of Lokpal

Ombudsman: A watchdog on Government, investigating and resolving citizen’s complaints.

Lokpal: an Indian version of ombudsman office. The word ‘lokpal’ has derived from the
sanskrit word ‘loka’ (people) and ‘pala’ (protector/caretaker). So the word ‘lokpal’ means
‘protector of people’.
Salient Features of the Lok Pal Bill:

The Lokpal Bill provides for constitution of the Lokpal as an independent body to enquire
into cases of corruption against public functionaries, with a mechanism for filing complaints
and conducting inquiries etc. Followings are some important features of Lokpal –

Lokpal at the Centre and Lokayuktas at the levels of the states

Lokpal will consist of a Chairperson and maximum of eight members, of which 50 percent
shall judicial members and from SC/ST/OBCs, Minorities and Women.

The selection of Chairperson and members of Lokpal shall be through a selection committee
consisting of Prime Minister , Speaker of Lok Sabha, Leader of Opposition in the Lok Sabha,
Chief Justice of India or a sitting Supreme Court judge nominated by CJI, eminent jurist to be
nominated by the President of India on the basis of recommendations of the first four
members of the selection committee.

► Lokpal’s jurisdiction will cover all categories of public servants.

► All entities receiving donations from foreign source in the context of the Foreign
Contribution Regulation Act (FCRA) in excess of Rs 10 lakh per year are brought under the
jurisdiction of Lokpal. Etc.

Who are the public servants covered by the Act?

The Lokpal has jurisdiction to inquire into allegations of corruption against anyone who is or
has been Prime Minister, or a Minister in the Union government, or a Member of Parliament,
as well as officials of the Union government under Groups A, B, C and D. Also covered are
chairpersons, members, officers and directors of any board, corporation, society, trust or
autonomous body either established by an Act of Parliament or wholly or partly funded by
the Centre. It also covers any society or trust or body that receives foreign contribution above
₹10 lakh.

Powers of the Lokpal are as follows;

If the Lokpal receives a complaint under the prevention of corruption act 1988, then it
can initiate the investigation. If the complaint found true in the investigation then the Lokpal
can ask the government to take disciplinary action against the accused public servants or can
file a corruption case in a special court.

 Difference between Ombudsman and Court

As a matter of course the Ombudsman as an independent human right protector is new and
should not interfere with other independent institutions. In particular, the Ombudsman should
not compete with legal protection by courts, in particular Constitutional Courts. The two
concepts have a common goal – human rights protection, but they are based on completely
different organizational and functional concepts. Ombudsmen only have soft powers to
prevent and promote human rights violations, whereas courts have to decide individual cases
and can enforce human rights protection. Ombudsmen take their legitimation from an
election by parliament and are responsible to parliamentary bodies and public opinion. In
contrast, courts have to be completely separated from politics – judges can only be removed
by court sentence. Thus, the independence of both institutions and the principle of separation
of powers demand a strict segregation of the two institutions and exclude a mutual control.
Several international legal acts highlight the importance of this separation and its guarantee
by the constitution.

 Vineet Narain v. UOI

Summary:
This case concerns the historic Hawala scandal in India, which uncovered possible bribery
payments to several high-ranking Indian politicians and bureaucrats from a funding source
linked to suspected terrorists. Following news coverage of the scandal, members of the public
were dismayed by the failure of the Central Bureau of Investigation (CBI) to initiate
investigations of the officials with the apparent intent to protect certain implicated individuals
who were extremely influential in government and politics. This litigation was the result of
public interest petitions filed on these matters with the Court pursuant to Article 32 of the
Indian Constitution (which empowers the Supreme Court to issue directions for the
enforcement of fundamental rights contained in the Constitution).
The Court agreed that the CBI had failed in its responsibility to investigate allegations of
public corruption. It laid down guidelines to ensure independence and autonomy of the CBI
and ordered that the CBI be placed under the supervision of the Central Vigilance
Commission (CVC), an independent governmental agency intended to be free from executive
control or interference. This directive removed the CBI from the supervision of the Central
Government thought to be partly responsible for the inertia that contributed to the CBI’s
previous lack of urgency with respect to the investigation of high-ranking officials. The CVC
was now responsible for ensuring that allegations of corruption against public officials were
thoroughly investigated regardless of the identity of the accused and without interference
from the Government.
Enforcement of the Decision and Outcomes:
In terms of enforcement, following Court orders, investigations were conducted and charge
sheets were filed against certain accused. However, all the cases collapsed at the stage of
prosecution in court.
The Court’s directions pertaining to structural relief were followed by the executive in the
immediate aftermath of the decision but without a detailed investigation into individual cases
it is not possible to assess the extent to which they were enforced.
The Court in this case had struck down the validity of a directive issued by the Ministries
and Departments in the Central Government that required the CBI to seek approval of the
Central Government before pursuing investigation against bureaucrats of the level of Joint
Secretary and above on grounds that it violated the independence of the investigative process.
However, the Central Vigilance Commissioner Act, 2003, reinstated this requirement. This
directive was again struck down by the Supreme Court in the course of another judgment in
2014(link is external) on the basis that it violated the right to equality guaranteed by the
Constitution.
The primary purpose of the case was to compel a proper investigation into the scam, however
this never happened. The focus of the judgment on the future and autonomy of the CBI may
have been a way to divert attention from the issue of the scam. And as regards the directions
of the court relating to the CBI, these were heavily diluted by politicians during
implementation which resulted in the CVC being essentially toothless and controlled by the
government. Nothing substantial changed in the aftermath of the case and today, scams
continue with impunity. (Interview with Vineet Narain, July 2015. He filed this case, and is a
prominent journalist and anti-corruption activist.)

 CVC

⮚ HISTORY

• Central Vigilance Commission (CVC) is an apex Indian governmental body created in

1964to address governmental corruption. • It has the status of an autonomous body, free of
control from any executive authority, charged with monitoring all vigilance activity under the
Central Government of India, and 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. • The Annual Report of the CVC not
only gives the details of the work done by it but also brings out the system failures which
leads to corruption in various Departments/Organisations, system improvements, various
preventive measures and cases in which the Commission's advises were ignored etc. • The
current Central Vigilance Commissioner is Sanjay Kothari He took charge on 25 April 2020.

