Administrative Law [1 ed.] 9789350432952, 9788183189002

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ADMINISTRATIVE lAW I. A. Saiyed Advocate, Notary and Professor, New Law College, Mumbai, Author of Labour Laws, Family Law and Industrial Law.

Foreword By Justice Abhay S. Oka of Bombay High Court

I

First Edition: 2007

1

Hal GJ-limalayaGpublishingGf!ouse MUMBAI • DELHI • NAGPUR • BANGALORE • HYDERABAD

©

AUTHOR No part of this book shall be reproduced, reprinted or translated for any purpose whatsoever without permission of the author and publisher in writing.

ISBN

: 978-81-83189-00-2

First Edition: 2007

Published by

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Contents No.

Name

(1)

INTRODUCTION

(2)

Page No. 1 -

14

RULE OF LAW

15 -

22

(3)

SEPARATION OF POWERS

23 -

31

(4)

EXEClITlVES (The Government)

32 -

53

(5)

LEGISLATURE - I (A wing of Sovereign State with 'Ultimate Power' to Legislate)

54 -

58

(6)

LEGISLATURE - II (Delegated Legislation)

59 -

88

(7)

JUDICIARY - I (Principles of Natural Justice)

89 -

102

(8)

JUDICIARY - II (Remedies. Tribunals and Inquiry Commissions)

103 -

135

(9)

JUDICIARY - III (Judicial Control on Administrative Discretion)

136 -

167

(10)

JUDICIARY - IV (Redress through Courts)

168 -

202

(11)

ORDINARY REMEDIES OR

203 -

226

(12)

EXECUTIVES - II (Government Privileges and Immunities)

227 -

253

(13)

EXECUTIVES - III (Control on Government)

254 -

260

(14)

EXECUTIVES - IV (Public Undertaking & Public Corporations)

261 -

276

EQUITAB~

REMEDIES

"This page is Intentionally Left Blank"

CHAPTER-l

INTRODUCTION SYNOPSIS

1. 2. 3. 4. 5.

Meaning of Administrative Law Origin of Administrative Law Nature of Administrative Law Need of Administrative Law Definition of Administrative Law Definitions given by: (i) Prof. A V. Dicey (ij) Sir Ivor Jennings (iii) Prof. Wade (iv) K.C. Davis (v) Griffith & Street (vi) Indian Law Institutes 6. Sources of Administrative Law 7. Growth (Development) of Administrative Law (a) The Historical Background of the Growth (b) Reasons for the Growth of Administrative Law (c) The Growth in India of Administrative Law (i) Before Independence (ii) After Independence 8. Constitution of India and Administrative Law 9. Constitutional Law and Administrative Law 10. Distinction between Administrative Law and Constitutional Law

(1)

ADMINISTRATIVE LAW

2

1. MEANING OF ADMINISTRATIVE LAW Administrative Law means Law relating to Sovereign States OR Law relating to Administration OR Law relating to Executives OR Law relating to Government. It appears to be so simple. But it is difficult to be so simple, for unless the terms like '''Sovereign States", "Administration" "Executives" and "Government" are clearly understood, it is difficult to comprehend the meaning. And to understand these terms, we must first understand their origin. Traditionally, it is understood that God rules us. The God makes the King and the King then rules us. Thus, King replaces God. The King is the Sovereign and the territory in which he rules is the 'Sovereign State. By "Sovereign State" we mean the whole nation or the entire country. The Sovereign State is also briefly called as the "State" and in any "State" there must be some ultimate power that is capable of declaring Law for the entire Country. When the world was small, it was the King who was all-powerful but with the advent of time, concept of King {one man} ruling the country underwent a change and a new concept of Separation of Powers was born. According to new concept, the powers [of King {one man}] were given over to three organs, {I} Legislature, {2} Executives and {3} JUdiciary. However, it is the 'Executives' who have become synonymous with "Sovereign State" or the brand name of Executives is given to "Sovereign State". Thus, for limited purpose the term 'Executives' can be freely exchanged with the term "'Sovereign State". Turning now to "administration" and 'Government', it can be said that term "administration" means the 'Government' of the day or 'body of persons', for the time being, carrying on the 'Government'. Whereas, the term 'Government' means the "Rulers" or the "Executives" of the day. Indeed, the concept of Government is not static and it keeps on changing from time to time, inasmuch as Government comes and goes but whosoever comes in power i.e., the Rulers of the day, is the Government of the day. In the light of this, it should now be clear that "Executives" run the 'administration" or the "'Sovereign State" or the 'Government' and hence it is said that: Administrative Law means(a)

(b)

(c) (d)

Law Law Law Law

relating relating relating relating

to to to to

Sovereign States, or Administration, or Executives or Government

However, as aforesaid, the term Executives does not include in it the "Legislatures" and Therefore; it should also be clear that Administrative Law would exclude it, however, in absence of any watertight compartment, it is difficult to comprehend the concept of "Executive" without the study of Legislatures and Judiciary. As such, notwithstanding the fact that Executives exclude Judiciary and Legislatures, yet they are indirectly included in it. '~udiciary"

INTRODUCTION

3

2. ORIGIN OF ADMINISTRATIVE LAW The "Administrative Law" is only a small part of the entire "Law". But what is entire Law?

As aforesaid, King has replaced God and Law has replaced the King. Therefore, it only means, we can be punished only by Law for the breach of Law and for nothing but for the breach of law. In other words, there is absolute supremacy of Law or so to say the Rule of Law prevails over everywhere. The "Rule of Law' theory was elaborated and popularized by Prof. A. V. Dicey, the most eminent Scholar of England. He maintained that in England all men are equal in the eyes of law. They can be proceeded against (a) only in the ordinary courts and (b) in accordance with the ordinary law. As such in Epgland according to Dicey, no man can plead his 'status' or 'office' as his defence. However, in France under the Administrative Law or the droit administratif there were separate Courts known as Administrative Courts or the Counsel d'Etat, which had the exclusive jurisdiction over the Government "Officials". Prof Dicey compared and contrasted the French "Droit Admininstratif' with the "Rule of Law" and that (criticism of Prof. Dicey of Droit Administratif) brought to the light the concept of "Administrative Law". However, it is not that earlier the Administrative Law was non-existing and it came to be born only after Dicey's said criticism. In fact, the origin of Administrative Law can be traced to ancient time "Dharma" of India. What we understand "Dharma" in India includes in it the Administrative Law of the modern age. Even if not it can certainly be included because the concept of "Dharma", keeps on changing inasmuch as what was not included before can now be included in Dharma Thus, Dharma (of ancient time) can be taken as the Administrative Law (of the modern times).

3. NATURE AND SCOPE OF ADMINISTRATIVE LAW Traditionally, the duties and responsibilities of the King (Sovereign State) were protecting subjects from internal and external attacks and in case of need, make available the civil supply to the subjects. However, with the advent of time, these duties and responsibilities increased so enormously that the Sovereign States could not discharge their duties effectively unless they are given adequate Powers and Authority. The Sovereign States, therefore, gave to themselves more powers and authority to deal with the new situation created by the advent of time. Thus when enormous powers came to be vested with the Sovereign State, it was but natural to know: What are the powers of the State? What are the limits of those powers? What is the structure of the power? What are the checks and prevents over those powers? What are the authorities who can exercise those powers? And so on. The study of all these and such other questions demonstrates the nature of the administrative Law. It must be noted here that the nature of activities varies with the social, economic and political conditions in the Sovereign State. For example, in USA, the business activities are mostly private and hence the State performs more of regulatory functions. But in China and Russia, where the business activities are mostly State-run, the State performs mainly the managerial functions. In U.K. and India where it is mixed, the State acts both in regulatory and managerial capacities.

ADMINISTRATIVE LAW

4

4. NEED FOR ADMINISTRATIVE LAW The need of Administrative Law can be enumerated thus: -

A.

B.

C. D. E.

F.

A Sovereign State could not confine itself only to its traditional functions like, civil supply and defence. The reasons why the States had to give more and more powers to it are an independent issue. But with the increase in powers of the State, it is but natural that we study the powers, limits of powers, control on such powers, remedy in case of misuse, abuse or non-use of powers and that explains the need of administrative law. The Judiciary, undoubtedly, primary concern with dispensing justice, nevertheless, the reasons which are not presently necessary to enumerate, the Executives are given powers even the powers of judiciary to adjudicate. The State has set up Administrative Tribunals and empowered its Executives to discharge quasi-judicial functions. This also explains the need of Administrative Law. The Executives of the State are vested with powers of legislation under the Theory of Delegated Legislation. This also adds to the needs of administrative law. As a matter of fact, the reasons for the development and growth can be taken as the need for the administrative law (as discussed below). The administrative law helps the Government to run the administration smoothly and efficiently and at the same time helps the citizens to combat with the Government and affords protection from injustices caused to citizens by the actions and orders of the Government. The Administrative Law thus strikes the balance between the citizens and Government and that marks outs its needs. It is said that the administrative law helps the Government to run the administration smoothly and efficiently and at the same time helps the citizens to combat with the Government. The administrative law affords protection to citizens from the injustices caused by the Government. Thus, the administrative law strikes the balance between the two (government and the citizens).

5. DEFINITION OF ADMINISTRATIVE LAW Definition by Sir Ivor Jennings (ii) Prof. Wade (iii) K.c. Davis (iv) Griffith & Street (v) Indian Law Institutes It is, indeed necessary to define the term Administrative Law to delimit its (q) Operation (b) Oppression and (c) the Field of study. However, it is difficult to evolve a satisfactory definition that can demarcate articulately its nature, scope, extent and content. For the definition, it is said that one can only explain Administrative Law but cannot define it. In fact, Prof A. V. Dicey went to the extent of saying "in England we know nothing of administrative law and we wish to know nothing about it; But the modern British approach can be seen in the definition given by Sir Ivor Jennings. (i)

INTRODUCTION

5

Definition by Sir Ivor Jennings. He defines the term 'Administrative Law' as The Law relating to Administration. It determines the Organisation, Powers and Duties [of the administrative authorities]. Interestingly, the Constitutional Law too deals with the Powers and Duties of administrative authorities, then what is the difference between the Administrative Law and the Constitutional Law? The definition (given by Sir Ivor Jennings) is silent. Again, as per the definition, the Administrative Law deals with the "Powers" of Administration. Then can the Administration deal with the Public Health or the Town Planning or such other issue? The answer is an emphatic no. Further more, the definition does not deal with the remedies a citizen may have against the administration, in case of a grievance against the administration and in case of grievances against the administration. No doubt, despite the fact that this definition (1) does not distinguish administration law from the Constitutional law, (2) it is too vary wide, and (3) it does not speak of the remedies; Nevertheless, it is the most acceptable definition.

Definition by Prof. Wade. The Administrative Law is concerned with the Operation and Control of the powers [of administrative authorities] with emphasis on function rather than on the structure. It is true that according to Prof. Wade, the administrative law is concerned with keeping the governmental powers within checks and bounds of law, nevertheless, the following questions remain unanswered;

(i) (ii) (iii)

(iv) (v) (vi)

What "Procedures" are government officers required to adopt? What are the "Limits'" within which the Authorities have to confine themselves? If those "Limits" are not followed, then what can the citizens do for it? What are the remedies against the illegalities of the Administration? One is at loss to learn about the powers and duties of the administrative authorities. It also does not throw any light on the procedure.

Definition by an American author; K. C. Davis. The Administrative Law is : The law concerning the power & procedures of administrative agencies including law governing judicial review of administrative action. There is something like the Substantive (or main) Law. The Administrative Law is very much concerned with the Substantive Law but the definition ignores it wholly. As a matter of fact, it is the primary function of the Administrative Law to enforce the main law. Only that the one who is given Power (to enforce that law) has to follow the Procedure. Thus, this definition, no doubt speaks of Power and Procedure but it wholly ignores the Substantive Law. Further, undoubtedly, administrative law excludes the Legislature and Judiciary, yet it is not that administrative functions do not include some work of adjudication which is the work of Judiciary and the Legislative functions in the form of prescribing rules and regulations.

ADMINISTRATIVE LAW

6

However, this definition excludes such administrative functions, which are admixture of (i) Judicial & administrative and (ii) Legislative & administrative. By Griffith and Street

The main object of Administrative Law is: The operation and control of administrative authorities. It must deal with the following; -

(1) What sort of powers does the administration exercise? (2) What are the limits of those powers? (3) What are the ways in which the administration is kept within those limits? The Indian Law Institutes adds two more aspects to complete the concept of administrative law, namely. (4) What are the procedures followed by the administrative authorities? (5) What are the remedies available to a person affected by administration?

6. SOURCES OF ADMINISTRATIVE LAW The administrative law, perhaps, has the same sources as any other branches of English Law because the administrative law is part of the Ordinary Law of the Land. However, the Administrative Law is very closely concerned with the Government. Ideas of Government change or rather keeps on changing. But the ideas of the Government have the great influence on Law and Practice. The Documents, which show as to how the concept of Government has changed, therefore, can be said to be the sources of the Administrative Law. The first of its kind of Document is 'The New Despotism' a book published in 1929 by Lord Hewart the former Chief Justice. The book pointed out that Parliament gave the Executives most wide powers and that too without laying down complementary controls. His book set in motion the investigation and consequently, a Committee on "Ministers' Powers" was set up which gave its Report in 1932. This Committee Report is known as the 'Dinoughmore Report'. The effect of the Dinoughmore Report can be seen in the passing of the Statutory Instruments Act 1946. This Act did have, to some extent, effect on the rules regulating subordinate legislation. This report was reviewed in 1953 but nothing turned on that. In 1955 a new Committee was set up whose report is known as the Franks' Report of 1957. As a result, the Tribunals & Inquiries Act 1958 Act was passed. This Act was replaced by the same title Act of 1971. Thus, the "New Despotism", the "Dinoughmore Report" and the "Franks Report" can be taken as the primary sources of administrative law. The other sources of administrative law can be enumerated as under:

(i) (if)

Statute: The Laws enacted in the country are the law of the land and necessarily, therefore, can be included in the sources of Administrative Law. The Subordinate Legislation: It is an open secret that the Legislatures in any country have very short time and very often not fully equipped to legislate the every word of the Law. This is the primary reason amongst others that the Legislatures pass on their responsibility of laying down Law upon the Executives of the (Sovereign) State. The Law laid down by the Executives can also be included in the sources of Administrative Law.

INTRODUCTION

(III)

(Iv)

(v)

(vi)

(vii)

(vIII)

7

Laws made by the Authorities which are the "State" under Article 12 of the Constitution of India: The civic authorities and the other agencies of the State do not lay down law. Nevertheless, the Circulars and Directions issued by them are virtually the Law and hence these too can be included in the sources of Administrative Law. The Law of Precedents: It is indeed not the function of the judiciary to lay down the Law for the (Sovereign) State. But undoubtedly, the rulings of the Courts also become the Law of the Land inasmuch as those rulings are to be followed in the subsequent cases and hence the precedents of the courts' ruling too can be included in the sources of Administrative Law. It may, however, be noted in this context that the ruling of the Courts are divided into two parts, (1) the reasoning of the judge for coming to a particular decision and (2) the Order of the Court. The reasoning of the Court always precedes the Order and hence the Order and the reasoning both are included in the 'Precedents' and hence in the Administrative Law. Rulings of Administrative and the Quasi Judicial Authorltles:- In legal field, the term "Law of Precedents" is applicable only to the Higher Courts, like the High Courts and the Supreme Court in India. However, apart from the rulings of these courts the rulings of the Administrative Tribunals and the Quasi-Judicial Authorities of the modem times also form the sources of Administrative Law. Legal Principles: The Statutes have their roots in the jurisprudence or what is called as the legal principles because otherwise no statute can exist if it is not based on .tny sound principle of law. Thus, the jurisprudence also can indirectly be taken as the source of the Administrative Law. Practice and Procedure: - No doubt the practice and procedure do not make the law and they are very much subordinate to law. Nevertheless, the breach can very well be treated as the breach of Law, and hence can be included in the sources of Administrative Law. Documents: - Since the documents are connected with and since they are part and parcel of the Court rulings or the Statutes or the Subordinate Legislation, the documents too can be treated as the source of the Administrative Law. It may be noted that very often the Legislatures of modern time set up Inquiry Commissions, the Law Commissions, the Committees on subordinate legislation etc. All these Commissions and Committees then submit reports on the basis of which law is enacted or not enacted or action is taken or not taken. The Reports of these Commissions and Committees thus, indirectly become the source of Administrative Law.

7. THE GROWTH (DEVELOPMENT) OF ADMINISTRATIVE LAW (a) The Historical Background (of Growth & Development) (b) Reasons for the Growth of Administrative Law (c) Growth in India.

8

ADMINISTRATIVE LAW

GROWTH (a) The Historical Background of Growth (or Development of the Administrative Law) Traditionally, functions of the Government were to protect the subject from attack. within the country and from outside the country. It was only if there was any difficulty in the country that the Government would arrange for the civil supply. Some of the reasons for which the Sovereign State (Executives) came to be invested with more and more powers can be enumerated thus: (i)

The outbreak of world wars created such an emergency that no options was left with the Sovereign States but to enact more and more laws. These enactments invested enormous powers in the executives of the (Sovereign) States. The (Sovereign) States had to enact more and more statutes for (Public) Safety, Health, Transport, Morality, Social security, Social Welfare, Housing Projects, Development Projects- Trading and. so on. Although wars ended but, for whatever reason, the laws enacted during those times were not repealed. (ii) The advancement of Science and Technology. As a result of advancement of science and technology, the automation came and with it came the Steam Navigation. Then it become necessary for the State to introduce the system of inspection of Steamboats so as to provide protection to the users against its hazards. (iii) The Revolution brought about the "industrialization" and the industrialization in its turn brought about the enormous increase in activities of the State, (iv) The desire of people to provide themselves with the social security and the welfare added flavour to it. The State, therefore, undertook the work of running Railways, Airlines, Ships, etc. (v) The growth of humanitarian prompted the State to undertake the protection against unemployment, pension, etc. (vi) Urbanization and growth in population created scarcity of resources, which in its turn, called upon the State to take appropriate measures like town planning, etc. (vii) The unscrupulous modern businessmen drew the attention of the State to create an atmosphere of healthy business. This resulted in creating the devices and control of private enterprises. In whatever capacity the State functions, the prime object of the State is to maintain Law, Order and Peace. For this reason, Executives are invested with more and more powers and that in its turn spells outs the reason for the growth of the administrative law.

DEVELOPMENT The Administrative Law is not a new phenomenon; however, it has come to the public notice from the time of end of First World War. As is too well-known, the Administrative Law is very closely concerned with th~ Government, but then what is Government? The concept of Government keeps on changing from time to time and it is never static. The Document, which shows as to how the concept of Government has changed, reveal the development of administrative Law.

INTRODUCTION

9

(b) Reasons for the Growth of Administrative Law The (Sovereign) States, as recorded above, gave itself more and more powers (a) during the time of and (b) for the reasons of (i) world wars, (ii) industrial revolution and (iii) scientific advancement This explains the reasons as to why Executives came to be invested with more and more powers and that in its turn spells out the reason for the growth of the administrative law at first instance. There are, however, other reasons also. Some of them are as under: (i)

(ii)

(iii)

(iv)

(v)

(vi)

The Two World Wars are over but not the wars. Similarly, the scientific advance is a continuous process and it continues endlessly. Thus, the growth of administrative law continues on this account also. The ordinary courts of law of the land are over-burdened with work. As such, the litigation between citizens and the State has now come to be transferred to the Administrative Tribunals. Thus, the judicial system is one of the reasons for the growth of the administrative law. The legislation, undoubtedly, is a separate wing of the Sovereign State. Nevertheless, the "Rule making" powers are given to Executives only. The Executive thus, not only performs the administrative work but also the duties which otherwise fall in the domain of the legislatures. Thus, combining the functions of two different wings of the Sovereign State (namely Legislature and Judiciary), can also be the reason for the growth of administrative law. No doubt, it is the work of the Legislatures to lay down the law. However, very often the modem legislators do not have the sufficient technical know-how and expertise knowledge of the subject matter. The Executives who are experts and have knowledge of the subject matter, in effect prepare the edifice of the proposed legislation. Thus in effect, it is the Executives who make the law. This gives new dimension to the study of administrative law and adds to the reasons of its growth. The traditional relationship between the Sovereign State and its Subject has changed entirely. That also explains the reason for the growth of administrative law. Once the law is enacted, it is difficult to repeal. However; the Executives have the facility of making rules, regulations and laying down the procedure as an experiment. If found suitable and workable, the same can be perpetuated. However, if any improvement is considered necessary, it can be improved upon and then made permanent. The experimenting method is very useful but that being the subject matter of administrative law; it gives one more reason for its growth.

(c) The Growth In India (of Administrative Law)

(a) Before Independence (b) After Independence (a) Before Independence: What we understand as 'DHARMA: in India, includes in it the Administrative Law of the modern age. Even if not, it can certainly be included because the concept of "Dharma" keeps on changing inasmuch as what was not included before can now be included in Dharma. Thus, Dharma (of ancient time) can be taken as the Administrative Law (of the modern times). Nevertheless, it is true that in India, the concept of administrative law came along with the British System of Law along with the East India Company. Therefore, a small Legal History of administrative law, in India, would not be wholly out of place.

10

ADMINISTRATIVE LAW

The East India Company was created, in 1600, by Royal Charter essentially as a Treading Company. Its official title was: "The Governor and Company of Merchants of London trading into the East Indies". The company enjoyed exclusive trading rights in the countries of East, Cape of Good Hope and no British subject could carry on the trade, as the Company was given the monopoly. The Royal Charter had conferred limited legislative powers on the East India Company under which the Company could make, ordain and constitute laws, orders and constitutions for the good government of itself, all its servants and for better advancement and continuance of its trade and traffic. In 1615, James First sent Sir Thomas Roe as ambassador to the Moughal Emperor Jahangir. A Royal Farman was then issued under which British were allowed to establish factory at Surat. Surat was then a very prosperous port-town on the western coast of India. On December 14, 1615, the King conferred on the Company a general power to issue such commission on its Captains to inflict death penalty for capital offences such as murder or mutiny and put martial law in execution during the long sea voyages. In 1661, sovereignty of Bombay was transferred to King of England by the Portuguese King in dowry when the King of England married the sister of Portuguese King. Bombay then became the Presidency of Bombay. It was the only Presidency in India. As for the Settlement at Madras, the East India Company acquired a plot of land on the Eastern coast from the local Raja and St. George Fort was built on it. Black Town and White Town then came to be settled within the St. George Fort. This Settlement of Madras was looked after by an Agent and Council, subordinate to the Governor at Surat. As for Calcutta, a Zamindari of three villages on the bank of Hooghly was purchased and a Fort William was built. The Calcutta Settlement was founded in 1690. The Charters of 1661 and 1668 gave vast powers to the East India Company to maintain law, order and discipline not only amongst its servants but also in the settlements under them. The powers were so very vast that the East India Company could even administer and impart justice in the territories under them. On March 1718, a Court of Judicature at Bombay was established. It consisted of an English Chief Justice, 5 English Judges and 4 Indian Judges. It appears, the Indian judges did not enjoy equal status with the English judges. They were not counted for the purpose of quorum of Court fixed at 3. In the record of each day's proceedings, name of each English Judge was specifically mentioned but the Indian judges were collectively described as Black justices. Before 1726, there was no separation between Executives and Judiciary. Further, only a crude version of English Law was administered by non-professional judges (of East India Company) who themselves did not have the adequate knowledge of English Law. Not only this but also the Courts (of East India Company) did not have the direct authority of British Crown behind them. Therefore, for this reason, the administration of justice was executive oriented and it was the thumb rule of the Executives. After! 726, by a Royal Charter, (1) judiciary was made independent from the Executives, (2) a uniform judicial system was introduced (indeed for the settlements under the control of the East India Company) and (3) the Mayor's Courts were established. It may be clearly noted that,

INTRODUCTION

11

as such, the Mayor's Courts had the Royal Authority. For the first time, a provision was made for appeals to the Privy Council. But, all said and done, the Governor and Council (Executives) were to hear the appeals from the Mayor's Court and that they could dismiss the judge of the Mayor's Court (called as 'Elderman'). The judges continued to be non-professionals. In 1753, another Charter was passed giving powers of appointing judges of Mayors' Court to the Governor and the Council (Executives). Needless to record, the judiciary was subservient to the Executives. In 1765, the Moughal Emperor, Shah Alam gave Diwani (right to administer territories) of Bihar, Bengal and Orissa to the East India Company bringing an end to the Indian sovereignty. In 1773, the British Parliament passed the Regulating Act by which the East India Company was brought under the control of the British Parliament and British Crown. In other words, the Indian territories which were hitherto directly ruled by East India Company' were then ruled by the British Crown and British Parliament through the East India CompaFly.· Jhe three Presidencies, namely, (1) Presidency of Bombay, (2) Presidency of Madras and (3) Presidency of Bengal came into existence. By Regulating Act of 1773, a new government under the Governor General in Council was established. The Governor of Bengal was designated as the Governor-General of Bengal. Similarly, the Presidencies of Bombay and Madras were also brought under the control and superintendence of the Governor-General. These Governor General and Council were vested with powers to provide remedies against illegalities and oppressions committed by the Company's servants. They were also empowered to make rules, regulations and ordinances not repugnant to British Law. In 1774, the Supreme Court of Judicature at Calcutta was establish~ and, for the first time, the professional judges came to be appointed. The appointment and removal of the judges were not put in the hands of the Company's Executives. They were appointed by the British Crown and they were to hold office during the Crown's pleasure. NO DOUBT, the growth of Administrative Law, in India, was slow but sure. The slow growth was perhaps and in all probabilities for the reason of British Policy of Free Trade in India. Nevertheless, the British Government did undertake measures of (Public) Safety, Health, Transport, Morality, Social Security, Social Welfare, Housing Projects, Development Projects, Trading and so on. The British India did pass several enactments like The The The The The The and

State Carriage Act, 1861, Opium Act, 1878, Epidemic Diseases Act, 1897, Indian Boilers Act, 1897, Dramatic Performances Act, Companies Act soon.

HAVING passed plethora of enactments, the British India Government then had to undertake measures of supervision over these enactments. For this reason, the British India Government had to appoint the Executives. The appointment of executives, in its turn, raised several questions, viz.,

ADMINISTRATIVE LAW

12

What are powers of the State? What is the structure of the power? What are the limits of those powers? What are the checks and prevents over those powers? What are the authorities who can exercise those powers? and so on. The study (of all these and such other questions) makes the existence of Administrative Law felt in India too.

(b) After Independence: After, independence, India gave to itself the Written Constitution, The written Constitution of India deals with (i) Organisation and (ii) Powers of: (1) Legislatures, (2) Judiciary and (3) Executives with which we are concerned with. The modern India is now the 'Social Welfare State' and has accepted for itself to (a) provide Social Security, (b) Social Welfare, (c) regulate the industrial relations and (d) run the basic industries, like Housing Projects Development Projects Railways, Airlines, Shipping And so on. Thus after framing of the Constitution of India, all administrative or executive acts must stand to the tests provided under the Constitution of India. Therefore, needless to say that the Constitution of India provides the "'breeding" ground to the growth of Administrative Law in India.

8. CONSTITUTION OF INDIA & ADMINISTRATIVE LAW In India, Constitution gives the outer limits for the functions of the government and it marks out respective powers of Legislatures and Executives. The Courts are given power under the Constitution to adjudicate the legality, validity and propriety of the actions and orders of the Executive. A Statute passed by the Parliament or the State Legislatures and the rules framed there under must confirm to the constitutional validity. Thus in India, the Constitution is supreme and it empowers judicial control over everything else. Articles 32, 136, 226 and 227 of the Constitution of India provide for such judicial control.

9. CONSTITUTIONAL LAW AND ADMNISTRATIVE LAW When (Sovereign) States invest enormous powers in their Executives, it is but natural that these powers are studied and kept under control. Therefore, one needs to know several things and needs to answer several questions, such as.

INTRODUCTION

13

What are the powers of the State? What are the limits of those powers? What is the structure of the powers? What are the checks and prevents over those powers? What are the authorities who can exercise those powers? The study of all these and such other questions make the Administrative Law. THEN what is Constitution Law and whether there is any distinction at all between the two? The distinction. whatever it may be, surely, helps in limiting the study of the two. Before entering the thicket of controversy, it is necessary to bear in mind that the Constitution in any given country depends upon several factors, such as, social, economic and political conditions in the Sovereign State. However, there is always identity of (a) purpose and (b) 'fundional- similarity' amongst all the different Constituents, inasmuch as all different Constitutions of different countries refer and relate to (i) Organisation and (ii) Functions of Government (a) of the day (b) in power. For the purposes of considering distinction between the Constitutional Law and the Administrative Law, all the different Constitutions (of different countries) are taken as one. Thus, there can be different Constitutions but there are no different Administrative Laws, it is all the same at all the places. While noticing the fact that there are different Constitutions, it is worthwhile to first notice the difference between administrative and constitutional systems in India and Britain. So far as Britain is concerned, the Law enacted by the British Parliament prevails and there is no judicial system to test or challenge the validity of an Act of Parliament. As such (in England) an administrative action can be challenged only if the impugned administrative action is ultra ultra-vires the statute and in no other way; whereas in India, an administrative action can be challenged in more than one way. It can be challenged on the ground that (a) The impugned action is not in accordance with the Rules and Regulations. (b) Rules and Regulations are not in accordance with the parent Act and hence the imputed action is bad. (c) Rules, Regulations and/or the parent Act are all unconstitutional. (d) In fact, any change brought about in Constitution (of India) itself, can be challenged if the change (amendment) is not brought about in conformity with the basic structure of the Constitution. Earlier to Administrative Law coming to light by criticism of 'droit administratif' of France by Prof. Dicey the subject matter of Administrative Law was dealt with the Constitutional Law only. Eyen the definition of Administrative Law was identified and included in the Constitutional Law, perhaps, for the reason that the Administrative Law and the Constitutional Law do not differ with each other because both are concerned with the functions of the Government. However, as" far as India is concerned, its Constitution deals with (i) the general principles relating to Judiciary, Executives and Legislature (ii) inter-se functions of Judiciary, Executives and Legislature and (iii) the general principles relating to Judiciary, Executives and legislature with the public. The administrative law deals only with the Execut~ves - civil servants, public departments, local authorities, and public corporations. Indeed it is only part of the constitution of India. It is, in this context, the observations of Hood Philips (in his book "Constitutional

14

ADMINISTRATIVE LAW

History" can be appreciated better that the Constitutional Law is concerned with the Organisation and functions of government at rest while administrative law is concerned with that organisation and functions in motion. This distinction indeed is not entirely correct but be it as it is. It is also said that both belong to the family of 'Public Law'. However, in modern systems, even taxation, military and other systems of law too are included in 'Public Law' but such topics cannot be included in Administrative Law. As it stands, the Administrative Law deals mainly with ;ninish~rial circulars/memoranda decisions of local authorities/public corporation, however, it is not the concern of the ordinary civil court and as such, the administrative law, in a sense, may not be treated as law at all.

10. DISTINCTION BETWEEN CONSTITUTIONAL LAW

ADMINISTRATIVE

LAW AND

It seems that in essence, the two (administrative Law and Constitutional Law) do not differ and yet there is a fine thread of distinction; it is only notional not fundamental. Therefore, some authors rightly observe that it is logically impossible to distinguish administrative law from constitutional law and all attempts to do so are artificial. Real or artificial, it is certain that the distinction is one of degree, convenience and custom rather than that of logic and principle.

DOD

CHAPTER-2

RULE OF LAW SYNOPSIS 1. 2.

3. 4. 5. 6. 7. 8. 9. 10.