⮚ 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 Ordinance of 1998 conferred statutory status to the CVC and the powers to exercise
superintendence over functioning of the Delhi Special Police Establishment, and also to
review the progress of the investigations pertaining to alleged offences under the Prevention
of Corruption Act, 1988conducted by them.

• In 1998 the Government introduced the CVC Bill in the Lok Sabha in order to replace the
Ordinance, though it was not successful. The Bill was reintroduced in 1999 and remained
with the Parliament till September 2003,when it became an Act after being duly passed in
both the Houses of Parliament. The CVC has also been publishing a list of corrupt
government officials against which it has recommended punitive action.

⮚ APPOINTMENT OF CVC ⮚ The Central Vigilance Commissioner and the Vigilance

Commissioners are appointed by the President after obtaining the recommendation of a
Committee consisting of:

• The Prime Minister — Chairperson • The Home Minister — Member. • The Leader of the
Opposition in the Lok Sabha — Member

⮚ REMOVAL • 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
misbehavior 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.

⮚ ORGANISATION

• The CVC is headed by a Central Vigilance Commissioner who is assisted by two Vigilance
Commissioners.

• The Central Vigilance Commission has its own Secretariat, Chief Technical Examiners‘
Wing (CTE) and a wing of Commissioners for Departmental Inquiries (CDI).

⮚ POWERS AND FUNCTIONS

1. Exercise superintendence over the functioning of the Delhi Special Police Establishment
(CBI) insofar as it relates to the investigation of offences under the Prevention of Corruption
Act, 1988; or an offence under the Cr.P.C for certain categories of public servants – section
8(1)(a);

2. Give directions to the DSPE in Special Police Establishment (CBI) for superintendence
insofar as it relates to the investigation of offences under the Prevention of Corruption Act,
1988 – section 8(1)(b);

3. To inquire or cause an inquiry or investigation to be made on a reference by the Central

Government – section 8(1)(c);
4. To inquire or cause an inquiry or investigation to be made into any complaint received
against any official belonging to such category of officials specified in Sub-section 2 of
Section 8 of the CVC Act, 2003 – section 8(1)(d);

5. Review the progress of investigations conducted by the DSPE into offences alleged to have
been committed under the Prevention of Corruption Act, 1988 or an offence under the Cr.P.C
– section 8(1)(e);

6. Review the progress of the applications pending with the competent authorities for
sanction of prosecution under the Prevention of Corruption Act, 1988 – section 8(1)(f);

7. Tender advice to the Central Government and its organizations on such matters as may be
referred to it by them – section 8(1)(g);

8. Exercise superintendence over the vigilance administrations of the various Central

Government Ministries, Departments and organizations of the Central Government – section
8(1)(h);

9. Shall have all the powers of a Civil court while conducting any inquiry – section 11;

⮚ LIMITATIONS OF CVC

a) CVC is only an advisory body. Central Government Departments are free to either accept
or reject CVC's advice in corruption cases.

b) 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.

c) 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.

d) CVC does not have powers to register criminal case. It deals only with vigilance or
disciplinary cases.

e) 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.

f) 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.
g) 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.

⮚ Case laws:

⮚ Centre For PIL & Anr v. Union of India & Anr. (WRIT PETITION (C) No. 348 of
2010) • PJ Thomas was appointed as the Chief Vigilance Commissioner in September 2010,
on the recommendation of a High Powered Committee (HPC) headed by the Prime Minister
of India. The selection of the new CVC was marked by controversies, after Sushma Swaraj,
who was part of three member selection committee, objected to the choice of Thomas, citing
the pending charge sheet against him. A public interest litigation was filed in the Supreme
Court of India by Centre for Public Interest Litigation and India Rejuvenation Initiative. • On
March 3, 2011, the Supreme Court quashed the appointment of Thomas as the Chief
Vigilance Commissioner, noting that the HPC did not consider the relevant materials on the
pending charge sheet. Subsequently, Mr. Thomas resigned.

⮚ Sunil Kumar Banerjee v. State of west Bengal (AIR 1980 SC 1170) • The appellant was a
member of the Indian Administrative Service. In an enquiry under rule 8 of the All India
Services (Discipline and Appeal) Rules, 1969 against him the Commissioner for
Departmental Enquiries, Vigilance Commission, West Bengal was appointed as the Enquiry
Officer. He held that certain charges framed against the appellant were proved, certain others
were partly proved and one was considered to be a technical omission rather than a serious
lapse. • The State Vigilance Commission expressed its view on the Enquiry Officer's Report.
Thereafter, after consulting the Union Public Service Commission, the State Government,
which was the Disciplinary Authority, imposed on the appellant the punishment of reduction
in rank from the stage of Rs. 2,750 p.m. to the stage of Rs. 2,500 p.m. with certain other
consequences. • The appellant's writ petition was dismissed by a single Judge of the High
Court and his appeal to the Division Bench was also dismissed.

• The SC held that, there is no substance in the contention that the 1955 rules and not 1969
rules were followed. The charges framed against the appellant as well as in the first
showcause notice, the reference was clearly to the 1969 rules. The appellant himself
mentioned in one of his letters that the charges had been framed under 1969 rules. The
enquiry report mentioned that the Enquiry Officer was appointed under the 1969 rules. The
Court dismissed the petition.

⮚ Md. Iqbal Ahmad v. State of A.P. (AIR 1979SC 677)

• The appellant who was charged with an offence under s. 5(2) read with s.5(1)(d) of the
Prevention of Corruption Act, 1947 was acquitted by the Special Judge. But the High Court
on appeal by the State, reversed the judgment of the Special Judge and convicted him.

• In appeal to SC it was contended on behalf of the appellant that there was no evidence to
show on what materials the sanctioning authority applied its mind before granting the
sanction under s.6 of the Act. The entire proceedings are void ab initio.
a) The SC has held that, the prosecution of the appellant was without valid sanction and,
therefore, cognizance taken by the Special Judge was without jurisdiction. b) Any case
instituted without proper sanction must fail as the entire proceedings are rendered void ab
initio. Therefore, the prosecution must prove that valid sanction has been granted by the
sanctioning authority. c) The sanctioning authority must be satisfied that a case for sanction
has been made out constituting offence

⮚ R. S. Nayak vs A. R. Antulay (AIR 1984 SC 684)

• The appellant, R.S. Nayak, filed a complaint against the respondent, A.R. Antualy, a public
servant being the Chief Minister of Maharashtra State under ss. 161, 165 I.P.C. and s. 5 of the
Prevention of Corruption Act, 1947 alleging abuse of office of Chief Minister. The complaint
was rejected on account of absence of necessary sanction of the Governor of Maharashtra
State under s. 6 of the 1947 Act to prosecute the respondent. After the Governor issued
necessary sanction, the appellant filed a fresh complaint in the Court of Special Judge against
the respondent on the same grounds. • However, on the date of filing fresh complaint the
respondent had already resigned as Chief Minister. The respondent contended that the Special
Judge had no jurisdiction to try him under s. 7 of the Criminal Law Amendment Act, 1952
and that no cognizance could be taken on private complaint.

• The Special Judge rejected both the contentions. In the meantime the State Government
issued a notification under s. 7(2) of the Criminal Law Amendment Act, 1952 under which
the case was transferred to another Special Judge. In a criminal revision application filed by
the respondent against the order of earlier Special Judge, a Division Bench of the High Court
held that the Special Judge had jurisdiction to try the respondent and that the private
complaint was maintainable.

• When the latter Special Judge proceeded with the case the respondent filed an application
for his discharge on the grounds that the charge against him was baseless and that he being a
Member of legislative Assembly (M.L.A) requisite sanction under s.6 of the 1947 Act was
necessary. The Special Judge discharged the respondent holding that the respondent being
M.L.A was a public servant within s. 21 (12)(a) of I.P.C. and in the absence of the sanction of
the Legislative Assembly he could not take cognizance of offence.

• The SC held that M.L.A. is not a public servant under clauses (12)(a), (3) and (7) of s.21
I.P.C. and no sanction under s.6 of the Prevention of Corruption Act, 1947 is necessary to
prosecute him. It is not necessary to ascertain which would be the authority competent to
sanction prosecution of M.L.A.

 Salient Features of RTI

Salient features of RTI

 All citizens possess the right to information.

  Information can be obtained within 30 days from the date of request in normal case. If
information is a matter of life or liberty of a person, it can be obtained within 48 hours
from time of request.

 Every public authority is under obligation to provide information on written request or

request by electronic means.

 Certain information are prohibited (Section 8).

 Restrictions made for third party information.

 Appeal against the decision of the Central Information Commission or State

Information Commission can be made to an officer who is senior in rank.

Section 8 of the RTI Act – Exemption from disclosure of information

It deals with those information that are exempted from disclosure, they are

(1) Notwithstanding anything contained in this Act, there shall be no obligation to give any
citizen,—

1. Any Information, disclosure of which would prejudicially affect the sovereignty and
integrity of India, the security, strategic, scientific or economic interests of the
State, relation with foreign State or lead to incitement of an offence;

2. Information which has been expressly forbidden to be published by any court of

law or tribunal or the disclosure of which may constitute contempt of court;

3. Information, the disclosure of which would cause a breach of privilege of Parliament

or the State Legislature;

4. Information including commercial confidence, trade secrets or intellectual

property, the disclosure of which would harm the competitive position of a third
party, unless the competent authority is satisfied that larger public
interest warrants the disclosure of such information;

5. Information available to a person in his fiduciary relationship, unless the competent

authority is satisfied that the larger public interest warrants the disclosure of such
information;

6. Information received in confidence from foreign government;

7. Information, the disclosure of which would endanger the life or physical safety of
any person or identify the source of information or assistance given in confidence
for law enforcement or security purposes;

8. Information which would impede the process of investigation or apprehension or

prosecution of offenders;
 9. cabinet papers including records of deliberations of the Council of Ministers,
Secretaries and other officers: Provided that the decisions of Council of Ministers, the
reasons thereof, and the material on the basis of which the decisions were taken shall
be made public after the decision has been taken, and the matter is complete, or over:
Provided further that those matters which come under the exemptions specified in this
section shall not be disclosed;

10. Information which relates to personal information the disclosure of which has
not relationship to any public activity or interest, or which would cause
unwarranted invasion of the privacy of the individual unless the Central Public
Information Officer or the State Public Information Officer or the appellate authority,
as the case may be, is satisfied that the larger public interest justifies the disclosure of
such information: Provided that the information, which cannot be denied to the
Parliament or a State Legislature shall not be denied to any person.

(2) Notwithstanding anything in the Official Secrets Act, 1923 (19 of 1923) nor any of the
exemptions permissible in accordance with sub-section (1), a public authority may allow
access to information, if public interest in disclosure outweighs the harm to the protected
interests.

(3) Subject to the provisions of clauses (a), (c) and (i) of sub-section (1), any information
relating to any occurrence, event or matter which has taken place, occurred or happened
twenty years before the date on which any request is made under section 6 shall be provided
to any person making a request under that section: Provided that where any question arises as
to the date from which the said period of twenty years has to be computed, the decision of the
Central Government shall be final, subject to the usual appeals provided for in this Act.

UNIT 9
 Contractual Liability and Tortious Liability

⮚Development of concept of State Liability ▪ Under the English Common Law the maxim
was "The King can do no wrong" and therefore, the King was not liable for the wrongs of its
servants. But, in England the position of old Common law maxim has been changed by the
Crown Proceedings Act, 1947.

▪ With the increasing functions of State, the Crown Proceedings Act had been passed, now
the Crown is liable for a tort committed by its servants just like a private individual.
Similarly, in America, the Federal Torts Claims Act, 1946 provides the principles, which
substantially decides the question of liability of State.

⮚Article 300 reads as:

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

(2) If at the commencement of this Constitution (a) any legal proceedings are pending to
which the Dominion of India is party, the Union of India shall be deemed to be substituted for
the Dominion in those proceedings; and

(b) any legal proceedings are pending to which a Province or an Indian State is a party, the
corresponding State shall be deemed to be substituted for the province or the Indian State in
those proceedings.

⮚ Case laws on Tortious Liability of State(before independence)

⮚ The Peninsular and Oriental Navigation Company v. Secretary of State for India(1861)
5 Bom HCR AppI p.1 ▪ The first case, which seriously discussed the question of Sovereign
Immunity. In this case, 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 done wrong’, was
applicable to the East India Company. The company would have been liable in such cases
and the Secretary of State was thereafter also liable. This arose out of the section 65,
Government of India Act, 1858, which equated the liability of the Secretary of State for India
with that of the East India Company. Distinguishing 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.