General The Meaning (a) Supremacy of Law (b) Equality before Law and (c) Predominance of Legal Spirit Ordinary Courts & Administrative Courts (Counseil d'Etat) Droit Administratif Counseil d'Etat Prof. A. V. Dicey's Thesis Critically Examined Criticism of Prof. A. V. Dicey's View The Modern View of Rule of Law Rule of Law under Constitution of India Some provisions of Constitution of India

1. GENERAL In mediaeval times, under :Jus naturals' of the Romans and even in our times, it is understood that we may be compelled to act in accordance with certain principles because God desires us to do so for the good of the people and if we fail to follow these principles, God may punish us. The God makes the King and the King makes the Law. Thus, the King replaces God and Law replaces the King. Therefore, we can now be punished only for the breach of Law and for nothing but for the breach of law. It means, there is absolute supremacy of Law or to say - there is absolute supremacy of the Rule of Law. The Chief Justice, Sir Edward Coke, during the reign of James-I originated, for the first time, the theory of 'Rule of Law'. However, it was Prof. A. V. Dicey, the most eminent Scholar of England, who elaborated and popularised its concept at the end of Victorian age of laissez faire -in 1885. Therefore, now, the Rule of Law is identified with Prof. A. V. Dicey. (15)

ADMINISTRATIVE LAW

16

2. THE MEANING The Rule of Law, according to Prof A. V. Dicey, means "no man is punishable or can be lawfully made to suffer in body or goods except for a breach of law established in the ordinary legal manner before the ordinary courts of the land". From this Statement of Prof. A. V. Dicey, three ingredients of the Rule of Law can be noticed: (a) Supremacy of Law (b) Equality before Law and (c) Predominance of legal spirit

(a) Supremacy of Law Prof. A. V. Dicey says that a man can be punished for the breach of Law, but can be punished for nothing else. Therefore, according to him, wherever, there is discretion; there is a room for arbitrariness whereas for the supremacy of law, there must be total absence of arbitrary power. It is because if discretion is given to any person, he is likely to use it arbitrarily and thus the supremacy of law is destroyed at the hands of arbitrary powers. On the other hand if no discretion is given and when there is no scope of its arbitrariness then no man can be arrested without due process of law. In pith and substance:-

The Government is subordinate to Law AND Law is not subordinate to the Government (b) Equality before Law According to Prof. A. V. Dicey, in England, all persons were subject to one and the same ordinary law of the land administered by the ordinary courts of law. If anyone guards the freedom of ordinary citizen, it is the Law Courts. Equality before Law would mean that every person irrespective of his status, office or rank would be liable to the same consequences. As such, no one can plead as defence his status or office either in civil courts or in criminal courts. Thus, according to Prof. Dicey, exemption of Civil Servants from the jurisdiction of the ordinary courts of law and providing them with Special Tribunal was the negation of Equality before Law.

(c) Predominance of Legal Spirit rtccording to Prof. Dicey, like the England, even if Written Constitution is absent in any country then also the citizens can be ensured their freedom if they have the 'right' enforceable in the Court of Law. According to him the 'rights' would be secured more adequately if these "rights' were enforceable in "Law Courts" than by mere declaration in Documents, like the Constitution. Thus, the Law Courts are the protectors of liberty of ordinary man in the country. Prof. A. C. Dicey said "our Constitution, in short, is a judge made law."

3.

ORDINARY COURTS & ADMINISTRATIVE COURTS (COUNSElL d'ETAT)

For a 'Dispute' (Lis) to arise, it is not necessary that the parties should come to blows but at the same time, there must exist a dispute or difference between two (or more than two) parties. No doubt, unless there is a dispute (Lis) or difference of any sort, no question arises of resolving it. But when a dispute or difference arises, the method of resolving it can be either by

RULE OF LAW

17

coming to blows or by adopting some peaceful method. For resolving the Dispute (Lis) peacefully, the "Law of the Land' sets up a machinery whereby the disputes, wherever and whenever, they arise are amicably and constitutionally resolved lest there is anarchism in the State. Such machinery is in the form of Ordinary Courts of law where disputes (Lis), whenever and wherever arise, are amicably and constitutionally resolved. If government is not one of the parties in the dispute (Lis), such disputes are identified as fautes de personelles and if some organ of the Administration or the authority of Government is a party, such Disputes (Lis) are identified as fautes de service. Ordinarily, all Disputes (Lis -fa utes personelles and fautes de service) are resolved in Ordinary Courts set up under the Ordinary Law of the Land. However, in France, separate Administrative Courts (Counseil d'Etat) are set up for the settlement of fautes de service or the disputes against the Government officials. In Ordinary Court, if the disputant succeeds, he is compensated or granted appropriate relief. But in the Administrative Courts (Counsell d'Etat), if it is found that the Official had merely performed his duty; he is totally exonerated and the disputant will get no relief against him.

4. DROIT ADMINISTRATIF The French Droit Administratif is the Administrative Law. It permits two types of Laws and two sets of Courts. When a dispute is between two private citizens, it always goes before the Ordinary Courts. But if one of the parties is the administration or if the dispute (Lis) is fautes de service then it always goes before the Administrative Courts or the Counseil d'Etat. Thus in France, the Counseil d'Etat (or the Administrative Courts) have the exclusive jurisdiction over the State Officials. The Officials in France ,enjoyed certain immunities. Whenever, their act falls under the definition of 'State Act' they could not be held responsible either in the Administrative Court or in the Ordinary Court. They always could plead in defence that they had acted in obedience of the Orders of their Superiors. All claims and disputes, in which the authority or the officials are parties, fell outside the scope of the jurisdiction of Ordinary Courts and they must be dealt with and decided by the special tribunals. In case of conflict of jurisdiction between the Ordinary Civil Court and Administrative Court, Counseil D'Etat, the later had the last say in the matter. Thus, in France there is a separate body of rules which regulated the powers, immunities and privileges of State Officials.

5. COUNSElL d'ETAT In France, the Ordinary Courts administered the 'Ordinary Civil Law' as between subjects and subjects. The Administrative Courts (Counseil d'Etat) administered the Law as between the subject and the State. An Administrative authority or official is not subjected to the jurisdiction of the ordinary civil courts exercising powers under the civil law. The Counseil d'Etat is the highest administrative Court in France. Prior to 1872, the Counseil d'Etat was largely a servile instrument of the Emperor but thereafter, it became an independent court. If Counseil d'Etat failed to protect the individuals adequately against the State, it would invite a serious criticism. Counseil d'Etat, technically speaking, was a part of the administration, in practice and in reality; it was very much a Court. Counseil d'Etat gave no less protection to the citizens against the arbitrary actions of the administration than the ordinary courts and thus, really speaking, the actions of the administration were not immune from the judicial control.

18

ADMINISTRATIVE LAW

6. PROF. A. C. DICEY'S THESIS CRITICALLY EXAMINED Prof AC. Dicey, in 1885, compared and contrasted the Rule of Law as prevailed in England with the Droit administratif or the Administrative Law as prevailed in France. He ' pointed out that in England: (1) There was no special body of law (2) There were no special Courts (3) There were no special privileges for the State Officials and (4) There were no special immunities for the State Officials. Prof AC. Dicey noted that in France, there were special tribunals to determine the legality of the acts of administration and the Officials of the State were given certain privileges and immunities against the actions brought by the citizens against them while discharging their duties. However, in England, Prof AC. Dicey further noted that every individual, whether he was a private citizen or a public official he was ruled by the ordinary law and he was subjected to the ordinary courts. On his said two observations, Prof Dicey said that in England, Rule of Law prevailed and there was no administrative law inasmuch as (1) there was no special body of law, (2) there were no special courts, (3) there were no special privileges and (4) there were no special immunities to State Officials. Prof AC. Dicey insisted that the Administrative Authority should not be given absolute or wide discretionary powers. According to him where there is discretion, there is room for arbitrariness and hence arbitrary power is inconsistent with the Rule of Law and so on.

7. CRITICISM OF PROF A. C. DICEY'S VIEW At the outset it must be noted that Prof A.C. Dicey was from England. As such he had only the English Legal System in his mind. Indeed, in England, in his time, there was only one Court for (1) fautes personelles and (2) fautes de service (respectively, the Disputes wherein Government was not the party and the Disputes wherein the Government was the party). Thus, when Prof AC. Dicey came to know that in France, there were Courts, - one for the fautes personelles (Disputes wherein Government was not the party) and another, for the Jautes de service (Disputes wherein the Government was the party), he criticised the said French Legal System. The criticism of Prof AC. Dicey on the French Legal System brought to the fore the concept of Administrative Law or Droit administratif. Prof. A C. Dicey's thesis of Rule of Law has its own advantages and merits although he thoroughly misunderstood the real implication of French Droit Administratif and he was grossly misinformed about the English System of Law. This can be seen from the facts that (1) In England, the Crown enjoyed immunity under the maxim 'King can do no 'wrong.' (2) Even in 1885, there existed a long list of statutes, which permitted exercise of discretionary powers and those could not be called in question in Courts of Law. (3) During the two world wars, the legislatures empowered the Executives to imprison individuals suspected of having relation or association with the enemy. (4) During industrialization, in England, the trade unions took the sway and made it impossible for an individual to earn his bread & butter, if he was not with them.

RULE OF LAW

19

(5) Although Prof. Dicey held the view that all persons are subject to the same law in England and even Lord Daning said "our English Law does not allow a public officer to shelter behind a Droit administratif but under French droit administratif it was possible. Thus, if a private individual, under French droit administratif wishes to sue the administration in respect of fautes de service, he has to go to Counseil d'Etat. According to Prof. AC. Dicey, it was a direct threat to the liberty of individuals. But in England itself, under the Constables Protection Act 1750, the Police Officials had the special powers and complete immunity. They were thus fully protected even in England in the time of Prof. AC. Dicey. (6) Prof. AC. Dicey said "in England, we know nothing of administrative law and we wish to know nothing about it". However, from the modern volumes of the Reports of the Queen' s Bench Division, it will be seen that about half of the reported cases relate to the rules of administrative law. (7) According to Prof. AC. Dicey, "rights" would be secured more adequately if these rights were enforceable in Law Courts than by mere declaration in Documents, like the written Constitution. Thus, the Law Courts are the protectors of liberty of ordinary man in the country. Prof. AC. Dicey said "our Constitution, in short, is a judge made law" and that essentially safeguards the individual liberty. But whether it is a written Constitution or an unwritten constitution, it is always that an unscrupulous government possessing majority can repeal the fundamental safeguards and curtail the powers of the Courts. The Common Law Layers thus do reconcile and admit the existence of the administrative discretion, immunity to State Officials and administrative tribunals; nevertheless, they look upon the French droit administratif with suspicion.

8. THE MODERN VIEW OF RULE OF LAW Though there appears to be a conflict between the Rule of Law and French Droit Administratif, the modern thinkers have very successfully reconciled the two. Prof. AC. Dicey's thesis of Rule of Law was dominated by "Laisses-faire thinking" and as such, he saw merit in absence of discretionary power in the Government. But he failed to distinguish between the discretionary powers and arbitrary power. While arbitrary power is repugnant to the rule of law, discretion is not if properly exercised. The modern States cannot function without exercising discretionary powers and thus they have evolved a device whereby the oppressive, capricious and arbitrary exercise of powers by the administrative authorities can be kept under check and control. The modern critics say that in many respects the. French droit administratif is more effective in controlling the administrative powers than the common law system. It is because, the Counseil d'Etat was no doubt part of the administration; nevertheless it was very much independent from the administration itself and functioned like an Ordinary Court of Law. And even before the Counseil d'Etat the administrative actions were not immune, if such actions were oppressive, capricious or if such actions were taken in arbitrary exercise of powers. Thus, Prof. AC. Dicey misunderstood the real nature of the Counseil d'Etat. If a workman is injured, in France, he will get compensation on the philosophy that "justice requires that the State should be responsible to the workman for the risk where the State runs the business by reason of his part in the public service", so also in England, the workman will get

20

ADMINISTRATIVE LAW

compensation if the Servant of the Crown was found negligent in performance of his State Act. Thus, the French droit administratif also makes the State liable for its torts under droit administratif and there was no sovereign immunity as was misunderstood by Prof. AV. Dicey. Earlier, it was the Police State, now it is the Welfare State and as such, with this change, increase in powers of administration is inevitable. Further, the modern welfare state provides for the delegation of legislative, judicial or the quasi-judicial powers to its Executives. This in turn gives immense powers to Administration/Executives of the State. But the study of:• • • •

Functions of powers of administration. Limitations of powers of administration. Remedies available against the excess, insufficient or improper use of powers by administration. Checks and prevents on interference in the liberty of individuals by administration helps the citizens to overcome the difficulty put forth by Prof. AC. Dicey in cases of conferment of excessive powers on the State Officials.

9. RULE OF LAW UNDER CONSTITUTION OF INDIA Prof. AC. Dicey's Rule of Law has been adopted and incorporated in the Constitution of India The Preamble itself enunciates the ideals of justice, liberty and equality. These concepts are enshrined as fundamental rights and are made enforceable. The Constitution is supreme. If the executive or the government fails to abide by the powers vested in it or if its action is malafide, the ordinary courts of law can quash the same. All rules, regulations, ordinances, byelaws, notifications, customs and usage are laws within the meaning of the Article 13 of the Constitution and if they are inconsistent or contrary to any of the provisions thereof, they can be declared as ultra vires. It is provided in the Constitution that no man shall be deprived of his life or personal liberty except according to procedure established by law or in his property save except by the authority of law. The Government and the public officers are not above law. The King can do no wrong does not apply in India. There is equality before Law. Thus, it will be clearly seen that in our Constitutional System the central and most characteristic feature is the concept of the Rule of Law. But the expression "Equality" must not be taken to mean an 'Absolute' equality. In Ashotosh Gupta us State of Rajasthan, (2002) 4 see 34, the apex Court held that 'similarity in treatment' and 'identical treatment' are contemplated under Article 14 of the Constitution of India. Further, 'Legitimate Expectation' is also at the root of Rule of Law. What is 'Legitimate Expectation'? For a legitimate expectation to arise, the decisions of the administrative authority must affect a citizen by depriving him of some benefit or advantages which either (i) he had in past been permitted by the decision-maker to enjoy and which he can legitimately expect to be permitted to be continued until he has been communicated of some 'rational grounds' for withdrawing the same and on which has been given an opportunity of being heard or (ii) he has received an assurance from the decision-maker that they will not be withdrawn without giving him an opportunity of being heard and till then they should not be withdrawn .. The 'procedural' part relates to 'representation' and the 'hearing' and the 'substantive' part relates to granting or continuing of the benefit of substantive nature and substantively not to be varied. See - Chanchal Goyal us State of Rajasthan, (2003) 3 see 485.

RULE OF LAW

21

10. SOME PROVISIONS OF THE CONSTITUTION OF INDIA. The Constitution of India, in Part III, provides for the Fundamental Rights and guarantees, inter-alia, the RIGHTS, such as, (A) Right of Equality under Articles 14, 14, 15, 16, 17 and 18. (8) Right to Freedom under Articles 19, 20, 21 and 22. (C) Right Against Exploitation under Articles 23 and 24. (D) Right to Freedom of Religion under Articles 25, 26, 27 and 28. (E) Cultural and Educational Rights under Articles 29 and 30, and (F) Right to Property under Article 3l. The Constitution of India, in Part IV, lays down the Directive Principles and makes it incumbent upon (the Sovereign State of) India to make the 'State Policy' as discussed below:-

Article 38

requires (the Sovereign State of) India to strive to promote the welfare of the people by securing and protecting the social order in which justice, social, economic and political standards are included and it (the Sovereign State of India) shall inform all the institutions of the national life.

Article 39

requires (the Sovereign State of) India to direct its POLICIES towards securing -

Article 39-A

(a) equal means of livelihood for all citizens, (b) the best distribution of Community's material resources for the good of the community, (c) non-concentration of wealth and means of production, (d) equal pay for equal work for men and women, (e) proper health and strength of workers and children and that the economic necessity does not force them to enter avocation unsuited to their age or strength, and (f) equal opportunities, facilities and dignity to children and protection against their exploitation and against moral and material abandonment. requires (the Sovereign State of) India to secure legal system that can promote justice on the basis of equal opportunity and the free legal aid to all needy citizens.

Article 43

requires (the Sovereign State of) India to endeavour (1) to secure living wage, good condition of work, decent standard of life and full enjoyment of leisure time, (2) social and cultural opportunities and (3) encouragement to cooperative movement in villages and rural areas.

Article 43-A

requires (the Sovereign State of) India to take steps to secure participation of workers in management of undertakings, establishments or other organisations engaged in any industry.

Article 44

requires (the Sovereign State of) India to endeavour to secure Uniform Civil Code.

22

ADMINISTRATIVE LAW

Article 45

requires (the Sovereign State of) India to make provisions for free and compulsory education for children.

Article 46

requires (the Sovereign State of) India to promote educational and economic interests of Schedule Castes, Schedule Tribes and other weaker sections.

Article 47

requires (the Sovereign State of) India to (1) raise the level of nutrition (2) the standard of living and (3) improve public health.

Article 48-A

requires (the Sovereign State of) India to (1) protect environment, (2) improve the environment (3) safeguard the forests and (4) wild life of the country. It invests in Supreme Court and High Courts the Writ Jurisdiction to check the administrative excesses and arbitrariness as is clear from the provisions.

Article 13

lays down that the Administration's Legislative Acts, orders, bye-laws, rules, notifications or the delegated legislations can be challenged on the ground of violation of any of the Fundamental Rights guaranteed under the Constitution.

Article 32

lays down that Supreme Court shall have powers to issue directions or orders or writs for the enforcement of any of the Fundamental Rights enumerated above.

Article 226

lays down that the High Courts established in each State shall have powers to issue directions or orders or writs for the enforcement of any of the Fundamental Rights enumerated above.

Article 227

lays down that the High Courts shall have the power of superintendence over all courts and tribunals in relation to which it exercises jurisdiction.

Article 300

makes Government liable for the torts committed by its servants.

Article 310

incorporates the Doctrine of Pleasure but subject to Article 311.

Article 311

protects Government servants of the government action which suffers from legality, validity and propriety.

DOD

CHAPTER-3

SEPARATlON OF POWERS SYNOPSIS

1. 2. 3. 4. 5. 6. 7.

Introductory Historical Background Meaning of Separation of Powers Criticism Legal History of Application of Doctrine The Form of Government -with its Merits & Demerits Application of Doctrine (a) Application in USA (b) Application in England (c) Application in India 8. All India Services 9. Public Service Commissions 10. Functions of Public Service Commissions

1. INTRODUCTORY In any Sovereign State, there must be some "ultimate power" capable of altering and declaring the LAW. For the Mediaevaiists, the 'Commandments' of God had the force of Law. ~us Naturale' was the Roman Law. Hitler was the Law unto him. However, it is said that ultimate power should not be in the hands of only One Authority because "power corrupts and absolute power corrupts absolutely". Therefore, in modern era, there is separation of powers. As such, the said ultimate power (capable of altering and declaring the Law) is now vested in three different wings of the Sovereign State as under: (1) Legislature, (2) Judiciary, and (3) Executives. (23)

ADMINISTRATIVE LAW

24

If all these powers are vested in one, monarch or senate, apprehension may arise, lest the same monarch or senate should enact tyrannical laws to be executed in tyrannical manner. Hence, the Separation of Power stems from the RULE OF LAW which means that the ultimate powers hitherto vested in one person is vested in three different authorities.

2. HISTORICAL BACKGROUND The Doctrine of Separation of Power is traceable to Plato and Aristotle. But it is Montesquieu, a French Scholar, who conceived and formulated this doctrine systematically, scientifically and clearly in his famous book "[esprit des Lois" published in the middle of the eighteenth century. He founded that concentration of Powers in one person or group of persons would result in tyranny. He, therefore, felt that the Governmental (Sovereign) powers should be vested in three different organs, namely, the Legislature, Executives and Judiciary. For the justification, it is said (by Lord Acton) that 'every power tends to corrupt and absolute power corrupts absolutely' and therefore, the 'Ultimate Power' should not vest in one hand. In 18th Century, in France, Louis XIV was well known for his absolute and autocratic powers. On the other hand, the British Constitution, in 18th Century, gave Englishmen the full liberty. The secret of Englishmen's liberty was the separation and functional independence of the three departments of the government from one another.

3. MEANING OF SEPARATION OF POWERS The Separation of Power may mean three different things:(i) (ii) (iii)

The same person should not form part of more than one of three different organs of the Government. The one organ of the Government should not control or interfere with the functions of the another organ AND One organ of the Government should not exercise the function of another organ.

4. CRITICISM The doctrine of separation of power, no doubt, is very good but it is not all that free from the shortcomings. Some of the shortcomings can be as under:. (a)

The doctrine is based on the assumption that the three functions of the Government viz., Legislative, Executive and Judicial are divisible from one another. But in fact, it is not so. The truth is that each of the three functions of the Government contains elements of the other two and that any rigid attempt to define and separate them must either fail or cause serious inefficiency. (b) If this doctrine is accepted, it will be difficult to function. Because if Legislature can only legislate then it cannot punish anyone committing a breach of its privileges; nor can it delegate any legislative function to anyone, even though it does not know the details of the subject matter. Similarly, the courts could not frame rules of procedure to be adopted by them for the disposal of the cases. (c) The modern State is a Welfare State and it has to solve many complex socioeconomic problems and in this state of affairs it is not possible to stick to this doctrine.

SEPARATION OF POWERS

25

(d) The fundamental object behind the doctrine was the liberty and freedom of an individual. But that cannot be achieved by mechanical division of functions and powers. In England doctrine of Separation of Power is not accepted and yet it is known for the protection of individual liberty. It is said, "Montesquieu look across foggy England from his sunny vineyard in Paris and completely misconstrued what he saw". All it means that the whole doctrine of Separation of Powers in the strict sense is undesirable and impracticable. It is not accepted fully in France, England, and USA and even in India.

5. LEGAL HISTORY OF APPLICATION OF DOCTRINE After partition, the Constituent Assembly functioned as a sovereign body unfettered by any restrictions on its powers to frame a Constitution for India. On August 29, 1947, the Constituent Assembly of India then appointed a Draft Committee to frame the Constitution for the sovereign of India. Before the framers of Constitution for India, was the plight of survivors of World War II, the shattered wrecks of once decent men and women tottered into the arms of wives and mothers, humanity bowed its head in shame. The framers of Constitution for India, therefore, included the Human Rights in the Constitution to be made for India. Then the history of struggle for political freedom in India had made a declaration of fundamental rights inevitable. It is said, and it is well said, that the test of a Constitution is the protection which it gives to minorities. The Constitution to be made for India, therefore, had to take care of protection of the minorities also. Similarly, mere declaration of rights is worthless without the Will of the means to enforce them. As such, the framers adopted the means for such enforcement too. Once a Federal Constitution was decided upon, there was no lack of models to draw upon. These models fell broadly into two categories,(l) the U.S. Constitution and (2) the Constitution Acts enacted by the British Parliament establishing federal constitutions for Canada, Australia and India - namely, the British North America Act, 1867, the Commonwealth of Australia Constitution Act, 1900, the Government of India Act, 1935 respectively. The framers of Constitution for India adopted Parliamentary System or the Cabinet System in preference to the Presidential System adopted in the USA. As such, the basic doctrines, - (a) the doctrine of separation of powers and (b) the doctrine that legislatures are the delegates of the people - do not form part of the Constitution of Britain or the Constitution of India.

6. THE FORM OF GOVERNMENT -with its merits and demerits The main feature of Parliamentary form of Government is that the Government or the Executive is made responsible to the Legislature. There is a 'titular head' or the 'Constitutional Head' of the Executives whose functions are formal and ceremonial. This head of the Executives may be President in India or a King/queen as in England. The real executive power is vested in the Council of Ministers with the Prime Minister at the head. The Prime Minister and his Cabinet are collectively responsible to the Legislatures and remain in office so long as they (Prime Minister and his Cabinet) remain in power or in office and so long as they enjoy the confidence of the Legislature. Needless to record that the Prime Minister and the Members of his Cabinet are elected by the people of a given constituency. It is possible that a person who is not elected is appointed as the Minister or the Prime Minister. But such a person ultimately will have

26

ADMINISTRATIVE LAW

to be got elected within the time limit prescribed for the purpose and thus it is safe to say that only the elected person can be ultimately appointed as the Prime Minister or the Minister. The Prime Minister and Member of his Cabinet are responsible to Legislatures. The legislatures being the delegates of the people only, the Prime Minister and Member of his Cabinet are ultimately responsible to people only. The 'Collective Responsibility' of the Council of Ministers would mean that the Council of Ministers is, as a body, responsible (1) to the House of People and (2) for the general conduct of the affairs of the Government. The decisions of the Council of Ministers are regarded as the joint decisions of the Councils of Ministers and it is the duty of every Minister to support them in the Parliament and outside the Parliament, even if a particular minister may not have remained present when the decision was taken. A minister who is not prepared to support the decision of the Cabinet has to gracefully resign and go. In addition to collective responsibility, a Minister is individually also responsible to the affairs of his department or his ministry.

7. APPLICATION OF DOCTRINE (a) (b)

(c)

In England In U.S.A In India.

(a) In England

In Great Britain, the King is the nominal executive head (in India, the King is replaced by President). The real executive power vests in the cabinet with the Prime Minister at the head (in India too the real executive power vests in the cabinet with Prime Minister at the head). It is the Cabinet which formulates ordinances through the King (in India also the Cabinet formulates ordinances but through the President because President replaces the King). The King is to exercise his powers on the advice of the cabinet with the Prime Minister at the head and the advice is binding on him (similarly, the President has to act upon the advice of Prime Minister and his Cabinet and the advice is binding upon the President). The members of the Cabinet, including the Prime Minister, are collectively responsible to the House of Commons (in India, the Prime Minister and his Cabinet are collectively responsible to the Lok-Sabha as well as the Rajya-Sabha). They remain in office so long as they enjoy the confidence of the House of Commons (in India too the Prime Minister and his cabinet remains in power so long as they enjoy the confidence of Lok-Sabha). The Prime Minister and other ministers are also members of legislature (so also is the case in India). The Legislature of Great Britain enjoys the judicial powers as well. The House of Lords, the Upper House of Legislature (Rajya Sabha of India) is the Highest Court of appeal. The cabinet through the King introduces the Bill in Parliament. Certain Bills can only be introduced by Cabinet through the King. In England too judges exercised not only Executive powers but also the legislative powers. So also the members of Cabinet are conferred with powers of subordinate legislation, as they are members of legislature. They (members of Cabinet) also exercise judicial powers. The House of Commons is, no doubt, concerned with legislative activities, it is also concerned with judicial powers in case of breach of its own privileges. From the above discussion, it may be clearly noted that the theory of disintegration of powers is followed in England also but not in its totality.

SEPARATION OF POWERS

27

(b) In USA:

Legislative powers are vested in the Congress and also in India. The Congress in USA is same as Members of Parliament in India. Executive powers are vested with the President. Although, in India too, the President is the executive head but he is merely a titular head inasmuch the Executives take actions - in the name of the President. Judicial powers are with Supreme Court and the Courts are subordinates to it, so also is the case in India. The Supreme Court in USA and India is independent. It can declare the action of Executives as well as of the legislature as unconstitutional. These and several other provisions of the Written Constitution of USA clearly demonstrates in-built device of "Checks and Prevents" inasmuch as the functioning of one organ of the Government is checked by the other organs of the Government. However, the rigours of doctrine are now relaxed in USA too. The first departure from acceptance of the doctrine is seen from the fact it allows the judicial review. Then it may be noted that the President exercises legislative function inasmuch as he sends message to the Congress and veto the bills passed by the Congress. The treaties entered into by President are required to be ratified by the Senate, the Upper Chamber and the Union Legislature. The Congress has the judicial power of impeachment of President. When the Senate meets for his impeachment, the meeting has to be presided over by the Chief Justice. The Congress has even delegated its legislative functions to administrative authorities. Thus, it should be fairly clear that in USA also the doctrine is not fully applicable in its totality. (c) In India:

At one glance it appears, from the provisions of the Constitution of India, that the doctrine of Separation of Powers is accepted in India. Some of the provisions are as under:-

Article 52 lays down that the Executive powers (of the Union or the Central Government) are vested in the President and Article 162 that lays down the Executive powers of the State (Government) are vested in the Governor of the State. Article 74 lays down that the President of India can discharge his functions with the aid and advice of the Councii of Ministers. The advice tendered by Council of Ministers is usually binding on him. In case, the President is not agreeable to the advice of Council of Ministers, he can, at the highest, require the Council of Ministers to reconsider such advice. But if the Council of Minister after reconsideration tenders the same advice, it is binding on the President. Similarly, the powers in respect of Governors are given in Article 163. Article 79 states that the Parliament shall consist of (1) President and (2) two houses, namely, Council of States (Rajya-Sabha) and House of People (Lok-Sabha). Similar powers for Governors are laid down in Article 168. Articles 72 and 161 vest powers respectively in President and Governors to grant pardons etc. and to suspend or remit or commute sentences. It is clear that the President of India and the Governors of the State have the Executive powers and they are also the part of Parliament/State Council (Vidhan-Sabha). Article 61 lays down the procedure for impeachment of the President for violation of the Constitution. From the above proVisions of the Constitution of India, it appears that the doctrine of Separation of Powers is accepted in India. But if the provisions of the Constitution are carefully examined, it will be clearly seen that the doctrine, in its strict sense, is not fully accepted inasmuch as there is no provision in the Constitution, which divides the functions of Government. The President and Governors have the Executive powers, yet they can make Laws by issuing

28

ADMINISTRATIVE LAW

ordinances and exercise legislative powers. The President also decides cases like (i) disqualification of Members of Parliament, (ii) disputes about the age of a judge of High Court or Supreme Court and so on. Similarly, though the Parliament exercises legislative functions yet in certain cases, it exercises the judicial functions also. Thus, it (Parliament) can decide the question of breach of its privileges and if proved can punish the person concerned. In case of impeachment, one House acts as a prosecutor and the other House investigates the charges and decides whether they were proved or not. The later is purely judicial function. In the same way, the Supreme Court and the High Courts have supervisory powers over all subordinate courts and tribunals. These Courts frame rules and regulations. These Courts frame rules and regulations for the disposal of cases. Although the doctrine has not been recognized under the Constitution of India, in its absolute rigidity, the Constitution makers have meticulously defined the functions of various organs of the State. Legislature, Executives and Judiciary have to function within their own sphere demarcated under the Constitution. No organ can usurp the functions assigned to another. In Jawaya us. State of Punjab. AIR 1955 SC 549, the Hon'ble Supreme Court of India had held to the effect that the DOl."irine of Separation of Power is not accepted fully in the Constitution of India. In Supreme Court Employees' Welfare Assn. us. Union of India, AIR 1990 SC 334, it was held that the Courts cannot direct Executives to enact a Law under its legislative authority. The apex Court also took the view in D.C. Wadhua us. State of Bihar. AIR 1987 SC 579, that it (Courts) cannot allow flagrant violation of constitutional provisions. In Asif Hameed us. State of J&K, AIR 1969 SC 1899, the apex Court had observed thus: ''Although the Doctrine of Separation of Power has not been recognized under the Constitution in its absolute rigidity but the Constitution makers have meticulously defined the function of various organs of the State (Legislature, Executives and Judiciary) have to function within their own sphere demarcated under the Constitution. No organ can usurp the function assigned to another..... "

8. ALL INDIA SERVICES Article 312 of the Constitution of India provides that if it is necessary and expedient in the national interest, the Parliament may by law provide for the All India Services and also for the All India Judicial Services by resolution supported by not less than two-third of the members present and voting. Article 312 also provides that provision for the All India Service or Judicial Services will be common to the Union and the States and subject to the provisions of Articles 308-313. The provisions can also be made to regulate (a) the recruitment and (b) the conditions of service of persons appointed, to any such service. Indeed, it is not necessary that such provisions should be made by the Parliament itself. In General us. State of Punjab. AIR 1959 SC 512, it was held that the delegation of powers conferred in this respect does not take away the Legislative Powers which reside in the Parliament. The hitherto Indian Administrative Service (lAS) and the Indian Police Service (IPS), Indian Revenue Services (IRS), the Indian Forest Services (IFS) etc. are deemed to be the services created by Parliament under this Article. Article 312-A makes provisions in respect of power of Parliament to vary or revoke conditions of service, prospectively or retrospectively. By the Twenty-eighth Amendment Act, 1972 it is expressly made clear that what is provided in Article 312 will not apply to any person who is (i) the Chief Justice or (ii) other judges (a) of Supreme Court or (b) High Courts, (iii) the Controller and Auditor-General of India, (iv) the Chairman or (v) other members of the Union

SEPARATION OF POWERS

29

State Public Service Commission and (vi) the Chief Election Commissioner. Whereas, Article 312-A lays down the powers and the authority of the legislature to regulate the conditions of service of persons other than those specified. It also makes it clear that neither the Supreme Court nor any other Court shall have jurisdiction in (a) any dispute arising out of any provision of or any endorsement on any Government agreement or other similar instrument or any letter issued to such person in relation to his appointment or his continuance in civil service. OR (b) any dispute in respect of any right, liability or objection under Article 314 originally enacted.