⮚ The Secretary of State for India v. Hari Bhanji (1882) ILR 5 Mad 273

• This case came before the Madras High Court, in which during the course of transit of salt
from Bombay to Madras ports, the rate of duty on salt was enhanced and the merchant was
called upon to pay the difference at the port of destination. • He paid under protest and
instituted the suit for its recovery. The court ruled that the government was not liable as they
were discharging its sovereign function on considering the case of Peninsular & Oriental
Steam Navigation Co. v. Secretary of State

• It was defined that acts of State or acts done in the exercise of sovereign power, where the
act complained of is professedly done under the sanction of municipal law, and in exercise of
powers conferred by law. The mere fact that it is done by the sovereign powers and is not an
act which could possibly be done by a private individual does not oust the jurisdiction of the
civil court. • The Madras judgment in Hari Bhanji holds that the Government may not be
liable for acts connected with public safety, even though they are not acts of State. • In this
case, the court has denied any distinction between sovereign and non-sovereign functions

After commencement f the Constitution

⮚ State of Rajasthan v. Mrs. Vidyawati (AIR 1962 SC 933)

• In this case, a Government Jeep knocked down a pedestrian who died in consequence of
accident. Rejecting the appeal by the State of Rajasthan on the ground of Sovereign
Immunity, the Court ruled that the State is liable for the tort or wrongs committed by its
officials.

• In this case distinction between sovereign and non-sovereign functions were disregarded,
but the court observed that the State would not be responsible for the ‘act of State' under
Article 300 of the Constitution. Petitioner Vidyawati was awarded a compensation of Rs.
15000.

• The Supreme Court, in this case, added that in modern times, the State has welfare and
socialistic functions and the defence of State immunity based on the old feudalistic notions of
justice cannot be sustained.

⮚ Kasturilal Ralia Ram Jain v. State of U.P. (AIR 1965 SC 1039)

▪ In this case the Police seized some suspected stolen gold from Plaintiff. Later, it was
misappropriated by Head Constable of the Police Station who reportedly fled to Pakistan with
the Gold. The Supreme Court held that the State is not liable as impugned act is a sovereign
activity

⮚ N. Nagendra Rao & Co. v. State of A.P. (AIR 1994 SC 2663)

• In the present case, the non-disposal of the goods seized under various control orders issued
under the Essential Commodities Act, 1955 caused a loss to the appellants. The trial court
held that the state while performing its duty under a statute has been negligent and issued a
decree for the payment of a total value of Rs.1,06,125 towards the damaged stock with
interest thereon at the rate of 6% . • However, this order was struck down by the High Court
of Andhra Pradesh which decided the case on the ratio of Kasturilal case. The appellants
appealed against the High Court judgment and thus, approached the Supreme Court. The
High Court granted certificate under Article 133(1) of the Constitution of India as the case
involved “substantial questions of law, of general importance.”

⮚ Issues ⮚ The issues under consideration in this case were:

1) Whether the employees of the state were negligent in disposing the goods?

1) Whether the seizure of the goods in exercise of statutory powers under the said Act
immunizes the State completely from any loss or damage suffered by the owner?

• The SC held the State of Andhra Pradesh liable for the loss caused to the appellant by the
negligent exercise of powers by the state officials under the Essential Commodities Act,
1955.

• The court observed that no civilised system could permit an executive to play with the
people of a country and claim to be sovereign. To place the State above the law is unjust and
unfair to the citizen. In the modern sense the distinction between sovereign and non-
sovereign functions does not exist.

⮚ Achut Rao Hari Bhau Kodwa & anr. v. State of Maharashtra and others. (1996) 2 SCC
634

• The Government doctor and the State were held liable because of the negligence of the said
doctor in the hospital resulting in death of the patients, it was held that running of hospitals
not being exclusive function of the Government, maintaining a hospital by Govt. would not
be an exercise of sovereign power so as to enable to claim immunity from liability for the
tortious acts of its hospital employees. Compensation was awarded to the family of the
deceased reversing the decision of the High Court and affirming the decision of the Trial
Court.

• Sovereignty in India now vests in the people who have given a written constitution to India
with certain aims and objects enshrined in the Preamble to the Constitution. It is obvious that
the claim of immunity now survives in defence, administration of justice, maintenance of law
and order, repression of crime etc. which are primary and inalienable functions of
Government regulated by a constitution

⮚ Rudul Shah v. State of Bihar (1983) 4 SCC 141

▪ The petitioner Rudul Shah was detained illegally in prison for more than fourteen years
after acquittal. He filed Habeas Corpus before the SC u/A 32 for his immediate release and
inter alia prayed for his rehabilitation cost, medical charges and compensation for illegal
detention. ▪ The question before the court was "whether in exercise of jurisdiction under
Article 32, the court can pass an order for payment of money? Whether such order is in the
nature of compensation consequential upon the deprivation of fundamental right?

The SC held that, in the circumstances of the instant case the refusal to pass an order of
compensation in favour of the petitioner will be doing mere lip-service to his fundamental
right to liberty which the State Government has so grossly violated. Therefore, as an interim
measure the State must pay to the petitioner further sum of Rs 30,000 in addition to the sum
of Rs 5,000 already paid by it. This order will not preclude the petitioner from bringing a suit
to recover appropriate damages from the State and its erring officials.

⮚ The decision of Rudul Shah was important in two respects.

1. Firstly, it held that violation of a constitutional right can give rise to a civil liability
enforceable in a civil court and;

1. Secondly, it formulates the bases for a theory of liability under which a violation of the
right to personal liberty can give rise to a civil liability. The decision focussed extreme
concern to protect and presence the fundamental right of a citizen than sovereign and non-
sovereign dichotomy.

⮚Contractual Liability of State

• A contract is an agreement enforceable by law, which offers personal rights, and imposes
personal obligations, which the law protects and enforces against the parties to the agreement.
The general law of contract is based on the conception, which the parties have, by an
agreement, created legal rights and obligations, which are purely personal in their nature and
are only enforceable by action against the party in default.

• Section 2(h) of the Indian Contract Act,1872 defines a contract as "An agreement
enforceable by law". The word "agreement" has been defined in Section 2(e) of the Act as
"every promise and every set of promises, forming consideration for each other." A contract
to which the Central Government or a State Government is a party is called a "Government
Contract".