9. PUBLIC SERVICE COMMISSIONS Article 315

lays down that there shall be a Public Service Commission for each State and that two or more States may agree to have a Joint Public Service Commission for them. For such Joint Commission, it is necessary to pass a resolution by the House or where there are two Houses, by each House or the Legislature of each of those States. The Parliament too can provide for the joint State Public Service Commission to serve the needs of those States. Any such law may contain such incidental and consequential provisions as may be necessary or desirable for giving effect to the purposes of the law. With the approval of the President, the Public Service Commission can also serve all or any of the needs of the State.

Article 316

lays down that the Chairman and other members of a Public Service Commission be appointed. It also provides for the provisions for the term of their office. It further lays down that the Union Commission or a Joint Commission shall be made by the President and the State Commission shall be made by the Governor of the State. Article 316 also lays down that, as nearly as one-half of the members of every Public Service Commission shall be persons who have held office for at least 10 years under Central or State Government. In computing the period of 10 years, the period before the commencement of this Constitution has to be taken into consideration. The office of the Chairman of the Commission cannot remain vacant or affected by absence of the Chairman. In such cases, the President or the Governor, as the case may be, has to appoint any other Member as the Chairman of the Commission.

Article 316(2)

lays down that President of the Public Service Commission shall hold the office for 6 years or until he attains the age of 65 years. The age of retirement in the case of a State Commission or a Joint Commission is 62 years. A member of a Public Service Commission can resign by his letter addressed to the President or the Governor, as the case may be.

Article 317

makes provisions in respect of removal and suspension of Chairl11an / Members of Public/State Service Commission by order of the President! Governor, as the case may, on the ground of misbehaviour. However, before such removal, it is necessary that the President of India, makes a reference to the Hon'ble Supreme Court of India and thereupon, the Court holds an inquiry as contemplated under Article 145. Only upon the Report of the

30

ADMINISTRATIVE LAW

Supreme Court, the Chairman or such other member, as the case may be, can be removed. Even for the purposes of suspension, the very same procedure is required to be followed.

Article 317(3)

provides for the removal of Chairman or the member of the Union/State Commission, as the case may be, if he (i) is adjudged insolvent or (ii) in any paid employment outside the duties of his office or (iii) is unfit to continue in office by reason of infirmity of mind or body. If the Chairman or any other member of a Public/State Service Commission is or becomes interested in any contract or agreement or participates in any way in the profit thereof or receives any benefit/emoluments will be deemed to be guilty of misbehaviour for the purposes of this provision. A Member/President of the Public Service Commission is entitled to be reappointed on the expiration of his term of office.

Article 318

provides for making regulations for the Union/Joint/State Commission by the President/ Governor, as the case may, for (a) determining the number of members and their Service Conditions and (b) number of Staff Members and their Service Conditions. After appointment. the Service Conditions of Staff Members cannot be varied to their disadvantage.

Article 319

lays down that (a) on ceasing to hold office, the Chairman/Member of the Public Service Commission is not eligible for further employment under CentraVState Government. (b) But he can be appointed as Chairman/ Member of the Union/State Public Service Commission.

10. FUNCTIONS OF PUBLIC SERVICE COMMISSIONS Article 320

provides that it shall be the duty of the Union and the State Public Service Commission to conduct examination for appointment to the Central or the State Government respectively. Necessarily, the Commissions have a right to publish the examination results, which in its turn means that the Commission can withhold and/or cancel exam or the result. It is also the duty of the Public Service Commission, if requested, to assist the States in framing and operating schemes of joint recruitment for any services for which any special qualifications are required. In Kajol Kumar us. State of WB. 1978 Lab. I.e. 459, the Calcutta High Court held that undoubtedly the Commission can cancel the result but when the aggrieved party has acted upon the result or even when the results are not acted upon, the Court must be satisfied that the act of the Commission was bona fide or that the Commission had acted within its limits or that its said us. Rafiquddin, AIR 1988 action was reasonable. Whereas, in State of SC 162, the apex Court held that once the Commission determines the norms for an examination, prepares the list of successful candidates and recommends it (list) to the Government, the Commission cannot then reopen the selection and lower down the norms at the instance of the Government.

u.P.

SEPARATION OF POWERS

Article 320(3)

31

requires that for Civil Services and Civil Posts, the Union or the State Public Service Commission shall be consulted (a) on all matters of recruitment (b) on the principles of making appointments, promotions, transfers and (c) suitability of candidates for appointments, promotions or transfers (d) on all disciplinary matters, including memorials or petitions relating to such matters (e) on any claim for the cost incurred by any person in defending the legal proceedings instituted against him in respect of acts done or purporting to be done in the execution of his duty to be paid from the Consolidated Fund of India (f) on any claim for the reward of a pension in respect of injuries sustained by a person while in service. It is the duty of the Public Service Commission to advice on any matter referred to them by the President or the Governor, as the case may be. However, the President may make regulations for all-India Services or other Services/Posts in the Central Government. So also the Governor may make the regulations for the State Government. They may also specify the matters in general or in any particular class of casfo in any case, it will not be necessary for the President or the Governor, as the case may be, to consult the Service Commission. In Jitendra Kumar us. State of Punjab, AIR 1984 SC 1850, the Hon'ble Supreme Court India made it clear that the provisions of clause (3) of Article 320 are only directory and not mandatory. Whereas in D'Si/ua us. Union of India. AIR 1952 SC 1130, the Hon'ble Supreme Court India held that the functions of the Commission are merely and purely advisory. The Hon'ble Calcutta High Court in Rama Chaudhary us. Secy, of Gout of WB., AIR 1984 Cal. 265, took the view that the Commissions' advice is not binding on the Government and, therefore, the Government should not act upon its advice blindly.

Article 321

states that by enactment, the Parliament or the State Legislature may lay down additional functions for the Union or the State Commissions for the services in the (i) Central or (ii) State Government (iii) Local Authorities (iv) any other Corporate Body constituted under any law and/or (v) the Public Institution.

Article 323

requires the Commission to submit to the President the Report of its work annually. The President, in his turn, has to place before the House of Parliament the said Report together with a Memorandum explaining the cause (if any) as to why the advice of the Commission was not accepted. In case of the State Commission, the report has to be submitted to the Governor and the Governor has to place it before the State Legislature.

Article 322

provides that the expenses, salaries, allowances and pension of the Commissions or its staff shall be charged on the Consolidated Funds of India or State, as the case may be.

DOD

CHAPTER-4

EXECUTIVES - I (The Government)

SYNOPSIS

1. 2.

The The (i) (ii)

Government and Administrative Law Working of Government Administrative Process Administrative Function (iii) Administrative Action and (iv) Administrative Instructions 3. Demarcation of Functioning of Executives, Legislatures and Judiciary (A) General (B) Executive (C) Legislature (D) Judiciary 4. Mixed Working of 3-Wings of Sovereign State Distinction Underlying in Working of 3-Wings of Sovereign State (A) Executive (B) Legislature (C) Judiciary (a) General (b) Distinction between Legislative & Executive Functions (c) Distinction between Legislative & Judicial Functions (d) Distinction between Executives & Judicial Functions (I) Lis-inter Partes (II) Quasi (III) Quasi-Judicial (32)

EXECUTIVES· I (The Government)

5. 6. 7.

8. 9. 10. 11. 12.

33

Judicial Functions and Quasi-Judicial Functions-Distinction Quasi-Judicial' Functions - Illustrations Administrative Functions - Illustrations Legislative Functions - Illustrations Administrative and Quasi-Judicial Functions - Distinction Administrative Authorities in India The Secretarial limb of Executives Case Laws

-1. THE GOVERNMENT AND ADMINISTRATIVE LAW The Government can be visualized into two, (i) the Structure of Government and (ii) the Process of Government. The Administrative Law is not concerned with Structure (of Government); it is only concerned with the Process (of Government). Thus, the 'Process of Government' falls in the domain of Administrative Law. The "Structure of Government" falls in the domain of "Constitutional Law.", While the Process (of carrying on business) of Government remains almost the same, the 'Structure' (of Government) differs from country to country because it depends upon the Constitution (written or unwritten) of each country. There is marked difference between the Constitutional Law and the Constitution of India. While the Constitutional Law deals with the Structure of Government of all countries, the Constitution of India deals only with the "Structure of Government' in India. The "Structure of Government" of India is, as is given in the Constitution of India. This makes it absolutely clear that "Structure of Government (of India) can be seen in the Constitution of India but its (Structure of Government in India) can be compared, contrasted and studied in the Constitutional Law. The Process (of carrying on the business) of Government, in relation to India can, undoubtedly, be studied in the Constitution of India but the "Process of Government in general, can be studied only in the Administrative Law. In any case, the Government Resolutions can be interpreted only on the basis of its contents and no other external aid like affidavit. Sisir Kumar Mohanty us. State of Orissa. AIR 2002 SC 2314.

2. THE WORKING OF GOVERNMENT The "Working of Government" can be understood only if we comprehend the meaning of legal phraseologies, such as; (i) (ii) (iii)

(iv)

Administrative Administrative Administrative Administrative

Process, Function, Action, And Instructions.

(f) ADMINISTRATIVE PROCESS

The "Administrative Process" is referred to above as the Process of Government and understood it to mean the "carrying on the business of Government". Traditionally, the business of government was:

34

ADMINISTRATIVE LAW

Preservation of "Law & Order" at home and (2) Protection of the country from foreign attacks. But in the modern times, the Government (Sovereign State) has to concern itself with the welfare of its citizens and hence it has to perform multitudes and multifarious functions (activities). As such, the "Business of Government now can be differently classified mainly into two; (I)

(1) Formulating a "Policy ("Policy" which is then enacted as a Statute, and (2) Implementation of the Policy, which is in the form of a Statute. The Government takes a decision to lay down a policy in the larger interest of the country. This decision of the Government is nothing but formulating a "Policy". After formulating "Policy"; the Government takes further step to implement it For example. Government takes a "Decision" that every one who wants to drive a vehicle must have a Driving License. This 'Decision' is called as 'Formulating Policy'. This Policy then takes the shape of a Statute (Motor Vehicles Act). For implementing this Government 'Policy' the Government might:(a) Prepare or draft ''Application Forms", (b) Arrange for necessary training, (c) Hold tests and (d) Finally issue licenses, The Policy Makers (MLAs or MPs) are usually amateurs (men of streets), whilst, the Government Officials. (Civil Servants, Secretaries, Technical Officers etc.) are professionals with a career. This partnership of Amateurs-Professionals is an essential feature of today's government. (ii)

THE ADMINISTRATIVE FUNCTION

In modern times, the Administrative Process (carrying on the business of Government) is complex, inasmuch as Government combines in itself the functions of (a) Executive (b) Legislature and (c) Judiciary. To put it differently, it can be said that the Government (Administrative) Functions are telescoped into functions of Legislatures, Executives and Judiciary. Therefore, it is in this context that it is necessary to comprehend the meaning of three terms, (a) Executive (b) Legislative and (c) Judiciary. The Government or Administration or Executives implement the POLICY laid down by the Legislatures. For example, the Legislatures decide - as a matter of Policy - (by Statute) that any person driving a vehicle shall have a Driving License. It is then the function of the Administration (Executive) to implement this Policy (Statute). For implementing this "Policy" (Statute) - the Administration makes rules and regulations generally and also in each particular case. If a citizen is denied the Driving License or if he has any grievance against the Executive of the (Sovereign) State he can approach the Judiciary set up by the Sovereign State. This, in its entirety, is called as the Administrative Process or the Administrative Function. (iii) ADMINISTRATIVE ACTION

The administration (in a given case) may refuse to grant a Driving License for some valid reason. The refusal of administration (to give Driving License) is the Administrative Action. The line between the 'Policy' and 'Administrative Action' is always very thin but distinction between the 'Policy Makers' and 'Administration' is more clear and obvious.

35

EXECUTIVES - I (The Government)

(Iv) ADMINISTRATWE INSTRUCTIONS

The Executives (Administration) determine the 'Policy' and also implement it. The term "Executives" includes in it the 'Civil Servants' and the other officials of the'(Sovereign) State. The "Civil Servants" or the officials of higher ranking may lay down certain guidelines for its subordinate staff. These guidelines are called as the "administrative instructions'. The breach of guidelines may expose the subordinate authorities to disciplinary or some other action. It may, however, be noted here that "Executives' perform not only the "administrative" and "legislative" functions but also they perform some judicial functions. Thus, when 'Executives" (invested with so wide and enormous powers) issue any ''''administrative instruction", can such "administrative instructions" be challenged in any Court of Law? The answer would depend upon the nature of such "administrative instructions". If such "administrative instructions" are for the guidelines of subordinate authorities then such "administrative instructions" have no force of law and breach does not give rise to any cause of action to the aggrieved citizen in the Court of Law, save and except departmental complaint to the superior officer. Notification comes into effect on the date of publication in the Official Gazette and not on the date of notification - 0. S.K. Shukla us State of UP (2006) 1 SCC 314 Mere quoting wrong provision does not invalidate the order - Vikram Junior School Dist. Magistrate (2002) 9 SCC 509

us

There is fine distinction between Notification and administrative instructions. Notification means and implies a formal announcement. A Note cannot but be termed as an administrative instructions. The administration instructions cannot be the substitute for notification Ram kumar us State of Maharashtra, AIR 2003 SC 269.

3.

DEMARCATION OP FUNCTIONING LEGISLATIVES AND JUDICIARY (A) (B) (C) (D)

OF

EXECUTIVES,

General Executive Legislature Judiciary.

A.GENERAL

It is already noted above that the functioning of modern Government is divided into three, Legislative, Judiciary and Executives. Nevertheless, these functioning cannot be labelled in simple terms to be "Solely Executive" or "Solely Legislative" or "Solely Judicial". At the same time it is absolutely necessary to have these functions clearly demarcated, otherwise it may be difficult to exercise proper 'Checks and Balance'. If Checks and Balance is not effective then; (a) the Rule of Law and (b) the personal freedom of individuals may be at stake. Therefore, in order to make the System· of Checks and Balance working and effective, it is necessary to understand the ambit and scope of each of the wings (Executive, Legislative and Judicial). Indeed there are no watertight compartments (for Legislature,

36

ADMINISTRATIVE LAW

Judiciary and Executives}, nevertheless; it is useful to bear in mind the different functioning of each of these three wings. B. EXECUTIVES

As a matter of fact, the Executives take upon them the task of running the entire administration of the Sovereign State. Hence, the Executives are identified with the term "administration" and thus the "Executives" in common parlance means the "administration". (2) Ordinarily, the Executives perform the RESIDUE of the governmental functions; i.e., the functions, which remain after the judicial and legislative functions are taken off. (3) The Executives, primarily, perform the functions of: Initiating = (the new legislation)

(I)

Formulating

=

(rules and regulations for implementing the new Legislation enacted) and

Directing

=

(in individual cases, the general policy (Statute) laid down by legislatures).

Or, in other words, the Executives (a) (b) (c) The

make initiative in introducing new policy implement the policy (Statute) and apply the Policy (Statute) in individual cases. manner and method of performing these functions by Executives can-be as follows: -

(a) Taking Decisions The Policy Makers take a decision, say, only the persons qualified in law will represent others in any Court of Law. The Executives in their turn take a decision as to how to implement this Policy of the Government. Accordingly, the executives draft Application Forms, arrange Education, Test the legal training acquired, give Licenses/Sanads etc. (b) Inspection The Executives appoint Inspectors for checking and controlling the implementation of Law etc. For example, Shop & Establishment Inspectors, ESI Inspectors., PF Inspectors, Factory Inspectors, etc., see that there is proper implementation of Law. (c) Inquiries The Executives also hold inquiries into variety of events. For example, Justice Srikrishna Inquiry Commission was set up to make inquires of the causes of riots. (d) Licensing In modern states, it is often found necessary to bring the activities under some sort of control. For example, Licenses for Beer Bar etc. (e) Enforcement of Standards It is very essential in the Modern Welfare State to keep control and some standard. For example, certificates for "fit for human consumption" 'Expiry Date" etc., are required to be put up on the packets of product.

EXECUTIVES - I (The Government)

37

(f) Conciliation

The Executives also undertake the Conciliation work for the good of the public. For example, under the Industrial Disputes Act, the Executives decide whether an 'industrial dispute' has arisen or whether there is an apprehension of any such industrial dispute and if need be, conciliate in the said industrial dispute. Nature of the Function of Executive OR the Administrative Functions

(1) The Orders of Executives are based on governmental policy. (2) There is no obligation upon the Executives to adopt, a judicial approach in taking a decision. (3) The Executive decisions are usually subjective rather than objective. (4) Unless, rules provide it is not obligatory upon the Executives to follow the rules of evidence. (5 Unless, Statutory provisions of law are contravened, authority can take a decision whether statutes confers such power or not. (6) The Executives can delegate their Functions or there can be even subdelegation-unless, of-course, prohibited by law. (7) It is necessary for the Executives to follow the Principles of Natural Justice. (8) The Executives can undoubtedly exercise their discretion but the exercise of discretion should not be malafide or unreasonable or by way of misuse and abuse of powers. (9) Prerogatives of Writ of Certiorari and Prohibition are not always available against the administrative actions. (10) It may be noted that in modern times the 'administrative process' (running of Government) in the larger interest of Defence can control and regulate the activities of individual citizens. It cannot control and regulate the economic life. It undertakes granting of permits, licenses, registration, assessment of taxes, duties, framing an industrial policy; laying down the limits, etc. If any given function were purely administrative, the remedy would be with the higher administrative authority or with the Courts under its extraordinary jurisdiction (under Article 226 of the Constitution of India). If the function is judicial or quasi-judicial functions (like order of Labour Court), the Writ Courts can be approached (under Article 227 of the Constitution of India) for the judicial review. In Radheyshyam us. State of MP., AIR 1959 SC 107, the Hon'ble Supreme Court of India was called upon to consider two provisions of the C.P. Berar Municipalities Act, 1922. Section 57 empowered the Government to suspend municipality but before passing the Order, it was incumbent upon the Government to hear the Municipality. Whereas Section 53-A laid down that Government can supersede a municipality for a temporary period not exceeding 18 months but there was no provision for giving hearing to municipality before it is superseded. It may be noted that while under Section 57, the Government can suspend the municipality for indefinite period and hence hearing was provided for, whereas the nature of powers invested under Section 53-A were temporary in nature and hence no provision for hearing was made. The Hon'ble Supreme Court of India, per majority, held that unlike Section 57, the power under Section 53-A were administrative in nature and therefore outside the purview of judicial review. Critically examining the ruling, it

ADMINISTRATIVE LAW

38

may be stated that the concept of judicial review should be broadly and liberally construed so that-"he that takes procedural sword shall perish with the sword." In S.L.Kapoor us Jagmohan, AIR 1981 SC 818, the apex Court has laid down that before suspension of a municipality; hearing must be afforded because such an "administrative action'" entails "Civil Consequences" . In Mohinder Singh Gill us. Chief Election Commissioner, AIR 1978 SC 597, the Court had leaped a step further and 'had held that 'Civil Consequences' covers infraction of not merely property or personal rights but also the civil liberties, material deprivations and nonpecuniary damages. In its comprehensive connotation, the apex court said that everything that affects a citizen in his civil life inflicts civil consequences can be included in the term 'Civil Consequences' and its infraction would call for court intervention. In the following cases, the apex Court has laid down the correct law: • • • • • • • • • • •

Menka Gandhi us. Union of India, AIR 1978 SC 597. Mohinder Singh Gill us. Chief Election Commissioner, AIR 1978 SC 851. S.L. Kapoor us. Jagmohan, AIR 19S1 SC 136. Swadeshi Cotton Mills us. Union of India, AIR 1981 SC 818. A K. Roy us. Union of India, AIR 1982 SC 710. Union of India us. Tulsiram Patel, AIR 1985 SC 1416. OP. Gupta us. Union of India, AIR 1987 SC 2257. Olga TelIis us. Bombay Municipal Corporation, AIR 1986 SC 180. Shepherd us. Union of India AIR 1988 SC 686. Raghupathy us. State of A.p, AIR 1988 SC 1681. Shreeram Durga Prasad us. Settlement Commissioner, AIR 1989 SC 1038.

c.

LEGISLATIVE

(a)

The legislative function consists of enacting Law, binding on all citizens. The Parliament is omnipotent to make Laws for the entire country. Although, there is no restriction on Law making powers, however it may be politically impracticable to obtain necessary mandate on the floor of Parliament and hence it is not possible to make any and every Law. But that is because the 'Sovereignty has to yield to political reality', (b) The Legislature lays down the "general rule of conduct" without reference to a particular case, whereas the Judiciary will lay down the Law with reference to a particular case, which may, in its turn, be followed in other cases in general. Thus, it may be said that the Legislature determines the Policy of Law and enacts that Policy (of Law) into a binding rule of Law. Say, for example, a policy decision is taken that only persons trained in Law should represent others in any 'Court of Law'. This Policy is formulated in the enactment known as the Advocates Act. (c) By legislation, new rights, duties, privileges or immunities (not dependent upon any previous rights), etc., can be created for the first time. The High Court of Gujarat in the case of Fida Ali us. State, AIR 1961 Guj. 152, has discussed the three wings, viz., Legislature, Judiciary and Executives, of the Sovereign State, which can be read beneficially.

EXECUTIVES - I (The Government)

39

(d) So far as India is concerned, there are three elements in the Legislature i.e., (i) Parliament, (ii) Assembly House and (iii) Assent of the President/Governor. It is the Constitutional lawyers who will study the Legislature in detail but for the purposes of administrative lawyers, it is suffice to record that there are two types of Bills i.e. (1) Public or Official Bill or (2) Private Bill. The Public Bills are so called or so classified because of their subject matter and because these Bills are sponsored by the Government of the day. Some privateinterests, on the other hand, move the Private Bills. But once a private Bill becomes the Act, it is as much a Law, as an Act which started its life as a public Bill. (e) The Parliament is supreme and it can legislate, as it likes, nevertheless, there are a few factors, as below, which possess some control on Parliament. (i) Policies of the .parties:Each political party has its manifest program in accordance with its political philosophy. As such, only a certain amount of discretion on controversial matters is taken up. So far as the party in power is concerned, in order to cut short, does not allow detailed discussion on the Bill and carry it by majority. As such, quite often, the details of administrative nature are not even discussed. (ii) Consultation:It has become modern practice to discuss the Bill in private with interested parties and, as far as possible, controversies are resolved, Therefore, very often, the ruling party holds discussion with the opposition parties. (iii) Judicial Control: The Courts indeed have no direct control, however, if an enactment is passed which offends the Constitution, the Courts can quash and set aside (a) the whole enactment or (b) that portion of the enactment which is ultra vires.

D. JUDICIARY (1) Two parties disagree and therefore a dispute (Lis) between them arises. The said dispute is resolved by a Decision. The process of reaching to a decision, by a judge Uudiciary], is called as the judicial process. In the judicial process, one party comes with One's Grievances/Complaint. Then the Other party is given Notice of the Grievances/Complaint. The Other Party then files his reply (Written Statement). Both parties adduce evidence - documentary as well as oral. The Parties (or their advocates), if necessary, advance arguments on the Grievances/Complaint. Finally comes the decision by the judge Uudiciary] on the facts and circumstances of the case before the Court. (2) The Judiciary applies the Rule of Conduct in a particular case for which it investigates, Declares and Enforces LIABILITIES AS IT STANDS. The Pure Judicial Function presupposes existence of a dispute and it has the FOUR requirements; (A) Presentation of case (may not be oral) is required. (B) If the dispute is on Question of Facts then evidence is required.

40

ADMINISTRATIVE LAW

(C) If it is a Question of Law, submissions [arguments] [on the basis of evidence] on

legal issues is required and (D) A 'Decision' on evidence (on facts) and in accordance with Law [for the time being in force] is the last requirement because then the entire matter is disposed off with the decision of the Court. If these requirements are present, the decision is a judicial decision even if it is given not by the Court itself but by the authority, other than the Court.

4. MIXED WORKING OF 3-WINGS OF SOVEREIGN STATE We proceeded on the premises that, in this modern world, functioning of the Sovereign State cannot be labelled in simple terms to be "Solely Executive", "Solely Legislative" or "Solely Judicial" because of the complexity in the working of present day Government. Therefore, we should also comprehend the mixed working of these three wings of the Sovereign State. However, it can be done only if the finer distinction underlying the different wings is clearly noticed.

DISTINCTION UNDERLYING IN WORKING OF 3-WINGS OF SOVEREIGN STATE. (a)

General

(b) (c) (d) (I) (II)

Distinction between Legislative & Executive Functions Distinction between Legislative & Judicial Functions Distinction between Executives & Judicial Functions Lis -inter-partes Quasi

(III) Quasi-Judicial. (a) General It is difficult to draw a line of distinction between • Legislative & Executive functions, • Legislative & Judicial functions and • Executive & Judicial functions. Because the Executives perform not only the administrative functions but also the functions of Judiciary and Legislatures and all the three wings (Executives, Legislative and Judiciary) are telescoped into one, the Executives. Nevertheless, it is equally essential to know the difference or distinction because:•

Public should know whether a particular act is legislative or administrative (Executive) so that (depending upon that) further action can be based.

•

If act is legislative, legal rights may be of a particular nature but if not, legal rights may be altogether different For example, if duty is cast on Executive (administration) and if that is not performed a Writ of Mandamus can be obtained for the performance of that legal duty.

EXECUTIVES - I (The Government)

41

(b) Distinction between Legislative & Executives Functions The "Legislative" is the process of formulating a general rule of conduct, without reference to a particular case and usually operating in future. For example, the Advocates Act lays down that (a) only the Advocates who are Law Graduates and (b) enrolled with the Bar Council of the State will represent others in the Court of Law. It is the general rule of law laid down by the Legislature, without any reference to a particular person; whereas the Executives (administration) carry out this general rule of law into effect in each particular case. As such, if any grievance is against the enactment and if the grievance is found justiciable, the enactment will be declared ultra vires. But if a Law Graduate applies for enrollment and if the Executives decline to enroll him because he has not produced the copy of Law Degree Certificate, the refusal of the Executives in such case is the administrative action. The grounds for (i) challenging the refusal of enrollment of a particular case and (ii) challenging the entire enactment are entirely different. The attempt to distinguish Legislative act from the administrative action also shows the working of the doctrine of Separation of Powers but here the attempt is only to demonstrate the different functioning of the two, so as to identify whether the function is administrative function or the legislative function. Further, the Legislative act should be made public so that all may know the Law (ignorance of law is no excuse, therefore, the corollary is that all must know the Law). But there is no such corresponding requirement - if it is the Executive function. If a function is administrative and not legislative, certain legal rights may flow or may not flow. Thus, quite often, legal rights depend upon the distinction between the two.

Distinction (1)

Legislation is the process of formulating law usually for future, whereas the Executive is the process whereby existing law is enforced or general rules are made applicable in particular case. (2) The Parliament is supreme and there are a few controls inasmuch, either the validity of enactment can be challenged (i) in Court of Law but only if it is ultra-vires or (ii) by moving the public opinion and/or (iii) moving the legislature so that the enactment can be got repealed. But if the administrative act is wrong, the Higher Authority can be moved and if that also does not turn out to be effective, the Court can be moved. (3) For the wrong done by the Executives, individual member (official) or even the (Sovereign) State may be held responsible and damages may be recovered in fit cases. But there is no such method in the case of Legislative Wrong except democratic franchise. (c) Distinction between Legislative and Judicial Functions The distinction between the two is also illusive. As aforesaid, the Judiciary investigates, decides and enforces liabilities as they stand on present or past facts as per the LAW for the time being in force. The Legislature on the other hand, looks to the future and changes existing conditions by making anew rule (law) to be applied thereafter to all or some-part of that subject of its power. The legislative function thus relates to future, whereas the judicial function is specific, final and ordinarily relates to past.

ADMINISTRATIVE LAW

42

(d) Distinction between Executive (Administration) and Judicial Functions (I)

(II) (III)

Lis -inter-partes Quasi Quasi-Judicial.

(I) L1S- INTER- PARTES

As noted above, if One Party makes Claim and if that Claim is DENIED or OPPOSED by the other Party then the Dispute (US) between the two parties arises. The said dispute (Lis) has to be resolved or settled in constitutional manner or without resorting to violence. The said dispute (Lis) between the parties is called as Lis-inter-Partes (dispute between the parties). However, in cases where there is a dispute (lis) against the Government and the Government itself 'has to decide it, surely, it cannot be said that it is a Lis-inter-Partes (dispute between the parties) because there is no other party. Thus, when the authority or the Officer of the Government decides a dispute between the Government and a Citizen, it is a Quasi-Lis -not a Lis inter-partes.

(II) QUASI The word 'Quasi' means not exactly. When the term 'quasi' is prefixed to any legal terminology that terminology will have some of the attributes but not all of them - (See Province of Bombay vs. Khushaldas Advani, AIR 1950 SC 222, Bharat Bank Ltd vs. Employees of Bharat Bank Ltd., AIR 1950 SC 188, Jasvant Singh vs. Lakshmi Chand AIR 1963 SC 677). Province of Bombay vs. Khushaldas Advani, AIR 1950 SC 222 was the first leading case decided by the Supreme Court of India. Section 3 of the Bombay Land Requisition Ordinance, 1947, the Provincial Government was empowered to requisition any land for any public purpose. It was contended that the government while deciding whether requisition was for public purpose or not had to act judicially. The Bombay High Court upheld this contention of the Petitioner and hence the matter was carried to the highest court of the land. In this particular case, the Hon'ble Supreme Court held that for the decision, the government had to have the 'subjective satisfaction' and hence it cannot be said that the Government had to act jUdicially.

(III) QUASI JUDICIAL It is not in all cases that the authority is to decide a lis-inter-partes. There may be cases in which the administrative authority decides a Lis (dispute) not two or more contesting parties but between itself and party.

If in a dispute one of the two parties is the Executive (Government} and the dispute is to be decided by the Executive himself then the Executive has to perform the duties of Judiciary also. He has to act Quasi judicially. An authority is described as 'quasi-judicia\' when it has s'ame of the attributes or trappings of judicial functions but not all. Acts of an administrative authority may be purely administrative or may be admixture of legislative or judicial in nature. The duty admixture of administration and judiciary are quasi-judicial in nature. Necessarily, therefore, there are:

(1) Presentation (not necessarily oral) of by the parties to the dispute AND (2) If the dispute is a question of facts, the ascertainment of facts by means of evidence very often with the assistance of arguments on evidence.

EXECUTIVES - I (The Government)

43

But it does not necessarily involve the question of law and arguments on question of law before the quasi-judicial authority. And hence in no case, it involves the giving of decision on the question of law by the quasi-judicial authority. Nevertheless, there also, if the authority were empowered to take any decision, which will prejudicially affect any person, such a decision would be a Quasi-Judicial Decision provided the authority is required to act judiciously. Generally, the enactments do not expressly lay down that the authority will act judicially, nevertheless, the duty to act judicially has to be inferred. Such an inference can be drawn from Statute conferring powers by taking into consideration the following: (i) (ii) (iii)

(iv) (v) (vi) (vii) (viii)

The cumulative effect of the enactment, The nature of rights affected, The manner of the disposal provided, The objectives criterion to be adopted, The phraseology used, The nature of the power conferred, The nature of Duty imposed on the authority, AND The other indicia afforded by the enactment. (See, Dwarka Nath vs. ITO, AIR 1966 SC 81)

Thus where an Authority makes an Order, such as: (a) (b) (c) (d)

Granting legal aid, Dismissing an employee, Refusing to grant, revoke, suspend or cancel a License or Cancelling an examination result of a student for using an unfair means and rusticating a student, etc.

Such decisions are Quasi-Judicial in character. In all these cases, there are no two parties before the administrative authority and the other party to the dispute, if any, is the authority itself. Yet as the decision given by such an authority affects the rights of the person, there is a situation resembling a Lis. In such cases, the administrative authority has to decide the matter objectively after taking into account the objections of the party before it and if such authority has exceeded or abused its powers, a writ of Certioraris can be issued against it.

5.

JUDICIAL FUNCTIONS AND QUASI JUDICIAL FUNCTIONS DISTINCTION (A) Quasi-judicial authority has some of the trappings of a Court, not all of them; nevertheless, there is an obligation to act judicially. (B) A Lis-inter-partes is an essential characteristic of a judicial function but this may not be true of a quasi-judicial function. (C) A court is bound by precedents; a quasi-judicial authority is not.

44

ADMINISTRATIVE LAW

(D) While a Court is bound by rules or evidence and procedure, a quasi- judicial authority is not. (E) A Court cannot be a judge in its own case (except in Contempt cases). Whereas an administrative authority vested with quasi-judicial functions may be a party to the controversy but still it decides it. Whenever there is an express provision in the Statute itself, which requires the administrative authority to act judicially, the action of such authority would necessarily be a quasi-judicialfunction. But generally, statutes do not expressly provide for the duty to act judicially. Therefore, even in the absence of express provision in the statute, the duty to act judicially should be inferred. Such inference can be drawn from:cumulative effect of the nature of the rights affected. (ii) the manner of the disposal provided. (iii) the objective criterion to be adopted. (iv) the phraseology used. (v) the nature of the power conferred. (vii) the duty imposed on the authority, and (vii) the other indicia afforded by the statutes. In the historic case of Ridge vs. Baldwin the law laid down was that an authority might be required to observe the principles of natural justice even though it is not exercising judicial functions. The facts of the case can be in brief as under: (i)

The Police Authority of the Country Borough of Brighten had launched a prosecution against a chief Constable. The Trial Court, however, after recording the evidence acquitted him But while acquitting him it made certain observations on the fitness for the duties of the said Chief Constable. On the basis of the observation of the Trial Court, the Watch Committee of the Country Borough dismissed the said Chief Constable without giving any Notice of the charges against him and so no opportunity to be heard was given to him. The Court of Appeal held that the Watch Committee exercising their power under Section 194 (4) of the Act of 1882 were acting in an administrative or Executive capacity, not in a judicial or quasi-judicial capacity with the result, the rules of justice did not apply to their proceedings. The case was taken to the House of Lords by way of further appeal which allowed the appeal by a majority of four to one. Their Lordships pointed out that cases of dismissal fell in three categories (1) Dismissal of Servant by his master, (2) Dismissal of an Officer who held his 'Office during the pleasure (of the King) and (3) Dismissal from an Office because there is something against him and so the dismissal is warranted. The first two categories fell within the purview of the ordinary law of contract. If a servant is dismissed illegally, a suit for breach of contract will lie. In the second category; no remedy whatsoever, is available to the Servant. In the third category; a servant cannot be dismissed without first telling him what is alleged against him and hearing his defence or explanation. What was laid down in this case has been followed in India in number of leading cases.

EXECUTIVES - I (The Government)

45

6. QUASI-JUDICIAL-ILLUSTRATIONS (A) Disciplinary proceedings against students:• • • •

Bhagwan us. Ramchand, AIR 1965 SC 1767. Suresh Koshy us. Uniuersity of Kerala, AIR 1969 SC 1110. Hira Nath Mishra us. Principal, Rajendra Medical College, AIR 1973 SC 1260. Jawaharlal Nehru Uniuersity us. Minister of Health, AIR 1980 SC 1666 B.

(B) Canceling the examination result • •

Board of High School us. Ghanshyam, AIR 1962 SC 415. Board of High School us. Kum Chitra, AIR 1970 SC 1039.

(C) Dismissal of an employee on the ground of misconduct • • • •

Ridge us. Baldwin, (1963) 2 Ail E R 66. Calcutta Dock Labour Board us. Jaffer Imam, AIR 1966 SC 282. State of Orissa us. Binapani, AIR 1967 SC 1269. State of Punjab us. Iqbal Singh, AIR 1976 SC 667.

(D) Forfeiture of pension or gratuity • •

State of Punjab us Iqbal Singh AIR 1976 SC 667. Laxman Popatbhai us. State, (1976) GLR 370.

(E) Industrial Tribunal deciding an industrial dispute •

Bharat Bank Ltd. us. Employees of Bharat Bank Ltd. AIR 1950 SC188.

(F) Determination of statutory disputes •

C. S. T. us. Super Cotton Works, AIR 1979 SC 114.

(6) Power to continue Detention, Seizer of goods beyond particular period •

Lakhanpal us. Union of India, AIR 1967 SC 1507.

•

Asst. Collector of Custom us. Bibhuti Bhusan, AIR 1989 SC 1884.

(H) Conflscation of goods under the Sea Customs Act, 1878 •

(I)

East India Commercial Co. us. Collector of Customs, AIR 1962 SC 1893.

Refusal to grant 'No Objection' Certificates under the Bombay Cinemas (Regulation) Act, 1953 •

State of Gujarat us. Krishna Cinema, AIR 1971 SC 1650.

(J) Cancellation, suspension, revocation, refusal, renewing of the License or the permit • • •

Raman & Raman us. State of Madras, AIR 1956 SC 463. Fedoo Ltd. us. Bilgrami, AIR 1960 SC 415. Mahabir Prasad us. State of Up, AIR 1970 SC 1302.

46

ADMINISTRATIVE LAW

• • • •

Maneka Gandhi us. Union of India, AIR 1978 SC 597. Natraja Mudliar us. State Transport Authority, AIR 1979 SC 114. North Bihar Agency us. State of Bihar, AIR 1981 SC 1758. Swadeshi Cotton Mills us. Union of India, AIR 1981 SC 818.

(K) Determination of Citizenship, •

Ayubkhan us. Commr AIR 1965 SC 1623.

(L) Election Commissioner deciding rival contentions • Sangram Singh us. Election Tribunal, AIR 1955 SC 425. (M) An Order granting legal aid

•

R. us. Manchester Legal Air Committee, All.

E.~ 480.

7. ADMINISTRATIVE FUNCTIONS - ILLUSTRATIONS (A) An Order of Acquisition or Requisition of Property •

Prouince of Bombay us. Khusaldas Aduani, AIR 1950 SC 222.

(B) An Order of setting up a Commission of Inquiry •

Ramkrishna Dalmiya us. Tendolkar, AIR 1958 SC 538.

(C) An Order of making or Reference under Industrial Disputes Act, 1947

• • • • • •

State of Madras us. c.P. Sarthy AIR 1953 SC 53. Shambunath us. Bank of Baroda, AIR 1978 SC 1088. Auon Seruices us. Industrial Tribunal, AIR 1979 SC 170. MP Irrigation Karmchari Sangh us. State of MP, AIR 1985 SC 860. Ram Auatar us. State of Haryana, AIR 1985 SC 915. Telco us. State of Bihar, AIR 1989 SC 1565.

(D) An Order of Assessment under the Sales Tax Act •

State of Orissa us. Chakobhai, AIR 1961 SC 284.

(E) An Order of Preventive Detention • A.K. Gopalan us. Sate of Madras, AIR 1950 SC 27. •

Ram Manohar Lohia us. State of Bihar, AIR 1966 SC 740.

(F) An Order of Externment under the Bombay Police Act •

Hari Khemu us. Dy. Commr. of Police, AIR 1954 SC 224.

(G) Entering name in Police Register

•

Malak Singh us. State of P&H, AIR 1981 SC 760.

(H) Power to issue licenses or Permits • •

Nabhi Rajah us. State of Mysore, AIR 1952 SC 339. Dwarka Prasad us. State of u.P. AIR 1 954 SC 234 1.

EXECUTIVES - I (The Government)

47

(I) An Order granting or refusing to grant permission of Sale in favour of NonAgriculturist under Tenancy Act •

Gouindbhai Patel us. Gulam Abbas, AI R 1977 SC 1019.

(J) An Order of termination of mining license.

• •

Anakapalte Co-op Society us. Union of India, AIR 1973 SC 734. State of Haruana us. Ram Kishan, AIR 1988 SC 130.

8. LEGISLATIVE FUNCTIONS-ILLUSTRATION (A) Fixation of Prices • • • • • • •

Union of India us. Cynamide India Ltd.- AIR 1987 SC 1802. Shree Minakshi Mills us. Union of India, AIR 1974 SC 366. Saraswati Industrial Syndicate us. Union of India, AIR 1975 SC 460. Parag ice & Oils Mills us. Union of India, AIR 1978 SC 1296. Laxmi Khandsari us. State of UP, AIR 1981 SC 873. Welcome Hotel us. State of AP, AIR 1983 SC 1015. Shri Sitaram Sugar Co. Ltd. us. Union of India, (1990) 3 SC 223.

(8) Declaration of a Market Place as Market Yard •

Ramchandra us. State of Maharashtra, AIR 1974 SC 259.

(C) Establishing of Municipal Corporation

•

Sundajas Kanylal Bhateja us. Collector, Thane, AIR 1990 SC 261.

(D) Imposition of Tax • •

Tharoo Mal us. Premchand AIR 1978 SC 306. Triuedi us. State of Gujarat AIR 1986 SC 1323.

(E) Extension of Limits of Town Area Committees • • •

9.

Tulsipur Sugar Co. Ltd. us. Notified Area Committee, AIR 1980 SC 882. Sundajas Kanyalal Bhathija us. Collector, Thane, AIR 1990 SC 261. Baldeu Singh us. State of HP, AIR 1987 SC 1287.

ADMINISTRATIVE AND QUASI-JUDICIAL FUNCTIONSDISTINCTION

The acts of government may be purely administrative or may be legislative or judicial in nature. Decision, which is purely administrative, stands wholly on different footing from judicial and Quasijudicial decisions. The dividing line between an administrative power and a quasi judicial power is quite thin and it is difficult to state as to where does the administrative act end and where does the judicial act begin. Further, what was considered as administrative power some years back is now being considered as quasi-judicial powers. The real test which distinguishes a Quasi-judicial act from an administrative act is the duty to act judicially. Therefore, in considering whether a particular statutory authority is a quasi-judicial body or merely an administrative body; it has to be ascertained whether statutory authority has the duty to act judicially.

ADMINISTRATIVE LAW

48

10. ADMINISTRATIVE AUTHORITIES IN INDIA In India we have:-

!

INDIA t

1 States

Union (of India)

1

1

Governors

President

1

1

Cabinet Ministers Headed by Prime Minister

Cabinet Ministers Headed by Chief Ministers

1

1

Departments of State Governments

Departments of Central India

1

1

Statutory Corporations of Central Government

Statutory Corporations of State Government

The Sovereign 'Body' vests in the Crown or in the Figure Head (the President as far as India is concerned). The Crown or the Figure Head (the President in India) is assisted by and advised by the Cabinet Ministers. The system of appointment of Cabinet Ministers would differ from State (Country) to State (Country). 'The Chief Advisor' or the 'Secretary' assists each Minister. Large number of permanent officials called as 'Civil Servants' assist the Secretary. These Civil Servants and the Secretaries of the Ministers are called as the 'EXECUTIVES'. The Executives then ultimately carryon the business of the Government except its Legislative and Judicial functions. Nevertheless, in the modern era, the Executives also perform these functions of Judiciary as well as the Legislative because there are no watertight compartments amongst these three different wings of the Sovereign State.

11. THE SECRETARIAL LIMB OF EXECUTIVES The sovereignty vests in the Crown or the 'Figure Head' (like the President as it is in India) assisted and advised by the Cabinet Members (Ministers). The system of appointment of Cabinet Ministers would differ from State (Country) to State (Country). The Secretariat forms important link and limb of the Executives. Both work on fundamental conventions of the Constitution of the country. The Ministers take decision in their respective department. There is what is known as the 'Doctrine of Ministerial Responsibility'. Under this doctrine, the respective ministers take responsibility for the mistakes made by their secretariat and the concerned Minister will answer questions in the House of Parliament. In order that the decisions of politicians at the Cabinet level may be implemented, a staff of permanent officers is essential. These Officers are known as the "civil servants' in contradistinction to the armed force staff. The Chief Adviser of each minister is his permanent secretary, the Head

EXECUTIVES - I (The Government)

49

of the Civil Services in his department who is not necessarily any specialist but just a general adviser of the minister. The function of the Civil Servants is to advise, warn, draft memorandums, draft speeches, draw attention to difficulties, and generally to see that the process of government is carried out in conformity with the policies laid down at the Cabinet level. In addition to the Civil Servants, in general, there may be professional and technical civil servants also. The recruitment to the Civil Servants is by competitive exams although some professionals may be appointed by interview only. A body known as the 'Civil Service Commissions' (see chapter 3 of this book) conducts the exam and interviews. The service conditions of these civil servants are peculiar in their nature inasmuch as civil servants are in contractual relationship with the government and yet they may be dismissed at the pleasure of the Crown. Nevertheless, so far as India is concerned, their services are fully protected under Article 311 of the Constitution of India. The fundamental protection given by the Constitution of India are available to these civil servants and as such the High Courts under Article 226 of the Constitution of India and the Supreme Court of India under Article 32 of the Constitution of India have the jurisdiction to extend such protection to them. The civil servants retain have the 'civil rights' of the citizens and they are not disfranchised. However, they may not playa full part in party politics under the rule embodied in Civil Service Regulations. A Civil Servant, normally, is not personally liable in a contract that he has entered into on behalf of the Government. Similarly, he cannot be sued for the breach of warranty or the authority. A full discussion on this topic is given in the separate Chapter. CASE LAWS It cannot be assumed that the Legislative functions are performed by Legislature. Executive functions by Executives or the judicial functions by judiciary only.

• • • •

Jayantilal Amritlal us. F. N. Rana, AIR 1964 SC 648. Bandhua Mukti Morcha us. Union of India, AIR 1964 SC 648. State of HP., us. Umedram Sharma, AIR 1986 SC 802. Fida Ali us. State, AIR 1961 Guj. lSI.

Sometimes, administrative adjudication creates some future rights, yet it cannot be said to be a legislative function. But if a function is Legislative or Quasi Legislative, there is no right of hearing or notice and it falls outside the scope of Writ jurisdiction. Although it is difficult to draw a line of distinction between Legislative and Executive function, nevertheless, it is necessary to draw a line of distinction because different legal rights and consequences ensues.

• • •

Union of India us. Cynamide India Ltd, AIR 1987 SC 1802. Sundajas Kanyalal Bhathija us. Collector, Thane, AIR 1990 SC 26I. Saxena us. State of Haryana, AIR 1987 SC 1483.

The Executive function comprises both, the determination of Policy and carrying it out into effect.

• • •

State of M. P. us. Bharat Singh, AIR 1967 SC 1170. State of M P. us. Niuedita, AIR 1981 SC 2045. Sarkari Sasta Anaj Vikreta Sangh us. State of MP, AIR 1981 SC 2030.

50

ADMINISTRATIVE LAW

• Ram Jawaya vs. State of Punjab, AIR 1955 SC 549. • State of AP. vs. Narendranth, AIR 1971 SC 2560. • Maganbhai vs. Union of India, AIR 1969 SC 783. It may not be possible to define 'Executive Functions' in precise terms but ordinarily; it connotes the residue of governmental functions that remains after legislative and judicial functions are taken away. • Ram Jawaya vs. State of Punjab, AIR 1955 SC 549. • Jayantlal vs. F. N. Rana, AIR 1964 SC 648 (655). • Madhav Rao Scindia vs. Union of India AIR 1971 SC 530 (565). • Central Inland Water Transport Corpn. vs. Barjo Nath Ganguly, AIR 1986 SC 1571. The High Court would not issue Writ of Mandamus when there is merely a breach of' administrative instructions. • • • •

Raghupathy vs. State of AP., AIR 1988 SC 1681. Jt. Chief Controller of Imports & Exports vs. Amirchand, AIR 1966 SC 478. Andhra Industrial Works vs. Chief Controller, AIR 1974 SC 1539. Khandoz vs. Reserve Bank of India,-AIR 1982 SC 917.

The Executive Cadres do not confer any enforceable legal right on any persons and do not impose legal obligations on the subordinate Authorities for whose guidance they are issued. Such Executive Orders, at the highest, if breached may expose the subordinate authorities to disciplinary action or other appropriate action. But the breach of such Orders does not confer any jurisdiction on Court. Abdulla vs. State Transport, AIR 1959 SC 896.

The Government can fill in the gaps in the Statutory Rules but it cannot override them. The Government instructions filling in the gaps in the Statutory Rules, however, cannot be inconsistent with the Statutory Rules nor can the Government amend the Statutory Rules. • • • • • • • • • • • • •

Smt. Ram Sharma vs. State of Rajasthan, AIR 1967 SC 1910. Lalit Mohan vs. Union of India, AIR 1972 SC 1966. State of Haryana vs. Shamsher Jang, AIR 1972 SC 1546. Amarjit Singh vs. State of Punjab, AIR 1975 SC 984. Rajendra Naraian Singh vs. State of Bihar; AIR 1980 SC 1246. Accountant General vs. Doraiswamy, AIR 1981 SC 783. State of Maharashtra vs. Chandrakant, AIR 1981 SC 1990. Khandoz vs. RBI AIR 1982 SC 917. Union of India vs. Arun Kumar Roy, AIR 1986 SC 737. State of M.P. vs. Municipal Corporation of Indore, AIR 1987 SC 1983. Brij Mohan vs. State of Punjab, AIR 1987 SC 948. Agarwal us. State of UP., AIR 1987 SC 1676. State of Gujarat vs. Bhargav, AIR 1987 SC 2135.

EXECUTIVES - I (The Government)

51

Abdul Majid us. Mysore State Electricity Board, AIR 1987 SC 1162. Union of India us. R Narsinhan, AIR 1988 SC 1733. Union of India us. Somasundaram, (1989) 1 , SC 175. Palaru us. Union of India, (1989) 2 SC 541. Bindeshwari us. State of Bihar, (1989) 4 SC 465. Senior Supdt. of Post Offices us. Izhar Hussain, AIR 1989 SC 2262.

• • • • • •

Once the Government takes a decision, it must follow it faithfully and cannot depart from the same. • Balasubramaniam us. T.N Housing Board, AIR 1988 SC 6. In absence of statutory rules, the Administrative instruction prevails. • State of Gujarat us. Bhargau, AIR 1987 SC 2135. It is well settled rule of administrative law that an Executive authority must be rigorously held to the standards by which it professes its actions to be judged and it must scrupulously observe those standards on pain of invalidation of an act in violation of them. • R.D.Shetty us. International Airport Authority, AIR 1979 SC 1628. • Minhas us. Indian Statistical Institute, AIR 1984 SC 363. • Sukhdeu Singh us. Bhagaram, AIR 1975 SC 1331. The University Chancellor while exercising the powers under Section 31 (8) of the U.P' State Universities Act, 1973 does not sit in appeal in the matter of appointment. In case of disagreement between the Selection Committee and Executive Council, the Chancellor has to take a decision as to who should be appointed in the light of recommendation and opinion, if given by the said two authorities. Such a decision appears to be an administrative decision. • Neelima Misra us. Hariner Kaur, AIR 1990 SC 1402. The non-observance of Mysore PWD Code did not give any right to Petition because conditions laid down under it were merely the administrative instructions.

• Fernandez us. State of Mysore, AIR 1967 SC 1753. The norms under the Grant-in-aid Code are administrative instructions. Therefore a teacher, if aggrieved by the Order of management under the Code does not get any right on the ground of breach or non-compliance of any of the rules of the Code. • Kumari R. us. St. Aloysius Higher Education School, AIR 1971 SC 1920. The Government framed guidelines for formation of Head Quarters. The same were flouted and hence challenged. Guidelines were nothing more than the administrative instruction, not having any statutory force, which does not give rise to any right which can be enforced in any Court of Law. Nevertheless, one can get the relief under Article 226 of the Constitution of India where non-observance of non-statutory rule or practice would result in arbitrariness or absence of fair play or discrimination. It will be all the more so 'when the non-statutory rule making authority is the 'State' under Article 12 of the Constitution of India. •

Raghupathy us. State of AP., AIR 1988 SC 1681.

52

ADMINISTRATIVE LAW

The Kerala Water Authority passed a Resolution and adopted for its employees, rules framed by Government under Article 309 of the Constitution of India. The apex Court held that so far as the government employees are concerned, the rules framed by government will have the statutory force. But when any other Authority adopts them by resolution for regulating services of its staff, the rules do not continue to remain statutory in their application to the staff of that Authority. They are like any other administrative rules, which do not have statutory force.

• Jacob us. Kerala Water Authority, AIR 1990 SC 228. The Government fixed inter-se seniority of certain employees under a Memorandum. Although the Memorandum was only the administrative instruction, nevertheless, the Government cannot depart from it, its sweet will without rational justification as otherwise it will be violative of Article 14 and 16 of the Constitution of India. • Amarjit Singh us. State of Punjab, AIR 1975 SC 984. The Textile Commissioner declared an 'Export Promotion Scheme' giving certain incentives for export of woollen goods. An Exporter relying upon the Scheme exported sizeable quantity of goods. But he was not granted Import Certificate and therefore, he challenged the said nonissuance of Import Certificate. The apex Court held that even if the Scheme is administrative in character, the Exporter can compel the Textile Commissioner to issue the Import Certificate and thereby enforce the Scheme. • Union of India us. Anglo Afghan Agencies, AIR 1968 SC 718. The Government made a reference of pay revision of all its employees to the Pay Commission; it cannot implement in respect of some employees, as it would amount to breach of Articles 14 and 16 of the Constitution of India. • Purshottamlal us. Union of India, AIR 1973 SC 1088. When statutory rule provided that an employee shall retire at the age of 55 years, the same cannot be modified (even to the advantage of employee) to the extent that the employee shall retire on the last day of the month in which retires at the age of 58 years. The employee has to retire on reaching the age of 58 years and he cannot be kept in service till the last of the month. • C.L.Varma us. State of MP., AIR 1990 SC 463. A dividing line between an administrative power and 'quasi-judicial power is quite thin and is being gradually obliterated. What was considered to be an administrative power is now not considered so. • AK. Kraipak us. Union of India, AIR 1970 SC 150. • Menaka Gandhi us. Union of India, AIR 1978 SC 597. Executives discharging judicial or Quasi-judicial powers must follow the principles of natural justice. Writ of Certiorari or Prohibition is maintainable.

• Express News Paper (P) Ltd. us. Union of India, AIR 1958 SC 578. In Winding up proceedings, the workers are entitled to be heard. • National Textile Workers Union us. Ramkrishnan, AIR 1983 SC 75. Lis-inter-partes is an essential characteristic of judicial function but not that of the Quasi-Judicial. •

Board of High School us. Ghanshyam, AIR 1962 SC 1110.

EXECUTIVES· I (The Government)

53

Duty to act judicially would arise from the very nature of the function intended to be performed. If there is a power to decide and determine to the prejudice of a person, duty to act judicially is implied • $tate of Orissa us. Dr. Binapani, AIR 1967 SC 1269. Quasi-Judicial authority has some of the trappings of Court but not all of them. • Bharat Bank Ltd. us. Employees of Bharat Bank Ltd., AIR 1950 SC 188. A Court cannot be a judge of its own cause. • • •

•

•

•

• •

Board of High School us. Ghanshyam, AIR 1962 SC 1110. Prouince of Bombay us. Khusaldas Aduani, AIR 1950 SC 232. Permitting the executive to review or revise the decisions of a quasi-judicial body would amount to interference with the exercise of judicial functions by such body Union of India us K.M. Shantarappa (2001) 1 SCC 582. A statutory authority is required to act judicially by holding an inquiry before taking a decision. As such, even in absence of any lis (dispute) or contest between the contending parties such authority acts quasi-judicially and its decision is quasi-judicial Indian National Congress (l) us. Institute of Social Welfare, AIR 2002 SCC 2158. The mere fact that the competent authority was appointed to carry out the provisions of the Act will not render the act (of appointment) as administrative act. The power of authority to summon witnesses, examine them on oath shows that the authority has the quasi-judicial powers and hence the decision to drop the proceedings would be quasi-judicial. It is not correct to say that the Government cannot prefer appeal against order of competent authority on the ground that it is an arm or wing of the Government - State of Maharashtra us Marwanjee F. Desai, AIR 2002 SC 456. The obligation to act fairly was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to be observed - Haryana Financial Corpn. Vs Jagdambe Oil Mills, AIR 2002 SC 834. Commission cannot claim absolute privilege from defamation which belongs to judicial authority - Alok us Sharma AIR 1958 SC 453. Transparency does not mean the conducting of the government business while sitting on the cross road in public. Transparency would require that the manner in which decision is taken is made known. Persons who are to decide are not arbitrarily selected to appointed - BALCO Employees Union us Union of India, AIR 2002 SC 350.

DOD

CHAPTER-5

LEGISLATURE - I (A Wing of 'Sovereign State' with 'Ultimate Power' to Legislate)

SYNOPSIS 1. The Introduction 2. Extent and Scope 3. Constitutional Provisions 4. Legislative Process 5. Legislative Relation 6. Municipalities and Panchayats (a) Brief History (b) Constitutional Provisions 7. Control over Legislation

1. THE INTRODUCTION The doctrines of (i) 'Rule of Law' and (ii) 'Separation of Power' are fully discussed in the earlier Chapters and, therefore, hopefully, it should be fairly clear that (a) the 'Rule of Law" must always prevail and (b) the doctrine of "Separation of Power" must be given its due recognition. What is Government or the "Executives" is also fully discussed and explained in the earlier Chapter and, therefore, now what remains is the "Legislature", which is one of the wings of the doctrine of "Separation of Power". The 'ultimate power' of making Laws for the country is vested in Legislature and the other wings of the Government can legislate only to the extent power of making law is delegated either under written Constitution of the Country or by the Legislature itself. Therefore, it is in this percept that it is necessary and important to know about the Legislature.

2. EXTENT AND SCOPE As is aforesaid, in any "Sovereign State" there must be '''ultimate power" capable of altering and declaring the Law. So far as India is concerned, such an 'ultimate power" of making Law is vested with (54)

LEGISLATURE -I (A Wing of 'Sovereign State' with 'Ultimate Power' to Legislate)

55

the Parliament. It is well said that the Parliament is omnipotent to make Laws for the whole country. Although generally speaking, there is no restriction on Law making powers, however, it may be politically impracticable to obtain necessary mandate on the floor of Parliament and hence it is not possible to make any and every law. But that is because the Sovereignty has to yield to political reality. Further it is necessary to notice that by legislation, new laws, duties, privileges or immunities, etc., not dependent upon any previous rights, can be created for the first time.

3. CONSTITUTIONAL PROVISIONS Article 1 (Part I) of the Constitution of India lays down that India, Bharat, is the union of states and gives the territories of States in the First Schedule. Indeed, it is essential to notice that the term "State" means the Union territories also. Article 1 (2) and Article 79 (Part V, Chapter II) then lay down that there shall be a Parliament, meaning thereby that 'ultimate power' to make laws for the country, India or Bharat, is vested in the Parliament. Indeed it is made expressly clear in Article 245 that the Parliament will make laws for the whole of country and of the territories of India. And it (the Constitution) (a) under Article 168 and (b) under Article 239-A provides for the Legislature for States and Union Territories to make laws for their respective territory. Whereas, provisions in Chapter II of Part V and Chapter III of Part VI of Constitution deal with procedural matters in respect of Parliament and State Legislature respectively. It may also be noted that Article 168 provides for two "Houses" only for specified States and only one "House" for the rest.

4. LEGISLATIVE PROCESS As noted above, so far as India is concerned, we have (1) the Parliament called as "LokSabha" and (2) the Assembly Vidhan-Sabha for each State. The Parliament enacts the Law for the entire country, the Assembly enacts the Law for its own State. The Law passed by Parliament is the Central Legislation but if it is passed by the Vidhan-Sabha of any State, it is called as the State Legislation. The President heads the Parliament the Governor heads the Assembly in the State. Indeed, the process of legislation is same, whether it is by Parliament or by the Assembly of the State. The Parliament (Sansad-Sahha) consists of two houses, like the Upper House and the Lower House, called as (A) Lok-Sabha and (B) Rajya-Sabha. Similarly, the State Legislature consists of either two houses or one house as noted in Article 168. In the States where there are two houses, the one is called as Vidhan-Sabha and the other is called as the Vidhan Parishad. People on the basis of franchise directly elect the members of Lok-Sabha (Parliament MembersMPs and Assemblies-MLAs) whereas the members of Rajya-Sabha (also called as MP) or Vidhan Parishad (called as MLCs) are nominated from amongst the different classes of the society: Thus, in India, we have the system of legislation as under:LEGISLATION ~

Parliament -Sansad Sabha ~

enacts the Law for the entire country. ~

It is headed by President.

+

Parliament consists of;

+

State Assembly - Vidhan Sabha ~

It enacts the Law for its State. ~

It is headed by Governor. ~

State Assembly consists of;

ADMINISTRATIVE LAW

56

1. Lok-Sabha (Lower House) Members are directly elected from people.

1. Vidhan Sabha (Legislative Assembly) Members are directly elected from people.

2. Rajya-Sabha (Upper House) It consists of nominated Members.

2. Vidhan Parishad (Legislative Council) It consists of nominated Members.

3. Generally there are two types of Bills:(A) Public Bills or Official Bills AND (B) Private Bill

The Public Bills are so called or so classified because of their subject matter and because, these Bills are sponsored by the Government of the day. Some private interests, on the other hand, move the Private Bills. But once a private Bill becomes the Act, it is as much a Law as an Act, which started its Life as a public Bill. All Bills, Public or Private, are for the first time laid before the Lok-Sabha or the Vidhan-Sabha, as the case may be. Once the Bill is passed, it is transmitted to the Rajya-Sabha or to the Vidhan Parishad, as the case may be, for its consideration. After the Bill is transmitted, it is deliberated and, if so considered necessary, it is finally passed. The Bill finally passed by both the houses, however, does not acquire the shape of enactment because the President or the Governor, as the case may be, has to accord his 'Assent". After the ''Assent'' of the President or the Governor, as the case may be, the Bill acquires the status of enactment or the Statute. While this is unwritten Law, the Written Law in the Constitution of India only classifies the Bills into the Money or Financial Bill and the rest. Whereas Chapter II of Part V of the Constitution of India, inter-alia, deals with the Parliament and passing of the Bills in it, Chapter III in Part VI of the Constitution of India inter-alia, deals with the State Legislature and passing of the Bills in it.