• Government contracts have been accorded Constitutional recognition. The Constitution,

under Article 298, clearly lays down that the executive power of the Union and of each state
extends to "the carrying on of any trade or business and to the acquisition, holding and
disposal of property and the making of contracts for any purpose". The Constitution
therefore, provides that a government may sue or be sued by its own name. A similar
provision is found in the Code of Civil Procedure 1908 under Section 79.

⮚ 'Contracts' and 'Government contracts'

▪ It is true that in respect of Government Contracts the provisions of Article 299(1) must be
complied with, but that does not mean that the provisions of the Indian Contract Act have
been superseded.

⮚ State of Bihar v. Majeed (AIR 1954 SC 245) ▪ The Supreme court held that “it may be
noted that like other contracts, a Government Contract is also governed by the Indian
Contract Act, yet it is distinct a thing apart. In addition to the requirements of the Indian
Contract Act such as offer, acceptance and consideration, a Government Contract has to
comply with the provisions of Article 299. Thus subject to the formalities prescribed by
Article 299 the contractual liability of the Central or State Government is same as that of any
individual under the ordinary law of contract.".

⮚ Formation of Government Contracts

• The executive power of the Union of India and the States to carry on any trade or business,
acquire, hold and dispose property and make contracts is affirmed by Article 298 of the
Constitution of India. If the formal requirements required by Article 299 are complied with,
the contract can be enforced against the Union or the States.

⮚ Article 299 provides:

▪ "(1) All contracts made in the exercise of executive power of the union or a state shall be
expressed to be made by the President or by the Governor of the State as the case may be,
and all such contracts and all assurances of property made in the exercise of that power shall
be executed on behalf of the President or the Governor by such person and in such manner as
he may direct or authorize.
▪ (2) Neither the President nor the Governor shall be personally liable in respect of any
contract or assurance made or executed for the purpose of any enactment relating to
Government of India hereto before in force , nor shall any such contract or assurance on
behalf of any of them be personally liable in respect thereof".

⮚ Seth Bhikaraj Jaipuria v. Union of India (AIR 1962 SC 113)

• In the year 1943 the Divisional Superintendent, East Indian Railway placed certain purchase
orders with the appellant for the supply of foodgrains for the employees of the East Indian
Railway. The orders were not expressed to be made in the name of the Governor-General and
were not "executed on behalf of the Governor-General as required by S. 175 (3) of the
Government of India Act, 1935. They were signed by the Divisional Superintendent either in
his own hand or in the hand of his Personal Assistant. Some deliveries of foodgrains were
made under these orders and were accepted and paid for by the Railway Administration.

• But the Railway Administration declined to accept further deliveries of foodgrains. The
appellant sold the balance of foodgrains under the purchase orders and filed a suit to recover
the difference between the price realized by sale and the contract price. The respondent
resisted the suit inter alia on the ground that the contracts were not binding on it.

• The Supreme Court in the case held that, that the contracts were not binding on the
respondent and it was not liable for damages for breach of the contracts. Under s 175 (3) of
the Government of India Act, 1935, as it stood at the relevant time, the contracts had:

a) to be expressed to be made by the Governor-General,

b) to be executed on behalf of the Governor-General and

c) to be executed by officers duly appointed in that behalf and in such manner as the
Governor-General directed or authorized

⮚ Implied Contract with the Government ⮚ K.P. Chowdharyv. State of Madhya Pradesh
(AIR 1967 SC 203)

• The appellant gave the highest bids for two forest contracts at an auction. As the amount of
the contract was more than what the Division Forest Officer could accept the matter was
referred to the Chief Conservation of Forests who had the necessary authority to accept the
bids. After the close of the auction the appellant had signed the contract form as required, and
the documents were sent to the Chief Conservator of Forests for sanction and signature.
Before the Chief Conservator of Forests could accept the contract, the appellant raised a
dispute as to the marking of the trees. As that dispute was not settled to the satisfaction of the
appellant he refused to complete the contract.

• The contracts were re- auctioned at which there was certain deficiency in the amount. A
letter was written tothe Tehsildar for recovering this deficient amount from the appellant as
arrears of land revenue as per the conditions of auction. Thereupon, the appellant filed a writ
petition challenging the recovery of the amount as arrears of land revenue as the contract was
not signed or completed by him. The High Court dismissed the petition. ▪ The SC held that
“in view of the provisions of Article 299(1) there is no scope for any implied contract. Thus
no contract can be implied under this Article. If the contract between the Government and a
person is not incompliance with Article 299(1), it would be no contract at all and would not
be enforceable as a contract either by the Government or by the person."

⮚ Principles Underlying Government Contracts

⮚ Reasonableness and fairness ▪ The principle of reasonableness and rationality which is

legally as well as philosophically an essential element of equality or non-arbitrariness is
projected by Article 14 and it must characterize every State action, whether it be under the
authority of law or in exercise of executive power without making of law. ▪ The state cannot,
therefore, act arbitrarily in entering into relationship, contractual or otherwise with a third
party, but its action must conform to some standard or norm which is rational and non-
discriminatory. The action of the Executive Government should be informed with reason and
should be free from arbitrariness.

⮚ Public Interest ▪ State owned or public owned property is not to be dealt with at the
absolute discretion of the executive. Certain precepts and principles have to be observed and
public interest is the paramount consideration. There may be situations where there are
compelling reasons necessitating the departure from the rule, but there the reasons for the
departure must be rational and should not be suggestive of discrimination. Nothing should be
done which gives an appearance of bias, jobbery or nepotism. Person holding public office
must exercise his power in public interest and for public good.

⮚ Equality and Non-arbitrariness ▪ From a positivistic point of view, equality is antithetic to

arbitrariness. In fact, equality and arbitrariness are sworn enemies; one belonging to the rule
of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where
an act is arbitrary, it is implicit in it that it is unequal both according to political logic and
constitutional law and is violative of Article 14. ▪ The principle of reasonableness, which
legally as well as philosophically, is an essential element of equality or non arbitrariness
pervades Article 14 like a brooding omnipresence and the procedure contemplated by Article
21 must answer the test of reasonableness in order to be in conformity with Article 14.