5. LEGISLATIVE RELATION The Constitution of India has taken care that the Parliament and the State legislatures do not encroach upon the functions and powers of each other. Provisions in Part XI of the Constitution very meticulously divide the powers and functions of each one. The Constitution also envisages an eventuality that there may be conflicting legislations by the two and lays down the solution for resolving the conflict. While it is not denying that the States have the complete freedom to rule their own State, it is not that the Union has to simply watch the misuse and abuse of freedom given to States, inasmuch as the Constitution lays down the provisions for that purpose also. Thus, there is perfect balance of legislative powers under the Constitution.

6. MUNICIPALITIES & PANCHAYATS (a) Brief History In England, centuries ago, privileges were secured from the King for (1) exemption of payment of internal taxes, (2) making appointment of their own justices and so on. With the advent of time, privilege seekers grew into the local authorities. The Urban and Rural District Councils and the Municipal Corporations came to be constituted under the Local Government Act and the Municipal Corporations Act respectively. Indeed the Local Governments in England grew for the democratization

LEGISLATURE - I (A Wing of 'Sovereign State' with 'Ultimate Power' to Legislate)

57

for the governing of the local affairs. As a matter of fact, the Municipalities are the forms of the 'Self Government" for any given locality. The English Local Government; until nineteenth century, was exclusively for maintaining the public order. The Local Authorities were identified according to the population in any given local area, such as Municipal Councils (for smaller urban areas), Municipal Boroughs and Municipal Corporations (for larger urban areas). Each of the Local Authority has a governing body entrusted with local government functions to be exercised in its area.

(b) Constitutional Provisions Turning to India, needless to state that the local authorities function only under the constitutional provisions and under constitutional restraints and constrains. Part IX of the Constitution of India deals with this aspect. At the lowest level, it (Constitution) seeks to set up the Panchayats; called as the Gram Sabha. Article 243 B lays down that there shall be constituted in every State, the Panchayats at the village. Article 243 C then, inter-alia, lays down that the ratio between the population and the number of seats to be filled by election shall be the same throughout the State. Section 343 K lays down the provisions about the Panchayats' Elections. Similarly, the Constitution lays down the provisions with regard to constitution of Municipalities. The Gram Sabhas/Panchayats and the Municipalities are the forms of "Self-Government" at the lowest level at the village/city. The formation and functioning are, more or less, similar to the formation and functioning of the Parliament or the State Legislature inasmuch as to some extent the Local Authorities can legislate at their level for 'Self-Government'. But once again, at the cost of repetition, it may be stated that the Constitution has laid down the restraints and constrains so that there is no conflict with regard to legislative powers of Parliament, the State Legislatures and the humble local authorities.

7. CONTROL OVER LEGISLATION The Parliament is supreme and it can legislate, as it likes, nevertheless, there are a few factors, as below, which controls Parliamentary Legislation.

(i)

Policies and Programs: Each Political Party has its manifest program in accordance with their political philosophy. As such, only a certain amount of discretion on controversial matters is taken up. So far as the party in power is concerned, in order to cut short the discussion on the Bill, it introduces the required Bill, adopts it by resolution and carry it by majority. Quite often, details of administrative nature are not even discussed. Nevertheless, the members of the House, collectively, do have the control over the passing of the legislation (ii) Consultations: It has become modern practice to discuss the Bill in private with interested parties and as far as possible controversies are resolved. (iii) Judicial Control: The Courts indeed have no judicial control, however, if statute is passed which offends the Constitution, the Courts can quash and set aside fee vdiole enactment or that portion of the enactment which is ultra vires. Proportionality means to detrmine the question whether the legislature has made appropriate choice of measures in regulating the exercies of fundamental right in order to achieve the object of legislation. Ever since 1950, the proportionality has been applied in India while dealing with validity of legislation or infringement of the fundamental rights.

58

ADMINISTRATIVE LAW

Cases where legislation is made and the restrictions imposed on fundamental rights are reasonable yet the statue confers excessive powers on the administrative authority to exercise discretion, question frequently arises whether a wrong choice is made for imposing restriction or whether the fundamental rights are properly balanced (etc.) In such cases, the administrative action in our country has to be on the premises of proportionality. The administrative action in India affecting fundamental freedoms has always been tested on the anvil of Proportionality although it has not been expressly stated that the principle is applied is the Proportionality Principle. In India, Courts deal with the merits of balancing act and in essence, applying proportionality. But whether the administrative action is challenged as arbitrary, the question will be whether the administrative order is rational or reasonable and the test then is the Wednesbury Test. The courts would then be confined only to a secondary role and will only have to see whether the administrator has done well in his primary role, whether he has acted illegally or has omitted relevant factors into consideration or has omitted relevant factors from consideration or has taken irrelevant factors into consideration. Whether his view is one which no reasonable person could have taken. If his action does not satisfy these rules, it is to be treated as arbitrary.

000

CHAPTER-6

LEGISLATURE - II (Delegated Legislation) SYNOPSIS

1. 2. 3. 4.

Introduction The Definition. Essential Legislative Functions Limitation on Delegated Legislation (a) Generally (b) The Other Limitations 5. Advantages and Reasons for the Growth of Delegated Legislation. 6. Disadvantages of Delegated Legislation 7. Criticism of Delegated Legislation 8. Permissible and Impermissible Delegations (a) Functions, which can be delegated (b) Functions, which cannot be delegated 9. Delegated Legislation in India (i) Pre-Constitutional Period (ii) Post-Constitutional Period (iii) Nature of Delegated Legislation in India (iv) Principle Emerging from Apex Court Rulings. 10. Control or Challenge on Delegated Legislation (I) Introduction (II) Legislative Control (A) Scrutiny (B) Laying on the Table (C) Consultation (59)

60

ADMINISTRATIVE LAW

(i) Generally (ii) Ordinary Consultation (iii) Extraordinary Consultation (iv) Effect of Non-consultation (D) Publication (a) Need of Publication (b) Effect of Non-publication (c) Defect in Publication III. Judicial Control (A) General (a) What is ultra-vires (b) What is Substantive ultra-vires (c) What is Procedural ultra-vires (B) Grounds of Challenge (i) Parent Act is Unconstitutional. (ii) Delegation is Unconstitutional (iii) Delegation is Inconsistent with the Parent Act (iv) Unreasonableness (v) Malafide or Bad Faith (vi) Sub-Delegation (vii) Exclusion of Judicial Review (viii) Retrospective Effect (ix) De tournment de pouvoir (C) Other Grounds of Challenge (D) When Judicial Challenge is not Available (a) Distinction between Legislative and Non-Legislative Acts. (b) Distinction between Non-Legislative Acts and Delegated Legislation (c) Whether Judicial Review can be Excluded? (i) Herschel Doctrine (ii) Herschel Doctrine in India 11. Types of Delegation (A) Nature of Delegation (B) Conditionl Legistation (C) Conditional Legislation and Delegated Legislation - Distinction (D) Distinction is Artificial- (Subordinate is a Broader Classification) 12. Classification of Delegated Legislation (A) General (B) Classification According to Nomenclature (C) Bye-laws

LEGISLATURE - II (Delegated Legislation)

61

General (ii) Peculiarities (D) Sub-delegation (i) Meaning (ii) Object (iii) Criticism (iv) Delegatus potestas non potest delegare (v) Limitations to Sub-delegation 13. Summary in Tabular form of Delegated Legislation (i)

1. INTRODUCTION As is recorded earlier, it is understood that we may be compelled to act in accordance with certain principles because God desires us to do so and if we fail to do so, God may punish us. God makes the King and King makes the Law. In England, until 16th and 17th Centuries, the power to make Law was freely exercised by the King in his Privy Council by virtue of the Royal Prerogative. But after the revolution of 1688, the Parliament assumed powers to legislate into its own hands. It was almost an Article of Political Faith to deny the Executives the discretionary powers and as such, the Legislation, as was necessary, was kept firmly within the powers of Parliament. However, during the 19th Century, when the aftermath of Industrial Revolution brought to an end the period of Laissez jaire, the Parliament was obliged to surrender its legislative power (to the extent of making rules) to the Executives. Two World Wars gave further impetus to the general trend to give wider powers to Executives. That is how the delegated legislation came to be born. Thus, when legislative powers are delegated (or given over to) some subordinate authority and pursuant to those powers, if any legislation is made, the said legislation is rightly given the brand name of Delegated Legislation or Subordinate Legislation. The Delegated Legislation is also referred to as the "Child Legislation" in contradistinction to 'parent law', which is the main enactment under which the rules, regulations are drawn up. In order to avoid confusion between Subordinate Legislation and Sub-delegation, it is necessary to bear in mind the distinction very clearly and distinctly. In subordinate legislation, the Legislatures delegate their legislative powers to Executives but in Sub-delegation, the Executive or the Delegatee further delegates its powers to its subordinate authority.

2. THE DEFINITION It is very difficult to give precise definition; nevertheless, Salmond defines the Delegated Legislation as "that (legislation) which proceeds from any authority other than the sovereign power and therefore dependent for its continued existence and validity on some superior or supreme authority". Thus, it should be clear that when the function of legislation (power of law making) is entrusted by Legislatures (the Law maker) itself, the legislation (Laws) made by such organs is called as delegated legislation. As already aforesaid, the Sovereign powers are now vested in three different wings, viz., Executives, Legislature and Judiciary. So far as the legislative powers are concerned, those are given over to

62

ADMINISTRATIVE LAW

Legislatures. However, when the omnicompetent authority, the Legislatures passes over some of their legislative powers to Executives and whereupon Executives make legislation, like the Rules and Regulations, etc., it is called as the "Delegated Legislation". Therefore, it clearly means that Legislatures are omnicompetent to legislate but for certain reasons; they delegate their legislative powers to some subordinate authority, like the Central Government, State Government or to both, or to some other statutory authority. Since the Legislatures delegate their legislative powers to some other authority, the brand name "Delegated Legislation" is given. Since powers cannot be delegated to superior authority and has to be delegated to subordinate authority, the delegated legislation is also called as the 'Subordinate Legislation'. While, the rules, regulations, bye-laws. orders, etc., are the forms of delegated or subordinate legislation, the enactment under which the same are drawn-up, are the 'Primary law or the 'Parent law'. The Delegated Legislation is also thus referred to as the "Child Law" in contra-distinction to 'parent law'. In this context, it may be noted that the enactment passed by Legislatures, say, the Consumer Protection Act, 1986 is called as the 'Primary Act' or 'Parent Act', the legislation drawn-up thereunder. say, the Consumer Protection Rules, 1987, is called as the (i) Delegated Legislation or (ii) the Subordinate Legislation or (iii) Child Law. By whntever name. it may be known, the delegated legislation cannot be read or cannot be construed or cannot be seen in isolation of the Parent Legislation. Further, the powers to legislate (under delegated legislation) are strictly confined to the powers conferred upon it by the Legislatures. The apex court in Kishan Prakash Sharma us. Union of India, AIR 2001 SC 1493 held - that all procedural laws are retrospective unless legislature expressly states to the contrary - Sudhir G. Auguir us. M. Sanjeeu (2006) 1 SCC 141 ./

The Legislation in India possesses wide power of legislation subject, however, to certain limitations such as legislative functions which consist of the determination or choosing of the legislative policy and formally enacting that policy. The legislature cannot delegate uncanalised and controlled power. The retrospective effect given to the scheme is only to overcome the difficulties and Legislature can make laws prospectively or retrospectively.

3. ESSENTIAL LEGISLATIVE FEATURES It must now be clear that the essential legislative powers cannot be delegated under any circumstances. Therefore, it is important to know as to what are the essential legislative powers, so that it should be clear that such powers could not at all be delegated. The following are the essential legislative powers, which cannot be delegated. (i)

(ii) (iii) (iv) (v) (vi) (vii) (viii)

To lay down the broad policy of law. To lay down legal principles which can govern or control any given case. To lay down guidelines for Executives. To repeal the Act. Modifications of the Act (unless guidelines are available). To give retrospective effectTo make certain act punishable. To oust the jurisdictions of the Courts.

LEGISLATURE - II (Delegated Legislation)

(ix)

63

Imposition of Tax. But(a) The Executives can include a particular commodity but cannot exclude it if it is already excluded by Legislature. (b) Rates [of tax] can be determined by Executives on the basis of guidelines OR (c) If taxing authority is Municipality etc., which is an elected body, it can impose taxes.

4. LIMITATIONS ON DELEGATED LEGISLATION (a) Generally (b) The other limitations. (a) Generally If there is a written Constitution, the scope and ambit of delegated legislation are circumscribed by the limits given in the Written Constitution. However, if the limits are infringed, violated or breached, the Courts have the inherent powers to take remedial action. In India, we have the Written Constitution and the delegated legislation has to confine and confirm itself to the limits prescribed by the Constitution of India. However, if these limits are infringed or violated or breached, the Constitution of India invests empowers in Writ Courts to take remedial corrective action. There is no written constitution in England and there, the Parliament is omnicompetent to legislate. In that case, Parliament (in England) has the unfettered powers to delegate its legislative powers. Indeed, in England too the Courts are the protective authorities. It must have thus been noticed from the above that (I) delegated legislation has always to confine and confirm to the Written Constitution and (2) it cannot be contrary to or inconsistent with the primary or parent Act.

(b) The Other Limitations (1) The tax cannot be levied under "Delegated Legislation" or the Rules framed under the Statute. But details can be filled in by the Executives. See: (i) Pandit Banarsi Das us., State of MP, AIR 1958 SC 909, (ii) Corporation of Calcutta us., Liberty Cinema, AIR 1965 SC 1107 (iii) Western India Theatres Ltd. us., MC of Poona, AIR 1959 SC 586

(2) The Delegated Legislation (Rules, Regulations etc.) cannot operate retrospectively unless there is express or implied provision. (3) Financial matters cannot be dealt with under the Delegated Legislation. (4) Penal laws cannot be made under Delegated Legislation unless expressly or impliedly conferred by the Statute. (5) Judicial Review cannot be excluded by Delegated Legislation. In Institute of Patent us. Lockwood, (1894) AC. 347, Lord HERSCHELL (Herschel Doctrine) had observed that exclusion of judicial review by delegated legislation cannot be challenged. Because under the umbrella provision "rules made under the statute shall have the same effect as if they were contained in the Act", the Executives have the powers to

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exclude judicial review. Indeed this view was subsequently disapproved by the House of Lords in Minister of Health us. R. (on prosecution of Yaffe), (1931) AC. 494. The House of Lords held that the power to exclude judicial review was inconsistent with the parent Act. [See - Grounds of Challenge, De tournnment de pouuoir (B){ix) AND When Judicial Challenge is not available, Whether judicial review can be excluded? (D) (c) in Control or Challenges to Delegated Legislation, Judicial Control (lO)(III)]. (6) Quasi-legislation - In doubtful points on the application of legislations, the Executives give their official view of giving some concessions. In Raman and Raman us. State of Madras, AIR 1959 SC 694 the apex Court held that such official views do not have the legal status and as such cannot regulate the rights of the parties.

5. ADVANTAGES AND REASONS DELEGATED LEGISLATION

FOR THE GROWTH

OF

Many factors are responsible for the rapid growth of delegated legislation in every democratic State. The traditional theory of Laissez faire has been given up by every State and the Old Police State has now become a 'Welfare State'. The American Lawyer and Statesman remarks "the old doctrine prohibiting the delegation of legislative powers has virtually retired from the field and given up the fight". The following are the advantages and the reasons for the phenomenal growth of delegated legislation: (I)

(II)

(III)

EMERGENCY - As a matter of fact, the concept of 'delegated legislation' was conceived during the time of two world wars and industrialization gave impetus to it. During the time of wars and industrialisation, on account of emergencies and exigencies, the omnicompetent legislative authority was forced to share its legislative powers with Executives. It helped the Executives to meet with the emergencies immediately and effectively. Thus, during the time of Wars, Epidemics. Floods, Economic Offences, Calamities and such other situations, it is essential that Executives are armed with the legislative powers so that they can meet with the emergent cases effectively. It thus makes absolutely clear that delegated legislation plays very important and vital role in cases of emergencies and exigencies and provides the healing touch. COMMPLEXITY OF MODERN ADMINISTRATION - The two world wars and industrialization had already increased the working of the (Sovereign) States and, as if this was not sufficient, the concept of 'welfare state' brought more and more work for the Sovereign States. The 'welfare states' are now called upon to partake in almost each and every activities of day-to-day. The Executives, therefore, have to act as the guardians and the watchdog of these multifarious welfare activities. For this reason, it is necessary that Executives are vested with sufficient powers to frame rules and regulations, thanks to modern complexity of the administration. PRESSURE UPON PARLIAMENT - We have recorded in the earlier paragraph that, before modernisation, functions of Sovereign State were only two, (i) Preservation of 'Law & Order at home and (ii) Protection of the country from foreign attacks. For this precise reason, the pre-modern Sovereign States are identified as 'Police States' and the modern States as 'Welfare States'. As modern States, for its citizens, undertake several welfare activities, it is but natural that modern day Legislatures have no time to

LEGISLATURE - II (Delegated Legislation)

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(V)

(VI)

(VII)

65

discuss matters of details. Thus, modern Legislatures are forced to transfer their legislative work but only that part of legislative work, which requires consideration on minute details and not the entire work of legislating legislation. The 'Delegated Legislation' does not keep them glued to trifle and trivial issues of minor details of proposed legislation and spares them for working on RCC structure of proposed legislation. The Legislatures, under Delegated Legislation, prepare only the edifice or the skeleton of the legislation and empower the Executives to fill in the details. The modern Legislatures, if refuse to delegate their powers to Executives who are professionals, we will certainly miss the quality and kind of legislation we have to day. TECHNICALITY -The Legislatures may be called upon to legislate on the too technical subject, say, pertaining to Technology, Nuclear Energy, Medical Science. Economics, Law etc. Needless to say that Legislatures are expert politicians but not the 'expert' in every field of knowledge. Therefore, it is essential that, to the possible extent, the persons with special knowledge and know-how partake in the legislation. For example, the Information Technology Act was passed in the year 2000. By this Act, the Legislatures have, inter-alia, provided for the 'digital signatures'. The Legislatures, under Section 10 of the Act, have empowered the Executives to frame rules, inter-alia, prescribing the types of 'digital signature'. The Executives, technically expert in computer science, will then lay down the rules on types of 'digital signatures'. The instances can be multiplied but the essence remains the same that 'Delegated Legislation' gives added advantage of technicality in framing the legislation. FLEXIBILITY - It is easy to make rules, regulations but very difficult to legislate or bring about any amendment in the legislation already passed. Therefore, when situations change after enactment is passed, what can be done to deal with such changed situation? The best way is to empower the Executives to incorporate necessary changes in the enactment already passed by the Legislatures. For example, the Minimum Wages Act is passed. However, it is too well known that minimum wages for different trades, different localities in different times can be provided in the parent Act. The Act thus empowers the Government Executives to fix exact minimum wages in any given trade, in any locality at any time. It may be noted that in doing so, the basic fabric of the enactment is not changed, only the flexibility is given to the parent enactment (The Minimum Wags Act) to operate in all localities, in all trades and at all times. EXPERIMENT - The 'trial and error' is the best method to be exact. The Executives are involved in the enforcement of Laws and they have, therefore, the intimate contact with citizens who take benefit or suffer under the Act. As such, they are the best persons to adopt 'trial and error' method than the Legislatures who may have lost the touch of citizens or the situation after the Act was passed. Therefore, if the working of details (of legislation) is left to the Executives, they can frame rules or regulations based on 'trial and error' method and thus the purpose of legislation can be best achieved in this manner. CHECKS AND BALANCE - While it is the duty of Legislatures to legislate, it is the duty of the Executives to implement and achieve the purpose of legislation legislated by Legislatures. For achieving the purpose of enactment, 'Checks and Balance' by Executives is absolutely necessary. Checks and Balance can monitor and keep control

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(VIII)

on implementation of Laws. Further, only the Executives can effect 'Checks and Balance' as they implement Laws and, therefore, they are aware of shortcomings and hurdles of implementation. Still further, the Executives are the persons on the field and know where the shoe pinches. Therefore, if the Executives have the freedom of formulating rules and regulations, issue circulars and frame policy, they can effect the checks and balance properly and hence the need of delegated legislation. The need explains the reasons of its growth. CONDITIONAL LEGISLATIONS - The new concept of 'Conditional Legislation' has come in vogue. The Legislatures sometimes foresee the need of legislation and pass laws providing that (i) if specified conditions are fulfilled or (ii) in given eventuality, the legislation (passed by them) will come into force. Executives are the best persons, on the spot, to judge it and decide it whether to bring into force the legislation or not. In conditional legislation, Legislatures make the Law, which is complete in itself and no legislative function is delegated to the Executives in the enactment legislated by them. The essential feature of conditional legislation is that it is not brought into force on the passing of the enactment and it is brought into operation only when the specified condition comes into existence. When stipulated condition or contingency takes place, the Executives issue a Notification in the Official Gazette and thereby bring the Act into operation, which was hitherto kept, in cold storage. In Field us. Clark, (1892) 143 US 649, the President was invested with powers to suspend the operation of the Act. which permitted free import of only certain products. The President could suspend the operation of the Act, as a result of which the free import of only certain products to go away. The President could suspend the operation of the Act only if he was satisfied that the duties imposed upon such products were reciprocally unequal and unreasonable. The Supreme Court upheld the validity of the Act taking the view that it was a kind of conditional legislation.

(See also -' Para 9 - Delegated Legislation in India, (i) - Pre-Constitutional Period AND Para 11 Types of Delegated Legislation - B. Conditional Legislation = post)

6. DISADVANTAGES OF IDELEGATED LEGISLATION I The Delegated Legislation has no doubt certain advantages but at the same time it also suffers from certain disadvantages. The same are enumerated as under. (I)

(II) (III)

ABSENCE OF DEBATE - The essence of democracy is that nothing is thrusted upon the citizen without deliberation and debate in the Parliament. It gives transparency to legislation legislated by Legislatures. It ensures that there is no misuse or abuse of powers. It is undoubtedly convenient but it is undesirable that matters of even minor details are left to subordinates when minute details are of vital concern and adversely affects citizens. INADEQUATE CONTROLS - If a given legislation is loosely drafted or if it is drafted in the widest possible terms then even control becomes ineffective. ABSENCE OF INFLUENCE OF PUBLIC OPINION - Since bureaucrats draft the rules and regulations, they hardly give any regard to public opinion. Whereas, in democratic system public opinion plays the most important role.

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ABSENCE OF PUBLICITY - No man can plead ignorance of law. Therefore. it is necessary that the enactment is given the widest possible publicity. However. the Circulars and Orders and such other forms of delegated legislation do not receive the proper publicity. (See - Para-lO Control or Challenge on Delegated Legislation, II Legislative Control, D. Publication AND Para-l2 Classification of Delegated Legislation, D. Sub-Delegation, iii. Criticism)

7. CRITICISM OF 'DELEGATED LEGISLATION ' At the very outset, it may be recorded here that the Legislatures do not do away or' shirk their responsibility of legislating a legislation. They undoubtedly legislate, only the small and unimportant legislative work is passed on to the Executives. There are advantages and so also the disadvantages. Those are the disadvantages, enumerated above. which bring criticism to delegated legislation. Therefore, as far as possible the Legislatures themselves take care that those disadvantages do not come in the way. As aforesaid, in delegated legislation. there is absence of public deliberation or debate. It can also be that public opinion is side-tracked. However. the nature of delegated legislation is so small and unimportant that absence of public deliberation or debate or side-tracking of public opinion does not cause any prejudice. Notwithstanding this, the Legislatures require that the rules/ regulations framed by Executives should be made enforceable only after they are placed before the Parliament and approved by legislatures. So far as checks and control is concerned, it may be noted that Courts are always omnipresent to effect check and control on the delegated legislation. The Executives cannot rely upon the Circular or Order, which is not Circulated, and the Courts always protected citizens in such circumstances. Thus, it should be crystal clear that even if criticism is taken as valid yet, it is hardly worth condemning the delegated legislation. It is all the more so when it can be avoided (by Legislatures) or can be voided (by Courts).

8. PERMISSIBLE AND IMPERMISSIBLE DELEGATIONS Functions, which can be delegated (b) Functions, which cannot be delegated (a)

Functions, which can be delegated (i) Commencement of the Act. (ii) Supplying details - Rule making powers (iii) Inclusion (iv) Exclusion (v) Suspension (vi) Application of existing Laws (vii) Modification ONLY with limitations AND (viii) Prescribing punishment. (b) Functions, which cannot be delegated (i) Essential Legislative functions (ii) Repeal .

(a)

(iii)

Modifications without limitation

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(iv) (v) (vi) (vii)

Retrospective effect Imposition of Taxes Ouster of Court jurisdiction Making certain particular act punishable.

9. DELEGATED LEGISLATION IN INDIA (i) (ii) (iii)

(iv)

Pre-Constitutional Period Post- Constitutional Period Nature of Delegated Legislation in India Principle emerging from apex court rulings.

(i) Pre-Constitutional Period

The discussion on 'Delegated Legislation in India' can be divided into two, (i) Pre-Constitutional Period and (ii) Post-Constitutional Period. The question of constitutional validity of 'Delegated Legislation' came up for consideration, for the first time, as far as India is concerned, in the case of Queen vs. Burah, 1878 (3) A. c. 889 before the Judicial Committee of the Privy Council, the then highest Court of Appeal. The facts of the case are thus: In 1869, an Act, was passed in Bengal whereby Civil and Criminal jurisdiction of Garro Hills was removed from the Courts and it was to be exercised by such officer as the Lt. Governor of Bengal might appoint for the purpose. It was further provided under Section 9 of the Act that the Act could be extended mutatis mutandis to Naga and Khasa Hills. Deputy Commissioner of District tried one Burah for murder and he (Burah) was sentenced to death. Appeal was preferred to Calcutta High Court. In the appeal, the provisions of Section 9 by which the Act could be extended to the other territory instead of legislating the Act for that territory was challenged. Calcutta High Court held that Section 9 was ultra vires of Indian Legislation. As according to Court, Indian Legislature was a Delegate of Imperial Parliament of England. Hence, the said Act could not have been extended to Naga and Khasa Hills by the Indian Parliament. As a result, the sentence passed against the accused (Burah) was set aside by the Calcutta High Court. The matter was carried further to the Privy Council. The Privy Council reversed the decision of the Calcutta High Court and observed that Indian Legislature was not the Agent or Delegate of Imperial Parliament. As such, the Indian Legislature could enact such a law and it upheld the validity of Section 9 of the Act. The Privy Council also made distinction between the Delegated Legislation and the Conditional Legislation. It said that if Laws are full and complete and if only operation is made dependent upon fulfillment of some conditions, then such a piece of legislation would be conditional legislation and would be upheld if conditions are fulfilled. (See also-Para 5. Advantages and Reasons for the Growth, VIII Conditional Legislation AND Para 10. Types of Delegated Legislation - IX. Conditional Legislation) (ll) Post-Constitutional Period

In Jitendranath vs. Province of Bihar, AIR 1949 FC 175, The Federal Court was called upon to decide the constitutional validly of the Bihar Maintenance of Public Order Act, 1948.

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The Act was to remain in force for One Year. However, the Provincial Government of Bihar was (i) empowered to extend the operation of the Act for a further period of One Year (ii) with such modification, as it may be deemed fit. The majority did not upheld the validity of this impugned enactment. The majority held that power to extend the operation of the Act beyond the period mentioned in the Act was a legislative power. As such a power could not be extended by the Executive Order. Similarly, power to modify the enactment, without specifying limitations on such power, can also be said to be an essential legislative function and, therefore, could not be delegated to the Executives. There were several laws, which contained such provisions, and hence all such Laws were to meet with the same fate. The Constitution of India carved out Part C States. The States falling under Part C are direct under the control of the Central Government. And, therefore, going by the ruling given in Jitendranath's case (AIR 1949 FC 175), the Parliament of India (rather than the Government of India) must legislate for these States because powers could not be delegated to the Executives of Part C States. This was thus quite contrary to what is laid down in Section 2 of Part C States (Laws) Act, 1950. Section 2 of Part C States (Laws) Act, 1950 is concerned, it lays down:

'Enactment of PortA States can be extended with such modifications as it (Govemment) thinks fit'. There was also a provision for repeal or amendment. Therefore, the President of India, invited the Hon'ble Supreme Court of India to give its opinion, under Article 143 of the Constitution of india, as to whether it was ultra vires of Parliament to delegate such powers as are in Section 2 of the Part C States (Laws) Act. The Reference is known as the Delhi Laws Act Case (reported in AIR 1951 SC 351). In this Reference, the following provisions were in issue: (1) Section 7 of Delhi Laws Act, 1912, (2) Section 2 of Ajmer Marwar (Extension of Laws) Act, 1947 AND (3) Section 2 of Part C States (Laws) Act, 1950 The Reference was heard by seven judges and all the seven judges gave their respective separate opinions and it is difficult to put down the precise principle. However, broadly speaking, their ruling laid down that: (1) Power to legislate does not include 'to delegate' but Legislature can empower Executives to extend such legislation as have been passed for other territory (the conditional legislation). (2) Executives cannot repeal or amend any Law in force. The importance of the case cannot be underestimated inasmuch as, on one hand, it permitted delegation of legislative powers by Legislature to Executives, on the other hand, it demarcated the extent of such permissible delegation of powers by the Legislature. (fll) Nature of Delegated Legislation in India

The Constitution of India confers two kinds of powers on Executives (1) independent power to make laws (on President or Governor) and (2) the powers delegated by Legislatures. (SEE 13. SUMMARY IN TABULAR FORM OF DELEGATED LEGISLATION = POST). The Constitution of India confers powers on the President/Governors to promulgate ordinances and to frame regulations

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and these powers are always subject to the provisions of the Constitution of India and generally coextensive with the powers of the Parliament. The powers conferred upon the Executives under the enactment are always subject to the provisions of the Constitution of India and the parent Act. The Executives cannot be delegated excessive powers under the parent Act as otherwise delegated legislation can be challenged on the ground of excessive delegation. But the ordinances promulgated by President or the Governor cannot be challenged on the ground of excessive delegation because their powers to promulgate ordinances are not delegated under the enactment but the powers have been conferred by the Constitution itself. Invalidity of delegated legislations arises (a) when any provision of Constriction is violated, (b) delegated legislation is violative of enabling Act - when exceeds its authority and makes provisions inconistent with the Act but not where the Act itself permits ancillary functioning. State of MP us. Bhola, AIR 2003 SC 1191.

(Iv) Principle Emerging from Apex Court Rulings The general principle, which emerges from various rulings of the Hon'ble Supreme Court of India can be summarised as under: (a)

(b) (c)

(d) (e)

(f) (g)

The Constitution of India confers powers and also duty on Legislatures to make laws. These powers cannot be delegated to the Executives or so to say, it can neither create a parallel legislature nor can it destroy its legislative powers. Legislature must retain in its own hands the legislative functions. Once the Legislative function is performed, it is open to the Legislature to delegate to the executives the ancillary and subordinate powers as may be (i) useful (ii) necessary (iii) to complete and (iv) make effective the piece of legislation enacted by it. Legislative Policy may be express or implied as may be reflected in the Title, Preamble, Scheme or the Statements of Objects and Reasons of the Act. Delegation cannot be upheld merely on status or dignity of Delegates but nevertheless, it is one of the important factors to be taken into consideration. Safeguards if impermissible or unwarranted do not make delegation valid. Parent Act and Delegated powers must be consistent.