⮚ Judicial Review in Contractual Matters

▪ The grounds upon which an administrative action is subject to control by judicial review can
be classified under:

1) Illegality:

• Decision makers must understand the law that regulate them. If they fail to follow the law
properly, their decision, action or failure to act will be illegal. Thus an action or decision may
be illegal on the basis that the public body has no power to take that action or decision, or has
acted beyond its powers.

• This arises, for example when the legislation relating to a public body does not include the
necessary power nor have precise limits or when the power can be used. Public bodies acting
illegally in this way can be described as acting “ultra vires” (which means beyond or outside
their powers).

2) Irrationality: • A person in whom is vested a discretion must exercise his discretion upon
reasonable grounds. A decision of the administrative authority shall be considered as
irrational if it is so outrageous in its defiance to logic or accepted norms of moral standard
that no sensible person, on the given facts and circumstances, could arrive at such a decision.

3) Procedural impropriety: • Failure to comply with procedures laid down by statute may
invalidate a decision. Procedural impropriety is to encompass two areas: a) failure to observe
rules laid down in statute; and b) a failure to observe the basic common law rule of natural
justice.

 Sec 80 of CPC

Generally, in suits between individuals and individuals notice to defendants by plaintiff

before institution of suit is not required to be given. However, section 80 of the Civil
Procedure Code (CPC) says that before institution of a suit against the government or against
any public officer, in respect of any act purporting to be done by such public officer in his
official capacity, until the expiration of two months next after the notice in writing has been
delivered.

Nature of Section 80:

Section 80 contains a rule of procedure and makes it mandatory to serve a notice before
institution of a suit against the Government or against a public officer.

Thus, this section describes two types of cases:

1. Suit against the Government and

2. Suit against public officers in respect of acts done or purporting to be done by such
public officers in their official capacity.

In State of Maharashtra v. Chander Kant it was observed that notice must be given in all
cases regarding the first class of cases. However, regarding second class cases, notice is
necessary only where the suit is in respect of any act purporting to be done by such public
officer in the discharge of his duty, and not otherwise.

In State of Madras v. Chitturi Venkata Durga Parasadrao it was observed that the
expression act purporting to be done according to one interpretation which is strictly
grammatical, takes in part acts as well as future acts. The other interpretation based upon an
idiomatic interpretation of the language is that it would be restricted to part acts.
  Doctrine of Waiver

• An individual possesses certain legal rights which are conferred upon him either by the
constitution, statute or a contract. A Right can be defined as an interest or a claim which
gives the individual the power to control the act of others, i.e., to make someone do or abstain
from doing an act. An important question arises as to whether these rights can be waived.

• Doctrine of waiver, as defined by Black’s Law Dictionary, “is the intentional or voluntary
relinquishment of a known right. Waiver is when a person intentionally and with full
knowledge, gives away his right to exercise or chooses not to exercise that right which the
person would otherwise possess.”

• Waiving a right means that a person can no longer assert that right and is precluded from
challenging the constitutionality of that law for the benefit of which, the right is waived.

• This doctrine is based on the principle that a person is the best judge of his own interest and
when given full knowledge, the person should be allowed to decide for himself. • In India, a
person can waive rights conferred by a statute or rights arising out of a contract, but cannot
waive constitutional rights or rights guaranteed by the constitution itself.

• The Fundamental Rights exist in the Constitution not merely for an individual’s benefit, but
are a matter of public policy. Rights which are part of public policy cannot be waived.
Additionally, the Constitution imposes an obligation on the state to protect these rights.

⮚Salient features:

⮚Intention • It is an essential element that one must have intended such waiver. A right can
be waived only when done expressly or impliedly. Express waiver is done by writing or
giving a statement of waiver. Implied waiver is inferred from act or conduct of the person.
There must be an intended act, by the person asserting his right, relied upon by another
person, which will negate such assertion equitable anymore.

⮚Knowledge • Knowledge here implies that the person waiving their right must know of the
nature of right and consequences of such waiver. Knowledge includes the instrument of
understanding. By knowledge, it is not meant that the party waiving should know the
intricacies of the right. It is not required to have an absolute understanding of the exact scope
of right but a virtual and general understanding.

⮚Case laws:

Basheshar Nath v. The Commissioner of Income-Tax, Delhi & Rajasthan & Another (AIR
1959 SC 149) • The appellant's case was on July 22, 1948, referred by the Central
Government under S. 5(1) of the Taxation of Income (Investigation Commission) Act, 1947
to the Investigation Commission for investigation and report. The Commission directed the
authorized official under s. 6 of the Act to examine the appellant's accounts. He submitted his
final report by the end of 1953. • The Commission considered the report heard the assessee
and came to the conclusion that Rs. 4,47,915 had escaped assessment. There upon the
appellant on May 20, 1954, applied to the Commission for a settlement of his case under s.
8A of the Act, agreeing to pay Rs. 3,50,000 by way of tax and penalty at the concessional
rate. • It was contended on behalf of the respondent that the Act laid down two distinct and
separate procedures, one for investigation and the other for settlement and it was the former
alone and not the latter that was affected by the decisions of this Court. And that the appellant
by voluntarily entering into the settlementhad waived his fundamentalright founded on Art.
14 of the Constitution.

⮚The two questions for determination in this appeal were:

1) Whether a settlement under s. 8A of the Taxation of Income (Investigation Commission)

Act, 1947 made after the commencement of the Constitution was constitutionally valid, and
2) Whether the waiver of a fundamental right was permissible under the Constitution

• The Supreme Court held that both the contentions must fail. A person cannot waive his
fundamental rights. • It was not correct to say that the Taxation of Income (Investigation
Commission) Act, 1947, laid down two different procedures, one for investigation and
assessment under s.8(2) of the Act and another for settlement under s. 8A of the Act and
assessment in terms of such settlement.

⮚Olga Tellis v Bombay Municipal Corporation (AIR 1986 SC 180)

• In this case, it was further held that there can be no estoppel against the Constitution. The
Preamble of the Constitution states India to be a democratic republic and no citizen could
barter away with fundamental rights.