CASE LAWS ./

./

Delegated Legislation cannot be questioned for violation of principles of natural justice unless statute itself provides for such requirements. Pune Municipal Council us Promoters and Builders Assn., AIR 2004 SC 3502 The Government Resolution was an Executive Order conferring powers on Personnel Department to decide inter-se seniority of promotions. The Water Resources Department, however, arrogated itself the powers and issued gradation list. Held there was no sub-delegation by Personnel Departments to water resources department and otherwise also there cannot be sub-delegation - Delegatus non-potest delegare. Pramod K Pankak us State of Bihar. (2004) 3 SCC 723

LEGISLATURE· II (Delegated Legislation)

10. CONTROL OR CHALLENGE ON DELEGATED LEGISLATION. (I) (II)

(III)

Introduction Legislative Control (A) Scrutiny Committees (B) Laying on the Table AND (C) Consultation (i) Generally (ii) Ordinary Consultation (iii) Extraordinary Consultation (iv) Effect of non-consultation (D) Publication (a) Need of Publication (b) Effect of non-publication (c) Defect in publication Judicial Control (A) General (a) What is ultra-vires (b) What is substantive ultra-vires (c) What is procedural ultra-vires (B) Grounds of Challenge (i) Parent Act is unconstitutional. (ii) Delegation is unconstitutional (iii) Delegation is inconsistent with the Parent Act (iv) Unreasonableness (v) Malafide or Bad faith (vi) Sub-Delegation (vii) Exclusion of judicial Review (viii) Retrospective Effect (ix) De tournment de pouvoir (C) Other Grounds of Challenge (D) When Judicial Challenge is not available (a) Distinction between Legislative and Non-Legislative Acts (b) Distinction between Non-Legislative Acts and Delegated Legislation (c) Whether judicial review can be excluded? (i) Herschel Doctrine (ii) Herschel Doctrine in India

71

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(I) INTRODUCTION No doubt the Parliament never intends to make ultra vires rules or the rules, manifestly unreasonable. It is also true that the Delegated Legislation must act (operate) 'in good faith' and reasonably intra-vires the powers. Nevertheless, there is always inherent danger of misuse and abuse of powers by Delegates upon whom the powers are delegated. The basic problem, therefore, is in controlling the delegates in exercising their powers. As a matter of fact, the control must be introduced at two stages. Firstly, the Legislature must make Laws in such a way that its misuse is impossible. Secondly, Legislature should also provide safeguards in case; there is a misuse. The control over delegated legislation may be divided into two: (1) Legislative Control and (2) Judicial Control. The same are discussed below:

(II) LEGISLATIVE CONTROL The legislative control can be effectively exercised by: (A) Scrutiny Committees. (B) Laying on the table AND.

(C) Consultation (D) Publication

(A) SCRUTINY COMMIITEES

The House of Commons in 1944 had set up the Select Committee on Statutory Instruments. In India also we have (i) the Lok Sabha Committee and (ii) the Rajya Sabha Committee on Subordinate Legislation. The Committees set up by the Legislature scrutinize the reports and make the recommendations and suggestions to the Legislature. The people well conversant with the subject member are appointed on such Committee and hence their recommendations and suggestions are vital and important. (B) LAYING ON THE TABLE

While the Legislature do delegate the non-essential legislative powers upon its Executives, nevertheless, in order to have checks and balance on its Executives, the Legislature requires the subordinate legislation to be placed before it for its approval. The Notaries Act, 1952 in Section 15 (3) lays down that every rule made shall be laid, as soon as may be after it is made, before each House of Parliament, while it is in session. Similarly, Section 31 of the Consumer Protection Act, 1986 also makes the similar provision. So also Section 87 (3) and Section 90 (3) of the Information Technology Act, 2000 requires the rules made by Central Government or the State Government respectively to be placed before the House for confirmation. (C) CONSULTATION (i) Generally

One way of avoiding clash between the Departments and adversely affected persons, consultation is most ideal. By this technique, the affected persons are given an opportunity to give their "Say" and make suggestions, recommendations or objections before the Executives making the Law for them. It is, in present days, unthinkable that rules about doctors can be made without consulting medical associations or rules about advocates can be made without consulting the Bar

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Associations. In fact, in modern days, the technique of consultation is widely used. There are two types of consultations, (i) Ordinary and (ii) Extra-ordinary. (if) Ordinary Consultation

The Ordinary Consultation can also be divided into two, (a) individual consultation and (b) Group or Collective Consultation. Factory Act calls for objections from individuals, their objections are heard and then the appropriate regulation is laid down. Whereas in the collective consultation, the individuals are not called for giving their objections or suggestions but the Association, like the Bar Association, Medical Associations, the Merchants' Associations, the Trade Unions etc. are called upon to participate in the process. (iii) Extra Ordinary Consultation

In this category of consultation also there are two kinds of consultation, (a) the preparatory and (b) the approval. In preparatory consultation, the consultation is obligatory even before the rule or any procedure is laid down. For example, under the Factories Act, in order to have proper compliance of the provisions with regard to safety, ventilation etc., the employees are required to be consulted. In the second category of Extra-Ordinary Consultation of approval, it may be noted that Bye-Laws are allowed to be made by the Co-operative Societies but the same needs to be approved or confirmed by the competent authority. Similarly, the Employers can frame the Standing Orders for their organisation; however, the same needs to be certified by the Certifying Officers under the Industrial Employment (Standing Orders) Act. The delegated legislation, once valid, has the same effect as the Act of Parliament. In the case of Co-operatiue Central Bank us. Industrial, Tribunal, AIR 1970 S.c. 245, it was held by the Hon'ble Supreme Court of India that the Bye Laws made by Co-operative Housing Society under the Act has the same force of law. (But since Writ does not lie against private bodies, it was held that the said bye laws can not be enforced under a writ jurisdiction). But unfortunately, the apex Court in the case of Indian Airlines us. Sukhdeo Rai, AIR 1971 S.C. 1828 had held that the rules made under Section 45 of the Air Corporation Act, 1953 for the terms and conditions of the employees did not have the force of law. The apex Court took such a view because the reguiations under its consideration were merely the terms of contract.

(Iv) Effect of non-consultation The consultation is an effective step in delegated legislation. While in England it is held to be mandatory, in USA the Administrative Procedure Act 1946 lays down the consultation is precondition of rule making powers. In India, the apex Court in Banwarilal Agawalla us. State of Bihar, SC AIR 1961 849 has observed that consultation is essential in the interest of public welfare and for the purpose of effectuating the purpose of the Act. However, in the case of T.B.Ibrahim us. Regional Transport Authority, AIR 1953 S.C. 79, the apex Court held that if the provision of consultation is "Directory" then it can not invalidate the rule.

(D) PUBLICATION (a) Need of Publication Ignorance of Law is no excuse. Therefore, it is essential that adequate means are adopted to publicize the rules so that people are not caught on the wrong footing in ignorance of the rules applicable to them in a given case. Section 30 of the Consumer Protection Act, 1986, Sections 87

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and 90 of Information Technology Act, 2000 and so on, empower the executives to make rules but also lay Jown that rules can be made by notification in the Official Gazette. In State oLMaharashtra us. M.H. George, AIR 1965 SC 722 the Notification was published on 24-11-1962 whereas the Respondent had left Zurich on 27-11-1962. As such, the Respondent was not aware of the government notification imposing restriction on gold import. The apex Court held that suffice it was to publish the notification in India for imposing restriction on gold import.

(b) Effect of non-publication In Haria us. State of Rajasthan, AIR 1951 SC 467, the apex Court was called upon to consider the effect of non-publication of the Jaipur Opium Act. The apex Court held that since the Act was not published, it did not have the effect of Law. In State of Kerala us. P.J. Joseph, AIR 1958 SC 296, the apex Court held that since the Order passed by the Government of Cochin was not published, it did not have the force of law. In Raza Bulund Sugar Co. us. Rampur Municipality, AIR 1965 SC 895, the apex Court on the facts of the case had held that previous publication was mandatory. The Allahabad High Court in Swadeshi Cotton Mills us. Municipal Board, AIR 1976 All 484.

(c) Defect in publication The publication no doubt cannot be avoided but possibility is not ruled out that publication may turn out to be defective in which case, a vital question may arise as to the validity of the subject matter under consideration. The Courts have taken shelter of the mandatory-directory-and substantial compliance. As such, if the publication is mandatory or mandatory requirements appurtenant to publication are not fulfilled then the rule will be invalid, notwithstanding the fact that there was a publication. But if the directory requirements of publication are not fulfilled then the same is not fatal. Because just as a holy bath in the river Ganga purifies and cleanses all sins, the publication will cure all defects, if left out. As recorded above, in Raza Bulund Sugar Co. us. Rampur Municipality, AIR 1965 SC 895, the apex Court held that previous publication was mandatory but not the manner and method of publication and hence the rules were valid as there was substantial compliance was made. In Gouind lal us. Agricultural Produce Market Committee, AIR 1976 SC 263, it was necessary to publish notification in a vernacular language of the local area under the Gujarat Agricultural Produce Markets Act, 1964. Since the notification was not issued in Gujarati, the apex Court held that there was no sufficient compliance of publication and hence the notification was invalid. See also: -

(1) Bangalore Woolen Mills us. Corporation of Banglore, AIR 1962 SC 562. (2) Municipal Board us. Prayagnarain, AIR 1970 SC 58. (3) Tharoomal us. Puranchand, AIR 1978 SC 306. (4) Sriniuasan us. State of Karnataka, AIR 1987 SC 1059.

(III) JUDICIAL CONTROL (A) GENERAL It is accepted norm that delegated legislation does not fall beyond the judicial review. Haria us. State of Rajasthan, AIR 1951 SC 467, State of Kerala us. P.J. Joseph, AIR 1958 SC 296 Raza Bulund Sugar Co. us. Rampur Municipality, SC 467, AIR 1965 SC 895, Swadeshi Cotton Mills us. Municipal Board, AIR 1976 All 484, Raza Bulund Sugar Co. us. Rampur Municipality, AIR 1965 SC 895, Gouind lal u. Agricultural Produce Market Committee, AIR 1976 SC 263. The Court checks the

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Delegated Legislation only and only if it is ultra-vires. Therefore, before proceeding further, it is better to understand the meaning of the term "ultra-vires". (a) What is "ultra-vires"? The term "ultra-vires" is used to denote the excess of legal authority. It came to be used in relation to municipal corporations, to Crown and its servants, and to subordinate judicial bodies. In England the term was applied to the acts of Executives and Colonial legislations. The 'ultra-vires can be (i) substantive ultra-vires and also (ii) procedural ultra-vires. (b) What is Substantive ultra-vires? When any person exercising statutory authority, acts beyond the powers conferred upon him, such acts become ultra-vires and accordingly, void. In other words, it means, the subordinate legislation goes beyond the scope of the authority conferred on it by parent statute/ Act. A piece of subordinate legislation does not have the same degree of immunity as the Statues itself has and it must yield to plenary legislation. Indeed, non-compliance with a directory provision does not invalidate subordinate legislation it is only the inoperative requirements, the non-observance of which invalidates the subordinate legislation. (c) What is Procedural ultra-vires? When the Delegated Legislation fails to comply with procedural requirements prescribed by the parent Act, it is known as procedural ultra-vires. If a statute lays down any particular procedure before the Government can exercise its powers and if it (the Government) fails to follow it, its act falls into the arena of procedural ultra-vires. For example, if the Act lays down that 15 days' public notice of inviting tenders should be given in Official Gazette and if that is not given, the entire action stemming from not giving 15' days' public notice in Official Gazette will suffer from procedural ultra-vires. However, at the same time, it must be noted that only if the procedure prescribed is mandatory and that is not followed, the result of procedural ultra-vires follows and not otherwise. Therefore, it must be borne in mind that there are Mandatory Rules and there are Directory Rules. As such, if the directory rules, regulation or procedure is not followed that does not render the rules, regulation or procedure void or ultra vires. Only if the action/rule is mandatory, the action/rule is held to be ultra-vires. It may also further be noted that even if a rule or regulation or procedure is mandatory and if there is substantial compliance then also the action or procedure or rule or regulation is not held to be ultra-vires. (B) GROUNDS OF CHALLENGE

The Delegated Legislation can be challenged, inter-alia, on the following grounds: (i) (ii) (iii) (iv) (v) (vi) (vii) (viii) (ix)

Parent Act is unconstitutional. Delegation is unconstitutional. Delegation is inconsistent with the Parent Act. Unreasonableness. Malafide or Bad faith. Sub-Delegation. Exclusion of judicial review. Retrospective effect. De tourumment de pouvoir

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(i) Parent Act is Unconstitutional The first and the foremost condition for the delegated legislation to be valid are that the enactment, which confers delegation, must itself be intra-vires or must be constitutionally valid. In Chintamanrao vs. State of MP, AIR 1951 SC 118, the Deputy Commissioner had issued the Order prohibiting the manufacturing of bidis in some areas. The Order passed prohibiting the manufacturing of bidis was held to be invalid because the parent Act itself was held to be ultravires, as it violated the fundamental (right to carryon business, trade or occupation) enshrined in Article 19 ({l){g) of the Constitution of India. In New Maneck Chowk Mills vs. Ahmedabad Municipality, AIR 1967 SC 1801, the Civic authority had imposed tax on machinery whereas it could impose tax only on land. As the Civic Authority was not delegated with powers to impose tax, the imposition of tax itself was invalid and hence the order passed thereunder was invalid for the same. (Ii) Delegation is Unconstitutional

The Legislature itself too cannot transgress the limits of the Constitution. However, if it does so by delegating the authority, which it (Legislature) is not empowered to delegate under the Constitution of India, the delegation itself will not be upheld notwithstanding the fact that (i) the enactment is valid and the (ii) delegated legislation is in consonance with the parent Act. In Narendra Kumar vs. Union of India, AIR 1960 SC 430, the Non-Ferrous Metal Control Order issued under Section 3 of the Essential Commodities Act, 1955 was challenged without challenging the parent Act. Section 3 of the Act empowers the Government to provide for regulation or prohibition of the production, supply and distribution of any essential commodity. As such, by reason of this provision, the Government had powers to make any regulation or prohibition. However, the Government could do so only and only if such regulation and prohibition do not violate any fundamental rights granted by the Constitution of India. Thus, although (i) the Essential Commodities Act, 1955 was not ultra-vires and (ii) although the rules framed thereunder were in consonance with the parent Act, yet the delegated legislation was struck down because it infringed the fundamental rights and unconstitutional. (iii) Delegation Is Inconsistent with the Parent Act

It is needless to appreciate that the parent Act and the rules-regulations framed thereunder must be supplementary and complementary to each other and the two can not be inconsistent with each other. But if there is any inconsistency, it will be the rules-regulations, which will be held to be ultravires and not the parent Act. The validity of the rules is always open to challenge on the ground that the authority emprwered to frame rules, wrongfully exercised its powers or that the authority has exceeded its authority fri exercising the powers. In Mohd. Yasin vs. Area Committee, AIR 1952 SC 115, the civic authority was empowered to charge fee only for the use and occupation of property of the Committee. The Town Area Committee framed bye-laws imposing levy on Wholesalers irrespective of any use or occupation of property. The apex Court held the bye-laws ultra-vires. In DYO vs. Hajelay, AIR 1972 SC 2452, the statute provided imposition of punishment on its employees by Appointing Authority. The Assistant Manager who was not the Appointing Authority was empowered to impose punishment. The apex Court held such delegation of powers (of punishing employees) to sub-ordinate Authority than the Appointing authority as ultra-vires.

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(Iv) Unreasonableness The Delegates of Legislature cannot make any rule, regulation, bye-law etc., which suffers from unreasonableness. While it is un-denying that Executives must have discretion vested in them, it is also equally true that the discretion cannot be unfettered, unguided or unreasonable. In Dwarka Prasad us. State of Up, AIR 1952 SC 224, the validity of Clause 4 (3) of the UP Coal Control Order, 1953 was challenged. It was, inter-alia, provided in the said Coal Control Order that Licensing Authority may grant, renew or refuse a license and may suspend, cancel, revoke or modify it for the reasons recorded in writing. However, there were no guidelines or rule to regulate the discretion of the licensing Authority. The apex Court, as such, held it to be arbitrary and unreasonable. Similarly, termination of services on first pregnancy was held to be unreasonable by the Apex Court in Air India us. Nargesh Meerza, AIR 1981 SC 1829.

(v) Malafide or Bad Faith While the parent Act cannot be challenged on the ground that it suffers from malafide or bad faith or that it was passed with improper motive, the delegated legislation can surely be challenged on these grounds. However, it must be borne in mind that allegations of malafide are more easily made than made out. Therefore, although in several cases, challenge was raised on malafide but without success. Altering a policy or a policy decision does not necessarily mean that there has been legal mafides. But if Court finds that policy decision is not in accordance with law, it can only direct the government to reconsider the matter and it cannot itself make a decision. Union of India us. Kannadapara Sanghatana (2002) 10 SC 226.

(vi) Sub-delegation See - Classification of Delegated Legislation, Sub-delegation (12)(0)

(vii) Exclusion of Judicial Review [See here - Grounds of Challenge, De toumnment de pouuoir (B)(ix) AND When Judicial Challenge is not available, whether judicial review can be excluded? (D) (c)l.

(viii) Retrospective effect The legislature can always make laws prospectively or retrospectively but always subject to the provisions of the Constitution of India. However, such latitude cannot be given to the delegates of legislature. The danger of conceding such a wide power to a delegated authority should not be overlooked. However, some statutes specifically confer power on rule-making authority to frame rules with retrospective effect. Thus, it should be clear that sub-ordinate legislation couldn't be with retrospective effect unless the rule-making authority is EXPRESSLY vested with such

power. Case Laws: (1) Howell us. Falmouth Boat, (1951) All. E.R.278. (2) Indramani us. Natu, AIR 1963 Sc. 274. (3) Raj Soni us. AIR Officer, i/c Admn. AIR 1990 SC 1072. (4) Ramkrishna us. State of Bihar, AIR 1963 SC 1667.

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(5) (6) (7) (8)

State of MP vs. TIkamdas, AIR 1975 SC 1429. Jawharmal vs. State of Rajasthan, AIR 1966 SC 764. Asst. Comr. Buckingham & Carnatic Co. (1969) 2SCC 55. Lohia Machines Ltd. vs. Union of India, AIR 1985 SC 42l.

(9) Bakul Cashew vs. STD, AIR 1987 SC 2239. (10) Nachne vs. Union of India, 1982 SC 1126.

(Ix) De torunment de pouvoir While it is no denying that Executives must be given sufficient discretion to act and carry out the administration in accordance with the legislative intent and purport, it is also equally true that the Executives may act not within the bounds of the legislative intent and purport and transgress it with immunity. In order to meet the challenge, the French Legal System has developed what is called as the De tournnment de pouvoir. If the administrative action is in misuse and abuse of powers vested in the Executives, the same can be challenged under this principle. In simple words, the Executives are duty-bound to exercise their powers for which the same are invested in them and they are not given any license to use it for any other purpose than for which these powers are invested in them. Thus, when the Executive exercises its powers for purposes other than those the delegating authority intended to have those powers used for, such use of powers by Executive can be challenged under this principle. (C) OTHER GROUNDS OF CHALLENGE

The other grounds of challenge, inter-alia, are as under: (a) (b)

Error of Law Failure to perform duty, when a duty is imposed by the Legislature upon the Executives (c) Misuse and abuse of powers. The discretion must be exercised judiciously and it can not be misused and abused. (d) Wrong motives (e) Improper consideration (f) Proper consideration not taken into consideration (g) Reasonableness -impropriety (h) Bad faith or suffering from good faith (i) Against Justice and Equity (j) Estoppel. (D) WHEN JUDICIAL CHALLENGE IS NOT AVAILABLE (aJ (b)

(c)

Distinction between Legislative and Non-Legislative Acts. Distinction between Non-Legislative Acts and Delegated Legislation Whether Judicial Review can be Excluded? (i) Herschel Doctrine (ii) Herschel Doctrine in India

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(a) Distinction between Legislative and Non-Legislative acts The legal rights flowing from it may be of a particular nature but if it is not the legislative act, the legal rights may be altogether different. Therefore, it is in this context, it is essential to know as to what are the legislative acts and what are not or the non-legislative acts. The Legislative act is the process of formulating a general rule of conduct, without reference to a particular person and usually operating in future. The acts falling in this category are called as "legislative acts" and the acts not falling in it are called as the non-legislative acts.

(b) Distinction between Non-Legislative acts and Delegated Legislation

As recorded earlier, there are two modes of making Legislation. One is Legislatures themselves make the Law and the other one is Legislatures allowing its subordinate authority to make law called as "Delegated Legislation". The Rules, Regulation, Bye-Laws are the forms of "Delegated Legislation" . But it should be fairly clear that although the 'Delegated Legislations" are not made by Legislature, yet there is a process of law-making in it. Whereas there is no "law-making process" in the case of non-legislative acts. That marks out difference between the two, the Delegated Legislation and Non-legislative acts, although only the Executives perform both these acts. The distinction can be set out in the tabular form as under: "Delegated Legislation"

Non-Legislative Act

Publication is necessary

Publication is not necessary.

Suffice it would be to follow the "Procedure" or the "Formalities" prescribed in the parent Act and there is no need to follow the principles of natural justice.

Principles of natural justice must be followed.

Malafide cannot be pleaded

Malafide can be pleaded against the

in seeking judicial review or judicial remedy against the Executives which has exercised their powers.

Authority which has exercised its powers.

The statute either expressly or impliedly excludes judicial review in which case judicial control is not available. The common most illustration can be that in some statutes, it is provided (i) Rules made ... shall not be called in question in any Court (ii) Rules made shall have effect "as if enacted in this Act". In Institute of Patent us. Lockwood, (1894) A.C. 347, Lord HERSCHELL (Herschel Doctrine) had observed that exclusion of judicial review by delegated legislation can not be challenged. Because under the umbrella provision "rules made under the statute shall have the same effect as if they were contained in the Act" the Executives have the powers to exclude judicial review. Indeed this view was subsequently disapproved by the House of Lords in Minister of Health us. R. (on prosecution of Yaffe), (1931) A.C. 494. The House of Lords held that the power to exclude judicial review was inconsistent with the parent Act. (See-post).

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In doubtful points on the application of legislations, the Executives give their official view of giving some concessions. In Raman and Raman us. State of Madras, AIR 1959 SC 694, the apex Court held that such official views do not have the legal status and as such can not regulate the rights of the parties.

(c) Whether judicial review can be excluded? (i) Herschel Doctrine

As a general rule, the judicial review cannot be excluded; however, one view appears to be that by necessary implication it can be done so. It may be at the outset noted and as earlier stated that in many statutes it is laid down: - "(i) Rules made ... shall not be called in question in any Court (ii) Rules made shall have effect "as if enacted in this Act". If the Executives exclude the judicial review pursuant to this provision, then what? This was considered in the case of Institute of Patent us. Lockwood, (1894) AC. 347. In the said case, Lord HERSCHELL had observed that exclusion of judicial review by delegated legislation cannot be challenged because the Executives have the power to exclude judicial review, pursuant to powers conferred upon them. The view of Lord Herschel was that: A Clause in the Statute to the effect "the rules made under the statue shall have the same effect as if they were contained in the Act" would for all purposes mean that the rule would be part of the Act and for all purposes one has to treat the rule exactly as if they were in the Act. This view of Lord Herschel is known as the Herschel Doctrine. However, this view was not upheld by the House of Lords in the case of Minister of Health us. R. (on prosecution of Yaffe), (1931) AC. 494. It was held in this case that since the impugned Order was in conflict with the provisions of the Act, it was not an order under the Act and hence not saved by the Clause "shall have effect as if enacted in this Act". In any case, the words "shall have effect as if enacted in this Act" do not exclude the judicial consideration of 'uires'.

(ii) Herschel Doctrine in India The Hon'ble Supreme Court of India in the following cases has followed the Herschel Doctrine. (1) Chief Commissioner of Ajmer us. Radhe Shyam, AIR 1957 SC 304.

(2)

Chief Inspector of Mines us.

K.c. Thapar,

AIR 1960 SC 838.

(3) State of Kerala us. Abdulla & Co., AIR 1965 SC 1585.

However, the apex Court in the case of State of Kerala us. Abdulla & Co., AIR 1965 SC 1585 has also observed to the effect that if the State transcends its authority, the rule will be invalid because rules made in exercise of delegated authority are valid and binding only if made within the limits of authority conferred. Validity of the rule Is always open to challenge on the ground that It is unauthorised. Thus, it is clear that in India the Herschel Doctrine is not in its totality or unchecked or uncontrolled.

11. TYPES OF DELEGATED LEGISLATION (A)

Nature of Delegation

(B) Conditionl Legistation (C)

Conditional Legislation and Delegated Legislation - Distinction

(D) Distinction is Artificial- (Subordinate is a Broader Classification)

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(A) NATIJRE OF DELEGATION The classification of delegated legislation can be made according to object or procedure or even according to nomenclature. The classification according to Object, Procedure and Nomenclature is considered in the next paragraph and the said discussion can be beneficially read along with this. Suffice it would be to discuss here the "Types" of Delegated or Subordinate Legislation. (I)

POWER TO BRING ACT INTO FORCE - Legislature sometimes fixes the date to bring the Act into force and sometimes they leave it to Executives. In the case of the Code of Criminal Procedure, 1973, the Legislatures under Section 1 (3) had fixed 1st April 1974 as the date on which the Code to come into force. Accordingly, the Code came into force on 1-4-1974, without anything further being done. Whereas in the case of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1973, the Maharashtra State Legislatures left it to the State Government to bring the Act into force by issuing notification in the Official Gazette. In that case, although the Act was passed in 1971 and although the President had given his assent on 1-2-1972, yet the State Government did not bring the Act into force until 1975. The Maharashtra Government finally brought the Act into force only on 8th day of September 1975, by issuing a Notification to that effect in the Official Gazette. This power allows the Executives the 'breathing space', which is so essential for them to set up the administrative machinery. It also affords sufficient time to Executives to gear up themselves for the enforcement of new legislation. The publication and thereby bringing the enactment to the public notice is one of the ingredients of the democratic set up where ignorance of law is no excuse. The power so conferred upon the Executives enables them to take such necessary steps as may be found necessary to give widest possible publicity of the new legislation for public good.

(II)

(III)

(IV)

POWER TO APPLY THE ACT - The Legislatures also sometimes leave it to Executives to apply and enforce the enactment to the territory under its jurisdiction. The Bombay Industrial Relation was enacted for the territorial jurisdiction of the erstwhile Bombay Presidency. The Bombay Presidency was after independence formed the erstwhile Bombay Sate. The Bombay State was then bifurcated into two, the Gujarat State and Maharashtra State. The Gujarat State extended the said Act for its State also. POWER TO MODIFY THE EXISTING LAW - The Legislatures also some times empowers the Executives to modify the existing law, which were enacted by them, to suit the needs of the time. Such a provision is called as the HENRY VIII CLAUSE. It is called so because the King Henry VIII is popularly known as the autocrat king who would adopt any law for enforcing his whims and fancy. Under his regime, the bureaucrats could do anything and everything without regard to public convenience or the public good. Such power is very often misused and abused by the Executives for their personal interest. Therefore, the modern legislatures have always avoided such type of delegation of their legislative powers to the Executives. POWER TO EXTEND OR EXEMPT - Legislatures in some cases legislate the enactment for a shorter duration. However, they give powers to Executives to extend the Act by issuing notification in the Official Gazette to extend the life of the Act. The Bihar Maintenance of Public Order Act, 1948 is the illustrative enactment of this

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(V)

(VI)

(VII)

(VIII)

nature of delegated legislation. Legislatures also allow the Executives to extend the provisions of the Act to some other objects, which are similar to the objects for which they have already framed the enactment. The Legislatures enacted the Minimum Wages Act and made applicable to certain industries. However, they have also empowered the Executives to extend the said Act to some other industries too. Some forms of subordinate legislation empower the Executives to exempt the applicability of the Act. The Employees Provident Funds and Miscellaneous Provisions Act (popularly known as PF Act), under Section 16 lays down that exemption from the applicability of the Act can be granted by the Government. POWER TO MAKE RULES - It is the most common type of delegated legislation. Very fondly, the rule making provision is referred to as to 'clothe' the statue. In most of the enactment, it is left to the appropriate government to frame the rules for carrying out the purposes of the Act. The Industrial Disputes Act is framed by the Legislatures; however, the Central Government as well as the State Government is empowered to make rules. Thus, there are the Industrial Disputes (Central) Rules and also the Industrial Disputes (Bombay) Rules and so son. POWER TO MAKE RULES BY AUTHORITIES OTHER THAN GOVERNMENT - The Legislatures some times gives powers to make rules to the authorities other than the Central or State Government. The Legislatures in Civil Procedure Code empowers the High Courts to make their own rules for the administration of justice. POWER TO FILL IN DETAILS - The Legislatures make the Act, which is merely a skeleton, and the Executives are left to fill in the flesh and bones. During the Wartime, these types of legislation were in vogue. POWER TO REMOVE DIFFICULTIES - The Legislatures are aware of the difficulty in making the enactment and as such, in case, any difficulty arises in implementation of the enactment, powers are given to the Executives to remove such difficulty. The Foreign Exchange Regulation Act, 1973 under Section 80 empowers the Central Government to remove any difficulty in giving effect to the provisions of the Act. The Legislatures have indeed prescribed the period of limitation of 2 years from the commencement of the Act after which the Executives cannot act under this Section.

(B) CONDITIONAL LEGISLATION The Conditional Legislation is also called as the Contingent Legislation. If laws are full

and complete and that only the operation is made dependent upon fulfillment of some conditions then such a piece of legislation is the Conditional legislation and can be upheld if conditions are fulfilled. In the conditional legislation, it is the duty of the Executive to apply the law after performing the 'Fact Finding' Authority. As such, the Executives have to inquire whether 'Facts' requiring operation of Act exists. It is thus left to the discretion of government whether to exercise the delegated powers or not. In the case of State of Bombay vs. Narottamdas, AIR 1951 SC 69, the Bombay City Civil Court Act, 1948 was challenged. In the Act, the Legislature had provided that government can increase the pecuniary jurisdiction of the Court from Rs. 10,000/- to Rs. 25,000/-. The apex Court upheld the Act because Act could be extended only if given circumstances prevailed. The apex Court held it (the Act) as the conditional legislation. (see also - Para 5- Advantages and Reasons for the growth, VIII - Conditional Legislation AND Para. 9. Delegated Legislation in India - i. Pre-Constitutional Period l

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(C) CONDITIONAL LEGISLATION AND DELEGATED LEGISLATION - DISTINCTION No doubt, Conditional Legislation is only species of the Delegation Legislation; nevertheless, an artificial distinction is sought to be made on the touchstone of discretion. In the case of Conditional Legislation, the Executives are vested with no discretion, inasmuch as the Executives are duty bound to bring the Act into force when stipulated condition/s is/are fulfilled. Indeed, it is true that there need not be total absence of discretion in Conditional Legislation, e.g., if Legislatures lay down that the Act can be brought into force in case of emergency. Whether there exists or not an emergency cannot be decided merely on facts, good judicious discretion will have to be used. But the absence or presence of discretion is not the core issue; the core issue is fulfillment of condition. Whereas, in the case of delegated legislation, other than conditional legislation, the discretion is the core issue and the question of fulfillment of any condition does not arise. In the Conditional Legislation, the Executives act as fact-finding authority to the extent of finding out the factual position as to whether the condition stipulated by Legislatures exists or not and if exists then to bring the Act into force. In conditional legislation, the legislature makes the law. It is full and complete and executives are given powers to bring it into force only if stipulated conditions are fulfilled. The conditional legislation is also called as the Contingent legislation. However, there is a fine distinction underlying between the two. In the case of State of Bombay us. Narottamdas, AIR 1951 S.c. 69 the Bombay City Civil Court Act, 1948 was challenged. In the Act, the Legislature had provided that government can increase the pecuniary jurisdiction of the Court from Rs. 10,000/- to 25,000/-. The Supreme Court of India held that the legislature itself had laid down the limit of Rs. 25,000/- and it was only for the Executives to extend it if given circumstances prevailed. The Court held that it was a conditional legislation. In the conditional legislation, it is the duty of the Executives to apply the law after performing the 'fact-finding' function (Le., to inquire whether facts requiring operation of Act exist). On the other hand, in the case of Delegated legislation, it is left to the discretion of the Government whether to exercise the powers delegated or not. In the case of Hamdard Dawakhana us. Union of India, AIR 1960 S.c. 554 the Supreme Court pointed out the distinction between the two. The apex Court stated that in the case of Conditional Legislation, the delegated powers are that of DETERMINING (Le., when a rule of conduct declared by legislature shall become effective). Whereas in the case Delegated Legislation, it is the delegation of rule making powers, which may be exercised constitutionally by the Administrative Agent.

(D) DISTINCTION IS ARTIFICIAL - (SUBORDINATE LEGISLATION IS A BROADER TERM) Indeed, there is no total absence of discretion in the conditional legislation. Because whether emergency exists or not, or whether, tariff rates are high or low, or whether application of law is reasonable or unreasonable, necessarily involves some amount of discretion. Therefore, distinction sought to be made out is only an artificial distinction and not the real one. As a matter of fact, Subordinate Legislation is the broader term, which includes the narrower term Conditional Legislation. The Conditional Legislation is a form of delegation and a very common instance of delegation (Delegated Legislation).

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12. CLASSIFICATION OF DELEGATED LEGISLATION (A) General (B) Classification according to Nomenclature (C) Bye Laws (i) General (ii) Peculiarities (D) Sub-Delegation (i) Meaning (ii) Object (iii) Criticism (iv) Delegatus potestas non potest delegare (v) Limitations to sub-delegation (A) GENERAL

The Delegate or Subordinate Legislation can be classified into three, according to (A) Objects, (B) Procedure and (C) Nomenclature. Earlier the "Types of Delegated Legislation" are considered fairly in detail. The "Types of Delegated Legislation" is nothing but the Classification. Therefore, same discussion is avoided here. Nevertheless, (i) Rules, Regulations etc., need some clarification to explain Classification (of Delegated Legislation) according to Nomenclature, (ii) Bye-Laws and (iii) Sub-Delegation require discussion. The same is as under: (B) CLASSIFICATION ACCORDING TO NOMENCLATURE

Very often Executives, in exercise of their powers under Statute, pass 'Orders' in the nature of clarification. Since these Orders are in exercise of delegated authority, the question of its classification immediately comes up. Same thing happens in the case of Rules and Regulations. Simple method would be to classify them according to nomenclature. But if Delegated Authority fail to use the correct nomenclature (for "Rules", "Regulation", and "Orders") the classification according to nomenclature is bound to fail. It is in this context, it is necessary to bear in mind the correct use of these terms. The nomenclature "Rule" should be used when subordinate or delegated authority exercises the powers in laying down the procedure (to be followed in enforcing the provisions of the statute). The nomenclature "Regulation" should be used when subordinate or delegated authority exercises the power in laying down the substantive law. And the nomenclature "Order" should be used when powers are exercised for (i) passing the quasi-judicial decisions or (ii) for exercising the executive powers. Thus, it should be clear that classification according to nomenclature is adopted only because the terms like Order, Rules and Regulations are indiscriminately used in the statutes. (C) BYE LAWS (l) General

The "Bye-Laws" is a special kind of Delegated or Sub-ordinate legislation. It has its own peculiarities, not found in other delegated legislations. We have seen that the Legislature

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delegates it legislative powers to its subordinate authority, the Government. But in the case of Bye Laws, not only the governmental bodies and government corporations but also the private corporate bodies are delegated with the powers to make law. For Example, the Legislature, under the Co-operative Societies Act, delegates its legislative powers to co-operative societies like the (co-operative) housing societies and banks to make Bye-Laws for its own governance. Thus, the peculiarity of the Bye Laws is that even the private bodies are delegated with the power to make Bye-Laws. These Bye-Laws have to be approved by the authority under the Act and only thereafter it (Bye-Laws) comes into effect and force and not otherwise. (li) Peculiarities

The Bye Laws have its own peculiarities, not found in the other forms of Delegated Legislation. Some of the peculiarities can be set out as under: (a) The independent statutory corporations, like the co-operative housing societies, can make Bye Laws. (b) The Bye Laws requires approval, not of the Legislature but of the (Government) authority appointed under the Act. Only after such approval, it comes into effect andnot otherwise. (c) The operation and/or the application of the Bye Laws, although general, are restricted to the area for which it is made .

.

(D) SUB-DELEGATION (i) Meaning: When "Delegate" further delegates, it is called as "Sub-Delegation". In other words, the Delegate of Legislature makes further delegation, called as Sub-Delegation. In order to avoid confusion between Subordinate Legislation and Sub-delegation, it is necessary to bear in mind the distinction very distinctly. In subordinate legislation, the Legislatures delegate their legislative powers to Executives but in sub-delegation, the Executive, the Delegate of Legislature, further delegates its powers to its subordinate authority. To simplify the meaning, it can be said that the Government, sometimes, is authorised (under the Statute) to sub-delegate the rule making powers. (li) Object: The powers can always be delegated. Therefore, the Delegate too has power to pass it on. In fact, it is germane and/or collateral to the whole exercise of enacting the enactment. Therefore, whenever there is an exercise of enacting an enactment, complete in itself, delegation and sub-delegation crops in. Thus, the object of sub-delegation is no different than the object of delegation. If administrative authority is not vested with necessary powers, it may find it difficult to carry out the legislative intent into effect. In some cases, it may dilute the accountability of the administrative authority. Therefore, to equip the administrative authority with sufficient powers and make them accountable, the sub-delegation is permitted. (iii) Criticism: The jurists unanimously criticise sub-delegation on various and diverse

reasons and grounds. According to them, sub-delegation of legislative powers tends to offend the 'Rule of Law' and parliamentary sovereignty. The petty officer may very casually make a rule under sub-delegation. Such a casually made rule may create difficulty for common men inasmuch as the rule in question sets up a standard of conduct for all to whom it applies and no

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individual can afford to ignore it. Further, it becomes difficult for people to know whether the officer is acting within his prescribed sphere of authority. Yet another criticism that can be levelled is that, in the case of sub-delegation, there is no mandatory requirement of publication. Whereas publication of delegated legislation is mandatory. The ignorance of law is no excuse and yet, in absence of publication, a citizen may not know the rule made by authority under subdelegation and may act in breach of such a rule. The liberty of ordinary citizen, affected in this manner, is thus destroyed. Therefore, there is a strong presumption against construing a grant of delegative legislative power. Nevertheless, it is also true that absence of sub-delegation weakens the safeguards granted by the Act and dilutes the accountability of administrative authority. Therefore, it is now fairly settled that sub-delegation is permissible only and only when the Statute confers it expressly or impliedly and not otherwise and that limits the scope and ambit of sub-delegation. No man can plead ignorance of law. Therefore, it is necessary that the enactment is given the widest possible publicity. However, the Circulars and Orders and such other forms of delegated legislation do not receive the proper publicity. (See - Para - 6. Disadvantages of Delegated Legislation , IV. Absence of Publicity AND 10 Control or Challenge of Delegated Legislation, II Legislative Control, D. Publication)

(Iv) Delegatus potestas non potest delegare: The maxim, "Delegatus potestas non potest delegare" simply means, the agent cannot further delegate his powers. The maxim is the principle originating in private law but generally adopted in the public law. The subdelegation, therefore, must not offend the principle enshrined in the maxim. Necessarily, therefore, a government agency entrusted with a sub-ordinate law-making authority cannot delegate it further to another agency, unless and to the extent permitted by the parent Act, expressly or by necessary implication. The maxim is not a "Rule of Law". It is a "Rule of Construction" or rule of interpretation. (v) Limitations to sub-delegation: First of all, as recorded above, the sub-delegation can be adverted to, only and only if the statute permits it and not otherwise. No doubt, if the statute expressly provides for sub-delegation, it is always better but if not, it can be inferred under the rule of interpretation, viz. "by necessary implication", taking into consideration the intent and purport of the Act. Secondly, where a thing is required to be done by certain person in certain manner, that person must do it in that manner only or not at all. If Statute directs that certain acts shall be done in any specified manner or by certain persons, the act done by any person in any other manner is impliedly prohibited [Barium Chemicals Ltd. vs. Company Law Board, AIR 1967 SC 295 (311)]. Thirdly, if sub-delegation is to be made through regulations, passing a resolution could not effect it (Naraindas v. State of MP, AIR 1974 SC 1232). The limitations thus imposed by Statue on sub-delegation can not be ignored. In Ganpati Singhji vs. State of Ajmer, AIR 1955 SC 188, the Act empowered the Chief Commissioner to make rules for establishment at 'Fair'. The Chief Commissioner framed rules in which the District Magistrate was given powers to make his scheme to see that the conservancy and sanitation at Fairs were observed. The scheme drawn up by Magistrate was held to be invalid. Actions subject to approval holds good unless it is dispproved. But if it is subject to permission, the action does not become effective unless permission is obtained. High Court of Judicature for Rajashtan us. PP Sing. AIR 2003 SC 1029.

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When a statutory authority is required to d a thing in a particular manner it must be done in the same manner or not at all. Bhavnagar University vs. Palitana Sugar Mills (P.) Ltd. AIR 2003 se 511. It is permissible to exercise powers under Statute in which rules are yet to be framed. Orissa State (Prevention & Control of Pollution) Board vs. Orient Paper Mills. AIR 2003 se 1966. In Central Talkies vs. Dwarka Prasad, AIR 1963 se 606, it was provided that no suit shall be filed for eviction of a tenant without permission either of a District Magistrate or any officer authorised by him in this respect. The powers were delegated to the Additional District Magistrate. The permission granted by Additional District Magistrate was upheld. In Ajab Singh vs. Gurbachan Singh, AIR 1965 se 1619, the government was delegated powers to make rules for detention not by any officer below the rank of District Magistrate. The Additional District Magistrate passed the order of detention. It was held to be bad in law. In AK. Roy vs. State of Punjab, AIR 1986 se 2160, the statue conferred power initiate prosecution to the government. The Government by notification delegated its authority to the Food Authority. The Food Authority, in turn, delegated its powers to the Food Inspect. The subdelegation to Food Inspect was held to be ultra-vires. In Hari Chand vs. Batala Engineering Co., AIR 1969 se 483, the power of requisitioning a property was given to District Magistrate. The Additional District Magistrate passed the order of requisitioning the property. The Order requisitioning the property was held ultra-vires.

CASE LAWS ,/ ,/

,/ ,/

,/

If Executive instructions conflicts with Rules, Rules will prevail and not the instructions - Virendra Singh vs. State of Haryana, (2004) 12 see 588 If subordinate legislation conflicts with the parent legislation, it must give way to parent legislation. - ITW Sigvoda India Ltd. vs. C.CE (2004) 3 see 48 Executive instructions if conflict with statutory provisions, the latter will prevail. DDA vs. Jogendir singh Monge (2004) 2 see 297 Rules cannot have over riding effect over the provisions of another Act· Haryana State Cooperative Land Dev. Bank Ltd. vs. Banks Employees Union (2004) 1 see 574 Subordinate legislation when made validly has the same effect as that of the Parent statute. State of Punjab vs. Devans Modern Brevergies (P) Ltd, (2004) 11 see 26

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13. SUMMARY IN TABULAR FORM OF DELEGATED LEGISLATION LAWS

•

•

By Executives Called as Delegated Legislation Or Subordinate Legislation or Or Child Law

By Parliament Called as 'Parent Law' Or Primary Law, e.g., Indian Contract Act, 1872

• Powers of Delegated Legislation can be

+ Legislative Independent powers are conferred on President & Governors to promulgate Ordinances under Articles 123 & 212 of the Constitution of India

I

+

Non-Legislative OR Executive Powers e.g., powers of rule making etc. (See - distinction between Delegated Legislation and Non-Legislative Acts)

•

Main Act supervises and/or controls the powers of delegated legislation.

+

Child Legislation must be (and always) in confirmation with the Parent Act. Publication is necessary

+

Malafide cannot be pleaded

Procedure prescribed by Parliament has to be followed. Malafide of the Executives can be pleaded. Delegation can be upheld if POUCY is in accordance with which such powers can be exercised. Delegated Legislation can be Challenged for- Violation of Articles 14 and 16 of Constitution of India. -

unreasonableness. -impropriety, malafide or Bad faith. retrospective effect. error of Law failure to perform duty. misuse and abuse of powers. injudicious Discretion wrong motives improper consideration proper consideration not taken into consideration

ETC.

DOD

CHAPTER-7

JUDICIARY - I (Principles of Natural Justice) SYNOPSIS

1. 2. 3.

Origin of Natural Justice The Rise of Principles of Natural Justice What is Natural Justice? (A) No man shall be condemned unheard or Audi Alteram partem (a) Notice AND (b) Hearing. (I) Oral Hearing (a) Notional Distinction between Hearing and Oral Hearing (b) What is Domestic Enquiry? (c) 'Oral Hearing' under Article 311 of the Constitution of India (d) When Oral (Personal) Hearing can be denied? (II) The right of Cross-examination (III) Examination of Witnesses (IV) The Right to Appear through Advocate or a Person of his Choice (B) No man should be a judge in his own cause or Nemo Debet esse iudex in prprie causa (a) General (b) Meaning of 'Bias' (c) Types of 'Bias' (i) Pecuniary (ii) Personal (iii) Official (C) Speaking Order' or 'Reasoned Decision' must be passed (D) One who Hears should Decide 4. Extent of Applicability of Natural Justice 5. Against whom Principles of Natural Justice Can be enforced Case Laws (89)

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1. ORIGIN OF NATURAL JUSTICE It is believed that Adam had eaten the fruit prohibited by God. But God did not punish him until he was called upon to make his defence. ''Adam'', says God, "hast thou not eaten of the tree, whereof I commended thee that thou shouldst not eat?" FR. vs. UNIVERSI1Y OF CAMBRIDGE, (1723) 1 HC]. It is the first "HEARING" in the annals of human history. In the case cited, Dr. Bentley was deprived of his Degrees for his alleged misconduct. The King's Bench held that the order of university was null and void because before cancelling Degrees, the university had not given the Notice of Hearing to Dr. Bentley. The Principle of Natural Justice only means a party is not to suffer in person or purse without being heard.

2. THE RISE OF IIPRINCIPLES OF NATURAL JUSTICE11 - JUS NATURALE When Romans came in commercial contact with Non-Romans, the Roman Laws could not be wholly made applicable to transactions with Non-Romans. Therefore, the Roman Jurists borrowed Non-Roman Customs (a) capable of general application and (b) common to the Law of Nations or the forum jus qatium and developed the legal principles, the Jus Naturale or the Principles of Natural Justice. In doing so, they acted upon the belief that any rule of law [common to agreeable nations] must be in consonance with reason and therefore fundamentally just and lawful. The newly developed principle helped transformation of rigidity of Jus Civili of the Roman Law into a more equitable system. The origin and development of Equity in Common Law in England owed much to natural law and natural justice.

3. WHAT IS NATURAL JUSTICE? At the very outset, it must be made clear that 'Natural Justice' must not be taken to mean that there is any justice natural among men. In fact, there is no such thing like justice in the modern sense and though highly potential and attractive, the phrase 'Natural Justice' is a vague and imprecise concept. Naturally, therefore, it is not possible to define the expression in exact terms and so also it is not possible to make an exhaustive catalogue of the Rules of Natural Justice. The rules of 'Natural Justice' cannot be petrified or fitted into rigid moulds, Shri Krishna Das Theatre vs. State of M.P., 1977 SC 1691, Menka Gandhi vs. Union of India, (1978) 1 SCC 248. The Natural Justice has meant many things to many writers. Some call it substantial justice and some call it fundamental justice. The Common Law Layers have used it to mean 1WO narrow principles, viz., (A) No man shall be condemned unheard or Audi Alteram partem AND (B) No man should be a judge in his own cause or Nemo Debet esse iudex in prprie causa. Due to rapid growth and development of Constitutional and the Administrative Law, a new principle of Natural Justice is also evolved Le., (C) 'Speaking Order' or 'Reasoned Decision' must be passed.

One another principle, which can be added, is that (D) One who hears should decide.

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(A) NO MAN SHALL BE CONDEMNED UNHEARD - AUDI ALTERAM PARTEM

The rule that no man shall be condemned unheard or the legal maxim, Audi Alteram Partem is an essential characteristic of the Principles of Natural Justice. This is the first principle of a civilized jurisprudence and Men and God accept it. It says that a party is not to suffer 'in person' or 'in purse' without an opportunity of being heard - Painter us. Liuerpool Oil Light Co. (1836) 3 A & E 433. However, it is the general principle and usually, not applied in an administrative context. The apex court in State of Orissa us. Mohd. Ilyas, (2006) 1 SCC 275 has laid down as to when opportunity of hearing need not be given. The Respondent Sarpanch in the said case alleged to have collected illegal gratification from poor beneficiaries by giving false hopes of houses. SubCollector recording the evidence of seven such beneficiaries and concluding that Sarpanch had misused his powers suspended him. Held that collector's opinion was the "prima facie" opinion and there is no question of granting an opportunity of hearing (at the stage of suspension). It is only at the stage of removal that the show cause is to be granted as is envisaged under section 115 (1) of the Orissa Gram Punchayat Act, 1964 . . All that the general principle (of Natural Justice) says is that the decision must not be arrived at j.lntil both sides are 'Heard'. However, 'Hearing' both sides, includes in it two elements: (a) Notice AND (b) Hearing. (a) Notice: The right of 'Hearing' or Audi Alteram partem includes in it is the "right to be informed". It means that before any action is taken, the affected party must be informed as to what is against him. The legal phraseology for 'informing' is 'Notice' or, to be more exact, the 'Show Cause Notice'. By Show Cause Notice, the affected party is called upon to show cause as to why no action should be taken against him. The Notice is a 'sine qua non' of the right of hearing. In Municipal Board Pushkar us. State Transport Authority, AIR 1965 SC 458 the apex Court held that any order passed without giving 'Notice' is against the principles of natural justice and is void 9b-initio. In Chookalingam us. Commissioner of Income Tax, AIR 1963 SC 1456, the apex Court had held that if the Income Tax Officer enhances the assessment of an Assessee, he (the Income Tax Officer) must send a notice to the assessee and give him an opportunity of being heard. Although the preventive detention is purely subjective, the Constitution requires the authority to furnish the grounds of detention so as to enable the Detenu to make a representation. Indeed, the 'Notice' must be clear, specific and unambiguous. The 'Time' and 'Place' of hearing must be stated in the 'Notice'. Further, it (the 'Notice') must also be reasonable. A communication (or the Notice) containing vague grounds was rejected and the Detenu was set free by the Apex Court in State of Bombay us Atmaram, AIR 1951 SC 157. The apex Court in State of J & K us Haji Wali Mohd, (1972) 2 SCC 402 had held that the 'Notice' in question before it was invalid because it suffered from 'reasonableness'. In the given case, the affected party was given only 24 hours to dismantle a structure alleged to be in dilapidated condition. In any penal or disciplinary proceedings, the person accused of any offence or misconduct should know the nature of offence or misconduct levelled against him, Punjab National Bank us. All India Bank Employees Federation, AIR 1960 SC 16.

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It should also be clear that if notice is given for one misconduct, punishment for another misconduct (for which no notice is given) cannot be imposed. As that would amount to giving 'No Notice'. (1) Annamuthado us. Official Workers (1961) 3 All E.R. 621 (2) Gouindsingh us. Subharao (1970) II Guj. L.R. 897. The object of 'Notice' is to give an opportunity to the affected party to present his case. Therefore, if the affected party is aware of the charges or allegations, a formal defect would not invalidate the 'Notice'. But if any prejudice is caused by the defect in the Notice then it (Notice) must be held that 'No Notice' was given to the affected party. (1) Bhagwan Datta us. Ram Ratanji, AIR 1960 SC 200 (2) Fazal Bhai us. Custodian General, AIR 1961 SC 1397. Even if there is no provision in the statute (about giving of notice) then also it is fundamental to give Notice with the only proviso that it (action, without giving Notice) must not affect the party adversely, Ridge us. Baldwin, (1964) AC. 40, Maneka Gandhi us Union of India, AIR 1978 SC 597. Indeed, it is a 'QUESTION OF FACT' as to whether in a given case, any prejudice is caused or not to the party against whom action is taken. (b) Hearing: The second requirement of Audi alteram partem is that an opportunity of 'being heard' before taking any adverse action must be given. It is a sine qua non OR an indispensable requisite OR a right of fair hearing. If this requirement is not fulfilled then the Order passed without giving hearing will be null and void - Municipal Board vs. S.T.Authority, AI.R. 1965 SC 458. The historic case of Ridge us. Baldwin, (1964) AC. 40 has rightly described this requirement as the magna carta of the Principles of Natural Justice. In this case, the Plaintiff, a chief constable was prosecuted for conspiracy but was acquitted. In the course of judgement, certain observations were made against the Plaintiff for his character as a Senior Police Officer. The Watch Committee on the basis of these remarks dismissed the Plaintiff. The Court of Appeal in 4:1 majority judgment held that the dismissal is illegal as it was passed without hearing the Plaintiff. The requirement of "Hearing" assimilates in it the requirements of:

I.

(1) (2) (3) (4) Oral

Representation, Written as well as Oral. The right of Cross-examination. Examining the witness, if any. The right to appear through the counselor the advocate or a person of the' choice. Hearing.

(a) Notional Distinction between Hearing and Oral Hearing. (b) What is Domestic Enquiry? (c) 'Oral Hearing' under Article 311 of the Constitution of India. (d) When Oral (Personal) Hearing can be denied?

(a) Notional Distinction between Hearing and Oral Hearing First of all, the meaning of "Hearing" must be comprehended before entering into the thickets of the 'Oral Hearing'. If a person is given a Show Cause Notice to explain as to why no action should be taken against him, he may explain it in writing. The explanation so tendered is 'Reply' and not the 'Hearing', as understood in Service Jurisprudence. The 'Hearing' (as understood in Service Jurisprudence) is a long drawn process stated as under:

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The Authority entitled to take action against anyone (i) has to give a 'Show Cause Notice' . The Authority initiating action is referred to as the 'Prosecutor' and the person against whom action is taken is referred to as the 'Delinquent'. The 'Delinquent', upon receiving the Show Cause Notice is (ii) entitled to file his Reply. The Prosecutor has (iii) an implicit right to either accept the Delinquent's Reply or reject it. If Prosecutor accepts the Reply, the matter ends thereat. But if the Prosecutor does not accept the reply then he has (iv) to prove allegations levelled against the 'Delinquent'. For this reason, the Prosecutor (v) has to appoint some one to decide as to whether the 'Delinquent' is guilty or not. Such person to decide is hereto referred to as the 'Enquiry Officer'. Undoubtedly, the Enquiry Officer is the judge in the case. (vi) The Judge and the prosecutor cannot be one and the same person. The Enquiry Officer, like the judge, (vii) calls upon the Prosecutor or his Agent to prove the allegations levelled against the 'Delinquent' inasmuch as, the Prosecutor is called upon (viii) to lead evidence, documentary as well as oral. Needless to state that (ix) documents (or the Documentary Evidence) must be proved before the Enquiry Officer. Whenever, the oral evidence is led before the Enquiry Officer, it is necessary that (x) the Delinquent is given a fair opportunity of cross-examining the witness of the Prosecutor. Thereafter, the Delinquent must have the opportunity to (xi) lead his evidence by examining his witness, if any, in rebuttal of the charge, if he so desires. If necessary, (xii) the Enquiry Office may hear the parties' oral arguments. The Delinquent will also have a right to engage an advocate or a legally qualified person or a person of his choice to represent and defend him in the inquiry before the Enquiry Officer. Finally, the (xiii) Enquiry Officer decides and submits his Finding and Report to the Disciplinary Authority or to the punishing Authority. The long drawn process of 'Hearing' comes to an end with the Findings & Report of the Enquiry Officer and immediately thereafter, the Second Stage of 'Oral Hearing' starts with (I) furnishing the Delinquent a copy of Findings & Report of the Enquiry Officer. The Delinquent is also (2) informed about the proposed punishment and called upon to explain (3) why Findings and Report of the Enquiry Officer should not be accepted and (4) why proposed punishment should not be imposed upon him. It must, however, sharply be noted that the Principles of Natural Justice come into operation twice or so to say, the Delinquent gets two opportunities of "being heard". One at the first stage, beginning with holding of full-fledged Domestic Enquiry and at the second stage when the Enquiry Findings are available and it is tentatively decided to punish him. Perhaps and in all probability, there are three reasons for the use of very similar and confusing phraseologies of (1) 'Hearing' and (2) 'Oral Hearing'. One reason is to contradistinguish the expression 'Oral Hearing' from the expression 'Hearing'. Second reason appears to be that the 'Hearing' indicates a long drawn process, beginning from Show Cause Notice to Enquiry Findings and the 'Oral Hearing' indicates a brief process beginning from serving of Enquiry Findings to Oral/Written submissions of Delinquent on Findings and Punishment. Third reason that can be attributed is that, in the 'Oral Hearing' very often the Delinquent is 'Heard' orally by the Disciplinary Authority. After Amendment, the apex Court in State of Maharashtra us. Baishankar Ava!ram Joshi & Am; (1969) 3 SCR 917 has laid down that failure to furnish a copy of the report of Inquiry Officer would result in violation of the guarantee of reasonable opportunity. Whereas in Union of India us. H.c.Goe!, (1964) 4 SCR 718, the apex Court took the view that a public servant entitled to protection of Art. 311 must get two opportunities. Atfirst opportunity, he must

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have clear notice of the charges, an opportunity to defend for which it is necessary to hold a Domestic Enquiry into the allegations. At the end, the Enquiry Officer records his findings and submits his findings with his Report to the Government. The Government thereupon applies its mind and when it decides to punish its servant, the question of second opportunity arises. In this second opportunity, the public servant is required to be given the Findings & Report of the Enquiry Officer and then called upon to explain as to why punishment shown in the second Show Cause Notice should not be inflicted on him. Then came the 42 nd Amendment whereby Article 311 (2) of the Constitution was amended as noted above. However, the apex Court firmly held that the 42 nd Amendment has not brought about any change in the matter of supply of a copy of the report. The apex Court in Union of India & Ors. us. Mohd. Ramzan Khan, 1992 I CLR 61 made it expressly clear that the Public Servant is entitled to the Findings & Report of the Inquiry Officer who holds the Public Servant guilty of all or any of the charges. Not only that but also the Public Servant is entitled to make a representation against it, if he so desires. and non-furnishing of the Enquiry Report & Findings would amount to a violation of rules of natural justice. In Union of India us. Mohd. Ramzan Khan, 19911 CLR 61, also the Hon'ble Supreme Court of India laid down that supply of a Copy of the inquiry report along with recommendations (of punishment), if any, would be within the rules of natural justice.

(d) When Oral (Personal) Hearing can be denied? The 'Oral Hearing' is not a fundamental or an absolute right of the person against whom offences or charges are imputed and proved. The right of "Oral Hearing" can be denied (1) when it is expressly prohibited or (2) when a detailed procedure is prescribed without providing for the "Oral hearing". The right of "Oral Hearing" has to be read in the statute by necessary implication unless it is expressly prohibited or when a detailed procedure is prescribed without providing for the same. If the statute does not provide "Oral Hearing" then it (statute) cannot be held to be bad in law or violating the principles of natural justice. In any case, whether 'Oral Hearing' in any given case is necessary or not depends upon the facts and circumstances of the case in consideration. II. The right of Cross-examination

The right of cross-examination is a part of 'Hearing'. As recorded above, when anyone alleges that a person has committed an offence or misconduct and intends to take action, then it is necessary that person accused of such offence/misconduct is informed of the offence or misconduct by giving him a Notice or the Show Cause Notice. Simply giving such Notice would turn to nothing unless he is 'heard' but how to hear him. As stated above, the person accusing cannot be judge and hence it will be necessary to hold a Domestic Enquiry by an independent person, the Enquiry Officer. It will be necessary for the person imputing the charges/misconduct to prove the same before the Enquiry Officer. The only mode of proving is to lead evidence of witnesses. Needless to state that the burden of proof is upon the prosecutor and hence he will lead evidence of his witnesses. The law does not accept Witness's statements in smplicitor. The person (against whom the Witness makes such statements) must be allowed to ask questions to verify the veracity of the statements. In the legal phraseology called as the Cross-Examination. The failure to give opportunity of cross-examination vitiates the entire enquiry. State of Punjab us. Dewan Chanilal, AIR 1070 SC 2086, the apex Court held that as the Delinquent was not given the

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95

opportunity to cross examine the witness who had made general remarks against him, the rules of natural justice were violated. In State of Kerala us. K.T. Shaduli, AIR 1977 SC 1627, the Assessee was not given an opportunity of cross-examination after the Returns filed by him were found to be incorrect or incomplete. The apex Court held that since the Assessee was not given an opportunity to cross-examine the witnesses, the findings of the Department were vitiated. Granting of an opportunity of cross-examinatioh is the general rule but there are always exceptions to the general rule. In some of the exceptional cases, the apex Court has held that mere denial of an opportunity of cross-examination would not render the Enquiry vitiated. In State of J & K us. Bakshi Ghulam Muhammad, AIR 1967 $C 122, the former Prime Minister of Jammu and Kashmir was not allowed to cross-examin~ th~ p-ersons who deposed against him before the Inquiry Commission. The apex Court did not held the Enquiry vitiated because the disclosure of names of informants and witnesses· fbr crossexamination would have exposed them to political and other reprisals and for that they would have preferred to remain anonymous. The apex Court in clear terms observed that the Inquiry Commission is merely a fact-finding body but that apart. In Hira Nath Mishra us. Rajendra Medical College, AIR 1973 SC 1260, the male students entered late at night quite naked in the compound of the girls' hostel. The girl students filed confidential complaints with the Principal. Thereupon, the Principal appointed an Enquiry Committee. The girl students identified the photographs of male students whose statements were recorded by the Committee but not in presence of the girl students. The male students denied the charges and stated that they had ever left their hostel. The Committee found the male students guilty and therefore they were expelled from the college. The Expulsion Order was challenged, inter-alia, on the ground that an opportunity of cross-examination was not given to them. The Supreme Court rejected the said challenge on the ground that girl students would not have ventured to make their statements in presence of the miscreants because if they did, they would have most certainly exposed themselves to retaliation and harassment thereafter.

III. Examination of Witnesses As recorded above, first of all, it is the duty and burden of proof of the Prosecutor to prove the allegations given in the Show Cause Notice and for which, the Prosecutor has to lead evidence of his witnesses. When Prosecutor leads evidence of his witnesses, the Delinquent has a right to cross-examine all these witnesses unless ofcourse, as aforesaid, facts and circumstances of the case deprive off the Delinquent of any such opportunity. But there does not end the process of 'Hearing'. A further extension is given and the Delinquent has to be afforded to rebut the evidence by leading his evidence. This right of the Delinquent to lead his evidence after the Prosecutor has closed his evidence is an independent right under the rules of Natural Justice and denial of the same would result in rendering the findings of the Enquiry Officer null and void, ab-initio. In Mumtaz Hussain Ansari us. State of u.p, AIR 1984 SC 1116 the Delinquent Officer wanted to produce material witnesses in support of his case but due to his inability to bear their travelling expenses and daily allowances, he could not lead their evidence. The apex Court held that the witnesses should have been produced at the Government expenses and not doing so amounted to violation of the Principles of Natural Justice and hence it set aside the order of removal.