• The effect of waiver and estoppel is more or less the same, i.e., both prevent a person from
challenging the constitutionality of a statute. • But there is a considerable difference between
the two. Waiver means to give away the right whereas estoppel is an impediment on a person,
preventing him from making inconsistent facts. • The basis of estoppel is that a person cannot
rely upon a statute and at the same time challenge it. Estoppel is not a cause of action but a
rule of evidence, meaning hereby, an alleged matter of fact. Waiver can be construed as
contractual, as the party has agreed not to assert his right for some benefit.

• Article 13 of Indian Constitution states that “laws in force prior to commencement of the
Constitution shall be void to the extent inconsistent with part III of Constitution and laws
made by State inconsistent with part III, after such commencement, shall be to that extent
void.”

• It directs the State to not to make any law which is a contravention of part III of the
constitution. However, an amendment made under Article 368 of the constitution is not
subject to Article 13.

• Article 14, which is “The State shall not deny to any person equality before the law or the
equal protection of the laws”, is a reflection of English doctrine of rule of law and equal
protection guaranteed under the American constitution. It is based on sound public policy
appreciated in a civilized society.
• The words of the article are directed towards the State instead of an individual. It obliges
and imposes a burden on the state. The State cannot do away with this responsibility by
saying that the individual wanted so. It cannot violate its constitutional mandate solely by
arguing that it was asked by the individual.

 Doctrine of Estoppel

• The doctrine of promissory estoppel is an equitable doctrine. Like all equitable remedies, it
is discretionary, in contrast to the common law absolute right like right to damages for breach
of contract. • The doctrine has been variously called 'promissory estoppel', 'equitable
estoppel', 'quasi estoppel‘. It is a principle evolved by equity to avoid injustice and though
commonly named 'promissory estoppel', it is neither in the realm of contract nor in the realm
of estoppels

• The true principle of promissory estoppel is where one party has by his words or conduct
made to the other a clear and unequivocal promise which is intended to create legal relations
or effect a legal relationship to arise in the future, knowing or intending that it would be acted
upon by the other party to whom the promise is made and it is in fact so acted upon by the
other party, the promise would be binding on the party making it and he would not be entitled
to go back upon it. • It is not necessary, in order to attract the applicability of the doctrine of
promissory estoppel that the promisee acting in reliance of the promise, should suffer any
detriment. The only thing necessary is that the promisee should have altered his position in
reliance of the promise.

⮚Hence, as the doctrine is a principle of equity, the courts have taken a prerogative to lay
emphasis on equity and justice and have explained the doctrine of promissory estoppel in
India. ⮚The ingredients for the application of the doctrine are: • That there was a
representation or promise in regard to something to be done in the future, • That the
representation or promise was intended to affect the legal relationship of the parties and to be
acted upon accordingly, and, • That it is, one on which, the other side has, in fact, acted to its
prejudice.

• The principle of estoppel in India is a rule of evidence incorporated in Section 115 of The
Indian Evidence Act, 1872. ⮚The section reads as follows: • When one person has, by his
declaration, act or omission, intentionally caused or permitted another person to believe such
a thing to be true and to act upon such belief, neither he nor his representative shall be
allowed, in any suit or proceeding between himself and such person or his representative, to
deny the truth of that thing.

• In India, there are two stages in the evolution of the application of this doctrine; pre-Anglo
Afghan case and post- Anglo Afghan case. • Prior to this case, the position was that
promissory estoppel did not apply against the Government. But the position altered with this
case. ⮚Union of India v. Anglo Afghan Agencies (AIR 1968 SC 718) • In this case the
Government of India announced 100% concession under Section 3 of the Imports and
Exports (Control) Act, 1947 with regard to the import of certain raw materials in order to
encourage export of woolen garments to Afghanistan. Subsequently, only partial concessions
and not full concessions were extended as announced. The Supreme Court held that the
Government was estopped by its promise. • Thereafter the courts have applied the doctrine of
promissory estoppel even against the Government.

⮚Essential characteristics to make promise binding on Government: ⮚The following are the
essentials to make any promise binding on the Government:

1) The State makes the promise within the ambit of law. 2) There is an intention to enter into
a legal relationship. 3) The other party must do an act in furtherance of that promise or is
forbidden to do anything.

⮚No estoppel against statute and law

• The doctrine of estoppel does not apply to statutes. In other words, a person who makes a
statement as to the existence of the provisions of a statute is not estopped, subsequently, from
contending that the statutory provision is different from what he has previously stated. A
person may not represent the true status of a statute or law, but the other person who relies on
such a representation is at liberty to find out the position of law on the matter and as the
maxim says, ‘ignorance of law is no excuse.’

⮚Jit Ram Shiv Kumar v. State of Haryana (AIR 1980 SC 1285) • In this case Bahadurgarh
municipality granted exemption under Sec. 64 of Punjab Municipal Act, 1911 as amended by
Punjab Act of 1953, from octroi for developing a mandi, but subsequently is revoked the
exemption. Later it again granted the exemption in keeping with the terms of the original sale
of plots, but levied taxes again. Even so, a claim of estoppel against its legislative power was
not allowed.

⮚The following conditions have been laid down as necessary to invoke the maxim of ‘no
estoppel against a statute': • The parties must bilaterally agree to contract irrespective of
statutory provisions of the applicable Act. • The agreement entered into by the parties must
be expressly prohibited by the Act. • The provision of law must be made for public interest
and not pertain to a particular class of persons. • The agreement of the parties should not have
been merged into an order of the court which by the conduct of the parties had been
dissuaded from performing its statutory obligations.

⮚Application of Doctrine of Promissory Estoppel to Government

• The doctrine of promissory estoppel has also been applied against the Government and the
defence based on executive necessity has been categorically negatived. The Government is
not exempted from liability to carry out the representation made by it to its future conduct and
it cannot on some undefined and undisclosed grounds of necessity or expediency fail to carry
out the promise made, solemnly by it. • The Supreme Court in various cases has refused to
make any distinction between a private individual and public body so far as the doctrine of
promissory estoppel is concerned. But if the promise is on behalf of the Government is
unconstitutional, against any statute or against public policy the question of promissory
estoppel against Government does not apply. Thus, the Government through its officers is
bound by the
doctrine and cannot invoke any defence for their inaction, unless backed by statutory
authority.

⮚Limitations • Since the doctrine of promissory estoppel is an equitable doctrine it must

yield when the equity so requires. If it can be shown by the Government that having regard to
the facts as they have subsequently transpired, it would be inequitable to the Government to
abide by the promise made by it, the court would not raise an equity in favor of the promise
and enforce it against the Government.

• The doctrine of estoppel cannot be invoked for preventing the Government from acting in
discharge of its duties under the law. The doctrine cannot be applied in teeth of an obligation
or liability imposed by the law. • It cannot be used to compel the Government or even a
private party to do an act prohibited by law. • There can be no promissory estoppel against
the exercise of legislative power. The legislature can never be precluded from exercising its
legislative functions by resort to the doctrine of promissory estoppel.

⮚C. Sankaranarayananv. State of Kerala (AIR 1971SC 1997) • The appellant was a teacher
in a private aided school in Kerala while the other appellants were at the relevant time
teachers in government schools. The teachers associations of Government as well as aided
schools submitted a memorandum to the Government making various demands, one of them
being that the age of retirement of school teachers should be raised to 60 years. On July 1966
the Government issued an order by which the age of retirement was raised from 55 to 58
years. However on May 4, 1967 another order was made by Government in super cession of
the earlier orders and the age of retirement of all government employees and aided school
teachers was again fixed at 55 years.

• On both occasions necessary amendments were effected in the Kerala Service Rules made
by the Governor in exercise of the powers conferred by the proviso to Art. 309 of the
Constitution, as well as in the Kerala Education Rules, 1959 framed by the Governmentunder
s. 36 of the Kerala EducationAct, 1949. • When the Government sought to retire the
appellants at the age of 55 years they filed writ petitions in the High Court. The petitions
were dismissed. • The SC held that the power of the Government under Art.309 of the
Constitution to make rules regulating the conditions of service of government employees or
of teachers in the aided schools under s. 12 of The Act, 1959 could in no way be fettered by
an alleged agreement between the government and teachers even if such an agreementwas
proved. • The rule of estoppel also could not be invoked in the circumstances of the case.
There was no question of any representation having been made by the Government which
was acted upon to their detriment by the appellants. • The court also did not allow the plea of
estoppel against the Government if it had the effect of repealing any provision of the
Constitution.

⮚Mulamchand v. State of Madhya Pradesh (AIR 1968 SC 1218) • Before the coming into
force on April 1, 1951 of the Madhya Pradesh Abolition of Proprietary Rights (Estates,
Mahals, Alienated Lands Act, 1950) the appellant had purchased from certain proprietors of
land the right to collect forest produce from the said land during the years 1951, 1952 and
1953. The right was to be enjoyed after April 1, 1951 on which date under the aforesaid Act,
the proprietary rights came to vest in the State of Madhya Pradesh.

• The Deputy Commissioner acting under s. 7 of the Act prevented the appellant from
enjoying the rights he had acquired from the proprietors, and in April 1951 auctioned the
right to collect forest produce from the land. The appellant deposited Rs. 10,000 to acquire
the right of collecting lac from the said land during 1951, 1952 and 1953. He collected some
lac but thereafter filed a suit claiming refund of the deposit of Rs. 10,000 on the basis that
there was no valid contract between him and the State of Madhya Pradesh as the provisions
of Art.299 of the Constitution were not complied with and the contract was void. The trial
court granted him a decree but the High Court decreed against him.

• The Supreme Court did not apply estoppel against the Government in cases of contracts not
entered into in accordance with the form prescribed in Article 299 of the Constitution. The
court held that if the estoppel is allowed it would mean the repeal of an important
constitutional provision, intended for the protection of the general public.

⮚Century Spinning and Manufacturing Co. Ltd. v. Ulhasnagar Municipality (AIR 1971
SC 1021) • In this case the Ulhasnagar municipality agreed to exempt certain existent
industrial concerns in the area from octroi duty (Octroi, tax levied by a local political unit,
normally the commune or municipal authority, on certain categories of goods as they enter
the area) for a period of seven years. However, later on it sought to impose duty. • This was
challenged and the Supreme Court, while remanding the case to the High Court, held that
where the private party had acted upon the representation of a public authority, it could be
enforced against the authority on the grounds of equity in appropriate cases even though the
representation did not result in a contract owing to the lack of proper form.

⮚Motilal Padampat Sugar Mills v. State of U.P. (AIR 1979 SC 621) • This case is a
trendsetter regarding the application of the doctrine of promissory estoppel against the
Government. • In this case the Chief Secretary of the Government in 1968 gave a categorical
assurance that total exemption from sales tax would be given for three years u/s 4A of the UP
Sales Tax Act, 1948 to all new industrial units in order to establish themselves firmly. Acting
on this assurance the appellant sugar mills set up a hydrogenation plant by raising a huge
loan. • Subsequently, in May, 1969 the Government changed its policy and announced that
sales tax exemption will be given at varying rates over three years. The appellant contended
that they set up the plant and raised huge loans only due to the assurance given by the
Government. • The Supreme Court held that the Government was bound by its promise and
was liable to exempt the appellants from sales tax for a period of three years commencing
from the date of production.

⮚Central Airmen Selection Board v. Surender Kumar (Appeal (civil) 251 of 1994). • In this
case an advertisement was published in the Employment News of 23rd February, 1990
inviting applications from eligible candidates for appointment to the post of Airman in the
technical trade underthe Indian Air Force. • The advertisement prescribed that the candidate
should be born between 31st March, 1971 and 1st July, 1997, but the upper age limit was
relaxable by two years in case of those who had passed the Intermediate examination. It is
also not in dispute that the date of birth of the respondent is 13th July, 1970. Therefore, he
was not eligible for the post as he was over age, but however age relaxation was permissible
in the case of the respondentif he had passedthe Intermediate examination.

• When the final checking was done it was found that the petitioner had failed in the subject
chemistry in his +2 examination and, therefore, he was not justified in claiming that he had
passed +2 examination which entitled him to claim relaxation in the matter of age. • The
court held that a person, who has himself misled the authority by making a fake statement,
couldn't invoke the principle of estoppel, if his misrepresentation misled the authority into
taking a decision, which on discovery of the misinterpretation is sought to be cancelled.

⮚Significance of the doctrine of promissory estoppel in India • When a person relies on

the Government's promise and invests hard earned money and the Government afterwards
does not abide by its promise then it creates a position where the person's investment is in
danger and he becomes helpless and paralyzed. The judiciary in India has played a very
significant role in making the State responsible and accountable and made it abide by its
promise.