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IV. The right to appear through advocate or a person of his choice

The assistance of a lawyer is not required in simple case or in the cases where no professional skill is required. As such, if assistance of lawyer is denied, the principles of natural justice are not violated, H.e. Sarin us. Union of India, AIR 1976 SC 1686, Krishna Chandra us. Union of India, AIR 1974 SC 1589, Brooke Bond India Put. Ltd. us. S. Subba Raman, 1961 I LLJ 417. But where the inquiry involves complicated questions of facts and law or where the person skilled in law conducts the inquiry or presents the case, it is necessary that the Delinquent is given a similar opportunity of allowing him to be defended by a person skilled in law. In C.L.Subramanian us. Controller of Customs, AIR 1972 SC 2178, the Police Prosecutor was appointed to present the case in the Domestic Enquiry against the Government Servant under rule 15 of the Central Services (Classification, Control and Appeal) Rules, 1967. A Government Servant under the said Rules cannot engage a legal practitioner unless the person nominated by the disciplinary authority was a legal practitioner or unless the disciplinary authority "having regard to the circumstances of the case" so permits. The disciplinary authority rejected the application of the Government Servant to engage on the ground that Public Prosecutor was not a legal practitioner. The Supreme Court held that denial of such permission was violation of PrinCiples of Natural Justiee. In Board of Trustees of the Port of Bombay us. Dilikumar Raghauendranath Nadkarni, AIR 1983 SC 109, an Enquiry was ordered against an employee of the Bombay Port Trust. But before the domestic enquiry could be started, the employee made an application for seeking permission to engage a legal practitioner for his defence. The said request was rejected but the BPT simultaneously appointed its legal advisers as Presenting cum Prosecuting Officers. While the domestic inquiry was in progress, the Bombay Port Trust Employees Regulations, 1976 came into force. Regulation 12 (8), inter-alia, provided that a delinquent "may not engage a legal practitioner for the purpose unless the said Presiding Officer appointed by the disciplinary authority is a legal practitioner, or the disciplinary authority having regard to the circumstances of the case, so permits". However, even after enforcement of this regulation, neither the Enquiry Officer nor the Chairman of the BPT reviewed their earlier decision. The employee was dismissed from service on the basis of the enquiry report. The Supreme Court on this factual matrix held that Principles of Natural Justice were violated by not allowing the Delinquent to defend himself by a legal practitioner. The Hon'ble Supreme Court then proceeded to observe that in the case before it, the respondent was pitted against two legally trained minds at the cost of the Port of Trust, while the respondent was asked to fend for himself in person or have assistance of another employee who was not shown to be a legally trained person. Therefore, apart from general propositions, in the facts of the case, this enquiry would be a one-sided enquiry weighed against the delinquent. As such, it would result in violation of one of the essential principles of natural justice, namely, that a person against whom enquiry is held must be afforded a reasonable opportunity to defend himself. The apex Court then went further to observe that the "procedure prescribed by law" within the meaning of Article 21 of the Constitution of India was also not followed. The expression "life" in Art. 21 do not merely connote animal existence or a continued drudgery through life but has a much wider meaning. Where, therefore, the outcome of a departmental enquiry is likely to adversely affect reputation or livelihood of a person, some of the finer graces of human civilization which make life worth living would be jeopardized and the same can be put in jeopardy only by law which inheres (occupies) fair procedures. This case was followed in the subsequent case of Bhagat Ram us State of H.P., AIR 1983 SC 454.

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(B) NO MAN SHOULD BE A JUDGE IN HIS OWN CAUSE - NEMO DEBET ESSE JUDEX IN PROPRIE CAUSA

(a) General. (b) Meaning of 'Bias'. (c) Types of 'Bias'. (i) Pecuniary (ii) Personal (iii) Official. (a) General The fundamental 'principle of natural justice' of the common law that no man should be a judge in his own cause is based on the Legal maxim 'Nemo Debet Esse Judex in Proprie Causa'. This principle was first laid down by Lord Coke in (Dr.) Bonham's case {(1610) 8 Co Rep 113b: 77 ER 646}. Dr. Bonham was doctor of medicine. However, it was necessary to obtain a license from the College of Physicians and if anyone started practice without the license, one was liable to be punished with fine and imprisonment. From the fine, half of it was to go to the Board of the College of Physicians. Since Dr. Bonham had not obtained the said necessary license, he was summoned before the Board of the College of Physicians and he was fined and imprisoned for not obtaining the license. The hearing came up before Lord Coke for the action for false imprisonment who held that the Board had no power to fine Dr. Bonham because the Board was the judge in its own cause. The principle laid down by Lord Coke was developed further to strengthen the public confidence in the administration of justice in consonance with the principle that '~ustice should not only be done, but manifestly and undoubtedly be seen to be done". The justice can never be seen to have been done if a man acts as a judge in his own cause or he himself is interested in its outcome. It is said that the "judge, like Caesar's wife should be above suspicion. Necessarily, therefore, it means that a judge should have no direct or indirect, pecuniary or otherwise interest in the subject matter. It, therefore, follows that a judge should be impartial and neutral and must be free from bias. If the judge is bias. in favour or against either party, he is disqualified to act as a judge. In R. us. Suffo/~ Justices, (1852) 18 QB 416, R us. Rand, (1866) 1 KB 230, Sarjeant us. Dale, (1877) 2 QB558, R us. Parant, (1887) 20 QB 58 and Lesson us. General Council of Medical Education, (1889) 43 Ch. D. 366, the principle laid down was that everything which might cause suspicion and distrust in the tribunal must be done away so as to promote the feeling of confidence in the administration of justice. In R. us. Sussex Justices, (1924) 1 KB 256 it was held that nothing is to be done which creates even a suspicion that there has been an improper interference with the course of justice. (b) Meaning of 'Bias'. The term 'bias' means anything that tends to cause a person to decide otherwise than on evidence. When a person pre-determines the issues, he then decides the matter otherwise than on evidence. The Hon'ble Supreme Court of India in Secretary to Gout. Transport Deptt. us. Munuswamy, AIR 1988 SC 2232 spelt out the meaning that "a predisposition to decide for or against one party without proper regard to the true merits of the dispute is bias".

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Bias generally may be defined as partiality or preference. It is not every kind of bias, in law, vitiates the act. If a preference is rational and unaccompanied by consideration of personal interest, pecuniary or otherwise it could not vitiate a decision. G. N. Nayak vs. Goa University, (2002) 2 SCC 712. Bias negates fairness and reasonableness and leads to arbitration and malafides. State of Punjab us. V. K. Khanna, AIR 2001 SC 343. (c) Types of 'Bias'

The 'bias' can be of three types, as under: (i) (ii) (iii)

Pecuniary Personal Official.

(i) Pecuniary Bias.

An affected person is entitled to be heard by a judge having no pecuniary interest, means the adjudicator must have no .financial Interest in the matter under dispute. It is generally accepted that pecuniary interest, however small, must disqualify a person from deciding the matter. The one of the earliest decisions is that of Dr. Bonham {(161O) 8 Co. Rep. 113b: 77 ER 646}. Dr. Bonham was a doctor of medicine and started his practice without taking a License contrary to the Rules of the Board of the College of Physicians. The said Rules of the Board of College of Physicians provided for punishment with fine and imprisonment if one started practice without taking license. The half of the fine was to go to the Board of the College of Physicians. Since Dr. Bonham had not obtained the said necessary license, he was summoned before the Board of the College of Physicians and he was fined and imprisoned for not obtaining License. The hearing for the action for false imprisonment came up before Lord Coke who held that the Board of the College of Physicians had the pecuniary bias. In Jeejeebhoy us. Asst. Collector, AIR 1965 SC 1096, the objection was taken that the Chief Justice, who was member of the Bench, was also a member of the co-operative society for which the disputed land had been acquired. The Bench was reconstituted, as otherwise it would have been a case of (real apprehended) pecuniary bias. In J. Mohapatrra & Co. us. State of Orissa, AIR 1984 SC 1572 some of the members of the committee for selecting books for educational institutions were themselves authors, whose books were also to be considered for selection. The apex Court held that the possibility of pecuniary bias couldn't be ruled out. Pecuniary Bias may be direct or indirect

The financial interest of the judge may be direct or indirect. In case, the adjudicator has the direct pecuniary interest in the outcome of the case, it is the sacred duty to apply very strictly the legal maxim "nobody may be a judge in his own cause". The decisions made in the cases where the judges have the direct financial interest are voidable because bias is conclusively presumed. On the other hand, it is possible that there is no direct financial interest in the outcome of the case. However, the surrounding circumstances give rise to a reasonable suspicion that justice is not being done because the adjudicator has the interest but it falls short of a direct pecuniary

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interest. The most obvious case arises when there is real or apparent desire to further a particular policy or there is family relationship or nepotism. It may in that case result in prejudging the issue and deciding the matter in accordance with preconceived notions. Such cases, no doubt, are treated as falling in the category of 'pecuniary bias', really speaking, they fall in the category of 'personal bias' or, more exactly in the category of 'ultra uires'. But without going into the categorization, it must be borne in mind that mere association or friendship with a party to proceedings in which the judge is adjudicating, will not normally be held to be sufficient to amount to bias. The circumstantes must show that bias was actually and factually present (R. us. Barnsley Licensing Justices, (1959) 2 All E.R. 635). In cases of family relationship, a decision may be avoided because, possibly, irrelevant considerations may be taken into consideration. In R. us. Byles (1912) 77 J.P. 40, it was held that the 'bias' rule may be waived by the affected person but then he must know all the facts. Indeed, consent can never confer any power to act outside the jurisdiction but when a person, knowingly and willingly does not take any objection, he cannot later on be permitted to complain for not availing of his said right. (Ii) Personal Bias

As aforesaid, it is very difficult to draw a fine thin line of distinction between 'pecuniary bias' and 'personal bias' and very often the two expressions are freely interchanged for the use. However, when the judge has a relative or a friend or a business-associate or that he has personal grudge, enmity, grievances or professional rivalry it is a case of 'personal bias'. In Cottle us. Cottle, (1939) 2 All E.R. 535, the wife had instituted a matrimonial proceedings against her husband. While the proceedings were pending, the wife told her husband that the Chairman of the Bench would decide in her favour because he was her family friend. The Divisional Court quashed and set aside the order. In Meenglass Tea Estate, AIR 1963 SC 1719, the allegation was that the workman had beaten the manager. The manager himself conducted the inquiry. The apex Court held that the inquiry was vitiated. In Baidyanath Mahaptra us. State of Orissa, AIR 1989 SC 2218, the Officer who had taken an administrative decision to retire an employee prematurely had confirmed the order of premature retirement sitting as a Tribunal as he was by then elevated to the said position. The apex Court held the said order of the Tribunal vitiated. (Iii) Official Bias

The rule that a man shall not be a judge in his owns case is difficult to be applied in cases where the adjudicator is a public servant and as such, he has to safeguard the public interest. In such cases, a very delicate issue arises as to whether the Public Servant would objectively and independently decide the matter and that he would not be influenced by his duty to safeguard the public interest. Thus, the question of official bias or departmental bias arises in the departmental inquires by the Public Servants. In cases in which the Minister's Department is interested to decide the issue in one way rather than the other way, the Minister, if he decides, would decide in that way onlv and the Official Bias creeps in. Therefore, it is essential that the Parliament while assigning the Judicial functions to Ministers, it keeps in mind the maxim that no man is to be judge in his interest Alternatively, the Parliament should provide that not the Minister but the Tribunal shoul< I decide the case. Indeed, it is a very weak type of objection because it is well settled that a mere general interest in the general object to be pursued would

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not disqualify a judge from deciding the matter. There must be some direct connection with the litigation. The departmental policy cannot be regarded as a disqualifying bias. (C) SPEAKING ORDER OR REASONED ORDER MUST BE PASSED

Order, necessarily, has to be in writing and if one reads it, one must get the impression that good reasons exist in passing the order, one eay or the other. It is referred to as the Speaking or Reasoned Order. The propriety of passing the 'speaking' or 'reasoned' is that the party against whom the order is passed must know the reasons as to why the authority deciding against him has decided against him so that the aggrieved party can challenge it in the available forum if those reasons are illogical or extraneous or do not support the conclusion. The judicial review is possible only if the Reviewing Court has, before it, the reason, of the subordinate authority in passing the order, one way or the other. This is one of the cardinal principles of natural justice inasmuch as it provides safeguard against the arbitrary exercise of power by the authority vested with powers to decide. Reasons are the links between the materials on which conclusions can be drawn and actually the reasons are drawn. Giving Reasons (1) will help the aggrieved party to impugn the order, if necessary, (2) will act as deterrent for the authority passing the order as it is subjected to scrutiny and (3) the party against whom order is passed is satisfied that the reasons advanced by in his support were taken care of. It is true that sometimes, the Reviewing Courts also do not pass the reasoned orders. But surely, when the reviewing court confirms the reasoning of the authority below it, it need not give separate reasoning. Where the statute requires the reasons in writing, it is the statutory duty of the executives deciding the Lis-Dispute and failure to give reason will tantamount to violation of statutory duty which, in its turn, will invalidate the order passed by the executive. (D) ONE WHO HEARS MUST DECIDE THE CASE It is not acceptable (because the principle of natural justice demands) that one hears the case and another one decides if, and therefore, it is not permissible for one person to hear and another to decide. In Gullapalli Nageshwara Rao us. AP State Road Transport Corporation, AIR 1959 SC 1376 the apex Court held that the hearing by one person and decision by another person is against the rule of fair hearing.

4. EXTENT OF APPLICABILITY OF NATURAL JUSTICE The rules of 'Natural Justice' vary with the varying 'constitution of statutory bodies' and the rules prescribed by the legislature. Whether, in a particular case, the rules of 'Natural Justice' have been contravened or not must be judged in the light of the relevant Act and not in the light of any preconceived notion of what they may be-New Prakash Transport Co. Ltd. us. New Suwarna Transport Co. Ltd. AIR 1957 SC 232. In Board of Mining Examination us. Ramjee, AIR 1977 SC 965, the apex Court held that mere technical flaws should not come in the way of decision which is in public interest. The apex Court observed: "Natural Justice is no unruly horse, no lurking land mine, nor a judicial cure of all. If fairness is shown by the decision-maker to the man proceeded against, the form, features and the fundamentals of such essential processual propriety being condition by justice be complained of. Unnatural expansion of natural justice without reference to the administrative realities and other factors of a given case can be exasperating. We can neither be finical nor fanatical but should be flexible, yet firm in this jurisdiction".

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5. AGAINST WHOM PRINCIPLES OF NATURAL JUSTICE CAN BE ENFORCED It is settled law that the 'Principles of Natural Justice' are binding on all courts - judicial bodies and quasi-judicial authorities. Earlier the view was that 'Principles of Natural Justice' are inapplicable to administrative orders but later on it came to be accepted that the 'Principles of Natural Justice' are applicable to the administrative orders also. In the case of State of Orissa, AIR 1967 SC 1269 it was laid down that even the administrative order, which involves civil consequences, must be made consistent with the 'Principles of Natural Justice'. However, in the case of State Board of Secondary and Higher Secondary Education us. Paritosh, 1984 SC 1543, it was laid down that the 'Principles of Natural Justice' cannot be carried to such a length that it becomes necessary to allow the candidates to participate in the valuation of answer books. The test of reasonableness is not applied in vacuum but in the context of life's realities.

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Expert's comments were obtained by the adjudicating authority. But not given to the assessee. If the authority has not relied upon such comments, the non-communication is not violative of principles of natural justice - Nobles Synthetics Ltd. us. CCC, (2005) 3 SCC 674 Post-decisional hearing is not a substitute for pre-decisional hearing. But in absence of prejudice, pre-decisional deficiency can be compensated by post decisional hearing. So where the absence of opportunity of post decisional hearing was granted by appellant to the employee, though there was no such requirement under the regulation and no prejudice has been shown, held there as no violation of principles of natural justice - Canara Bank us. Debusis Das, AIR 2003 SC 2041 Notice should be clear and precise. If the notice given is not adequate, the order passed becomes wholly violated - Canara Bank us. Debusis Das, AIR 2003 SC 2041 The basic principles of natural justice are to be moulded to suit the peculiar situation that is flexibility. Some of the relevant factors of moulding the nature and scope for excluding the principles of natural justice are (1) the nature of subject matter, (2) exceptional situation, such exceptionality may be spelt out by (i) the need to take urgent action for safeguarding public health or safety or public interest (ii) by regular of remedies in discretion, (iii) the absence of legitimate expectation or (iv) doctrine of pleasure such as the power to dismiss an employee at pleasure and (v) express legislation - State of Maharashtra us. Jalgaon Mun. Council, AIR 2003 SC 1659 If statute confers right of hearing, Court cannot deny it on the ground of practical inconveniences - WB Electricity Regulatory Commissions us. CESC Ltd. (2002) 8 SCC 15 In case of legislating act of legislation no question of application of Principles of Natural Justice arise. However, in case of subordinate legislation, the legislature may provide for observance of principles of natural justice - State of Punjab, AIR 2002 SC 533 Rules of fairness demanded appropriate redressal and compensation to parties who have suffered loss for mistaken negligent representation of public authority. Hira Tikko us. Union of India, AIR 2004 SC 3649

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Issuance of vague notice based on no material is vitiated by non application of mind. Food Corporation of India vs. State of Punjab, AIR 2001 SC 250 The obligation to act fairly was evolved to ensure the Rule of Law and to prevent failure of justice. This doctrine is complementary to the principles of natural justice which the quasi-judicial authorities are bound to be observed - Haryana Financial Corpn. vs. Jagdambe Oil Mills, AIR 2002 SC 834 Government Order/Memorandum not communicated to the concerned person - Held - has no legal effect or authority. State of WB. vs. MR. Mondal, (2001) 8 SCC 443 In the letter of the Leader of INC in the Bihar Legislative Council, it was stated that Petitioner had contested Parliamentary Election as an independent candidate. The Chairman's decision that the said Member had given up his membership of INC and thereby incurred disqualification cannot be held to be in violation of Principles of Natural Justice on the ground that the copy of the letter was not given to Petitioner. M.P. Singh vs. Chairman, Bihar Legislative Assembly, (2001) 8 SCC 747 Correspondence between government and chairman of the non Ludhiana Improvement Trust could not be treated as decision taken by the appellant. Chairman, Ludhiana Improvement Trust vs. Karnaljit sing, (2004) 9 SCC 421 Statutory authority cannot supplement the 'reason' for having acted in terms stated later-on by way of affidavit. Nandkishor Ganesh Joshi vs. Commr. M.C.Kalyan & Dombivali, (2004) 11 SCC 417 The discretionary jurisdiction undoubtedly is of wide amplitUde because the expression 'as it deems fit' has been used. But in view of civil consequences which may ensue, the same must be exercised fairly and bonafide, Clariant International Ltd. vs. SEBI, AIR 2004 SC 4236 Word 'Discretion' in its ordinary meaning signifies unrestricted exercise of choice or will, freedom to act according to one's own judgment, unrestrained exercise of will and the liberty or power of acting without control other than one's own judgment. But when applied to public function, it means, a power or right conferred upon them by law, of acting officially in certain circumstances, according to the dictates of their own judgment and conscience. Union of India vs. Kuldeepsing, AIR 2004 SC 82

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CHAPTER-8

JUDICIARY - II (Remedies, Tribunals and Inquiry Commissions) SYNOPSIS

1. Introduction (A) General (8) Common Law Remedies (i) Common Law Remedies & Common Law Courts (ii) Chancery Courts. (iii) The Royal Prerogatives- Origin of Writs (C) Equitable Remedies (D) Statutory Remedies (E) Alternative Remedies (F) Parliamentary Remedies AND (G) Self Help 2. Origin of Courts 3. Origin of Tribunals 4. Definition of Tribunal 5. New Hybrid of Tribunals 6. Characteristics of Tribunal 7. Reasons for Growth of Tribunals 8. Reasons for the Development of Tribunals 9. Tribunals under the Constitution 10. Administrative Tribunals and Principle of Natural Justice 11. The Rules of Evidence and Rules of Procedure if Applicable 12. Recording of Reasons 13. Finality of Decisions (103)

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14. Tribunals and Executives as Quasi-Judicial Authorities 15. Advantages, Disadvantages and Defects of Tribunals (i) Advantages (ii) Disadvantage (iii) Defects 16. General Principles of Establishing Tribunals (i) Organization of Tribunals (ii) Appointment of Members (iii) Venue (iv) Procedure (a) Before the Hearing (i) Generally (ii) Searches and Seizures (b) At the Hearing (c) Effect of some of the Legal Principles (i) Rule of Self-incrimination (a) The Person should be Accused (b) Compulsion to be a Witness (c) Against Himself (ii) Rule of Judicial Review (iii) Doctrine of Res-judicta (d) Rules of Law of Evidence (v) Appeals (vi) Contempt (vii) Judicial Review 17. Some of the Tribunals in India (i) Copy Right Boards (ii) Court of Survey (iii) Employees Insurance Court (iv) Income Tax Appellate Tribunal (v) Industrial Tribunal (vi) Railway Rates Tribunal (vii) Central Administrative Tribunal 18. Classification of Tribunals and Inquiries 19. Importance of Inquires 20. Commissions of Inquires Act, 1952 (i) Composition

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(ii) When Appointment of Commission can be quashed (iii) What is Public Importance? (iv) Whether Parliament can Enact Law to Appoint Commission only to Ascertain Facts Enactment of Legislation? (v) When Obligation to Appoint Commission arises? (vi) Whether Central Government can Appoint Commission for Affairs of State? (a) General (b) Section 3, if ultra-vires (c) "If it is opinion", what amounts to (d) Powers and Procedure

1. INTRODUCTION (A) General (B) Common Law Remedies (i) Common Law & Common Law Courts (ii) Chancery Courts. (iii) The Royal Prerogatives- Origin of Writs. (C) Equitable Remedies. (D) Statutory Remedies' (E) Alternative Remedies (F) Parliamentary Remedies AND (G) Self Help. (A) GENERAL Since the dawn of Civilization, man has always craved for justice and indeed it is insatiable. In 1215, in Magna Carta, it was said, "No free man shall be taken or imprisoned or dissatisfied or exiled or in any way destroyed, nor will we go or send for him except under a lawful judgment of his peers and by the law of the land". In other words, a right to personal freedom means: Freedom from arrest, Freedom to hold public meetings, Freedom of speech, and so on was guaranteed. Such a right has always been guaranteed; in many countries, under a Written Constitution and, therefore, anyone having a complaint of its infringement, had the remedy in the Court under the Constitution. But in a country, like England, where there is no Written Constitution, the Courts very zealously protected the Common Man's 'right' and 'remedies'. And, in no case, it could be said that a Common Man had no remedy whatsoever when there was no Written Constitution because, in that case, it would be contrary to fundamental concept - in English and Indian legal-concept, namely, 'ubi jus ibi remedium' (wherever there is a right there is a remedy).

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The next question falls for consideration is, what kind of 'remedies' were available if the right of freedom guaranteed in the Constitution (or otherwise) was infringed, breached or violated. The following remedies, inter-alia, can be enumerated. • • • • •

Common Law Remedies Equitable Remedies Statutory Remedies Parliamentary Remedies AND Self-Help.

(B) COMMON LAW REMDIES (i) (ii) (iii)

(i)

(ii)

Common Law Remedies & Common Law Courts Chancery Courts The Royal Prerogatives - Origin of Writs. Common Law Remedies & Common Law Courts: The Roman Legion (Army Military) was recalled from Britain in or about 410 A. D. After withdrawal of Romans. Collection of Laws (Dooms) was made (by Britain) in which only the novel and uncertain portion of law was recorded but the normal and undoubted rules of customary law were left unwritten. The left out, unwritten Law is the Common Law (undoubtedly of England). The Common Law was too very well-known to elders to require any formal enunciation in writing. Nevertheless, the common men did have the remedy for the breach of Unwritten Law in the Ordinary Court of Law. Thus in England, all remedies were within the domain of the Ordinary Court of Law or the Common Law Court. As such, the Common Law Courts may be asked to review the acts of administrative agency by the ordinary process of litigation. Thus, the Common Law Courts could grant relief to common men against the Crown. the Statutory Corporation and the Local Authority. Indeed, it can also be said that the Crown, the Statutory Corporation and the Local Authority may sue and may be sued, for damages in Tort or for breach of contract or quasi-contract in accordance with ordinary common law principles, subject only to a few exceptions. The Court would grant damages where Public Officer caused any harm knowing that his action was in abuse of his office. Undoubtedly, as was accepted that 'King Can Do No Wrong', no Criminal Proceedings could be instituted against the Crown but a Statutory Corporation or a Local Body could be convicted of a criminal offence if facts justify it. Chancery Courts: In Britain, if a "Subject" found no remedy in Common Law, he would complain to King, as the fountainhead of justice. He is the fountainhead of justice in the sense that justice is connected through him. He is not the 'Spring' from which the justice originates. But he is the fountain through whom and through whose several channels of the Courts, justice is conducted. Gradually, the number of Petitions of "Subject" increased so enormously that the King himself could not personally attend to it and he was obliged to appoint a Chancellor or Chancery (a Domestic Chaplain who attended to the Secretarial work of the King). In this way, a ministerial department began to impart justice to helpless and distressed persons who could seek justice from nowhere and known as the Court

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of Chancery or the Court of Equity. But the extraordinary jurisdiction of Chancery Court was not linked with the 'Common Law Courts' and as such, quite often the jurisdiction of the two forums (Chancery Courts and Common Law Courts) conflicted very sharply with each other. But it was understood that the Chancery Court would exercise jurisdiction only when the Common Law Courts would not have the jurisdiction. With the further advent of time, the 'Chancery Court' became the Court of Supplementing the Common Law Courts. The Royal Prerogatives - Origin of Writs : It was the Crown's prerogative to know, at all times, everything about the kingdom. Thus, the King wishing to be informed of the wrong-doing would issue a royal prerogative (the Writ whereby cause of action begins) calling for the records. The prerogatives or the Writs were always initially connected with the rights of the crown. The prerogative or the Writs were from the earliest time issued by the Queen's Bench Division in which Sovereign was always present. In England, the prerogative or the Writs played a very important role in upholding the rights and liberties of subjects providing effective safeguards against arbitrary exercise of power by public authorities. The number of writs available was very limited and where there was no writ, there was no "right" and, therefore, every Plaintiff had to bring his 'Cause of Action' within the recognized form of Writ.

(C) EQUITABLE REMEDIES

The Equitable Remedies are in the form of an INJUNCTION. An injunction is (i) an ORDER of the Court (ii) addressed to a Party to proceedings (iii) before the Court granting the injunction. The Order of injunction is a discretionary remedy it can be obtained against administrative agency but NOT against the Crown because it was an accepted norm then that 'Crown Can Do No Wrong'. The Order of injunction could be obtained on the grounds:(1) What the administrative agency proposes to do is or would be ultra-vires. (2) The person seeking the Order of Injunction has the 'sufficient interest'. (3) The person seeking the Order of Injunction is aggrieved by the proposed action of the administrative agency. (4) There is no alternative remedy available. The remedy of Injunction is not often used because of the availability of the Writ of Certiorari but (only) if it is not alternative remedy. (D) STATUTORY REMEDIES

As noted above, an aggrieved person, in England, can approach the Common Law Courts where the Law is too very well known and not written down. Where Common Law Courts could not redress the grievance, the common man could turn to the fountainhead of justice- the Chancery Court. And where that also failed, surely, he could go for a Writ, an especially carved out remedy against arbitrary exercise of power by public authorities. In India, there are no Common Law Courts and so also no Chancery Court but nonetheless, a citizen in India can get the Writ from the High Court or the Supreme Court. In India the High Courts and the Supreme Court are vested with the Writ Jurisdiction. Apart from these remedies in England and the Writ Jurisdictions of the High Courts and Supreme Court in India, there is yet another remedy - not only in England and India but also in any and every country. It is based on legal

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philosophy that when a 'right' is created by any Statue, the Statue itself must provide a remedy for violation of such rights. It may be a form of DELEGATED LEGISLATION in as much as the Executive may form, formulate or hear the grievances. Such a statutory remedy may be in the form of (i) arbitration, (ii) references and (iii) appeals to Ministers, Tribunals, Magistrates, Courts and High Courts. The pqrty seeking remedy under a statute indeed must bring his case in the fold of the statutes. He also must be a person who is entitled to pursue the remedy provided in the given statute. .

The ordinary remedy must be exhausted first is the rule of prudence rather than of the rule of law. Nevertheless, the rule of exhaustion of ordinary remedies is not an absolute rule and if there are justifying grounds, the Courts, the rule can be ~ide-tracked. But then it must be shown that the alternative remedy is burdensome, less effective, not sufficient and not efficacious. In State of U. P. us. Mohd. Nooh, AIR 1958 SC 86 it was held that rule of alternative remedy is a I ule of 'policy' 'Convenience' and 'Discretion' rather than a rule of law. ,E) ALTERNATIVE REMEDIES \Vhen a legal 'right" is breached, infringed or violated, there may be an 'ordinary remedy' under Common Lc:\w (in England) or general law (in India and elsewhere) or under a Statute which created the ·right'. The 'rule of prudence' is that one must first go such an 'ordinary remedy' rather than jumping on to an extraordinary remedy. And only when no ordinary remedy is available, one may go for an extraordinary remedy. So to say, an extraordinary remedy must be sparingly used. It may thus be clearly noted that the 'ordinary remedy' is the alternative remedy with reference to 'extraordinary remedy'. It is the same thing to say "availing of ordinary" remedy as the "exhaustion of alternative remedy". What constitutes an alternative remedy will depend upon facts of each case. If an employee of Government Undertaking is dismissed, and if that employee is a 'Workman' under the Industrial Disputes Act, 1947, the remedy available to him under Industrial Disputes Act, 1947 is the 'alternative remedy' with reference to remedy available to him under Article 226 of the Constitution of India as Government Undertaking is the 'State' under Article 12 of the Constitution of India and therefore a Writ is maintainable against the Government Undertaking. The rule of (1) "availing of ordinary" or "exhaustion of alternative remedy is the rule of prudence rather than the rule of law and for that reason; the 'alternative remedy' is no bar for moving the extraordinary remedy. The rule of exhaustion of alternative remedy is thus not an absolute bar in invoking an extraordinary remedy but for that there must exist the justifying grounds. In Himmatlal us. State of M.P., 1954 SCR 1122, the Hon'ble Supreme Court of India had held that availability of an alternative remedy is no bar to .obtain a relief under Article 32 when fundamental rights are breached, infringed or violated. (F) PARLIAMENTARY REMEDIES 1 • Where Parliamentarian form of government is in vogue, the Parliament has the effective control over the Executives. Necessarily, therefore the natural remedy against the excesses of Executives would lie with the Parliamentarians. As such, a citizen can approach his Parliamentarian if he is aggrieved by the wrong done by any Executive and seek remedy through his Parliamentarian. When a citizen approaches the Parliamentarian, the Parliamentarian, in his turn, may (1) take up the matter with the concerned Minister or (2) raise the issue in the House of Parliament by raising the question or by moving a motion for the adjournment of the House

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or (3) if the matter is of sufficient public interest, press for setting up of a Special Court of Inquiry to investigate in the matter. Though it appears to be so simple but it is always difficult to be so simple inasmuch as Parliamentarian Procedure is not free from defects and though apparently an effective remedy in theory, in practice, it is no remedy. The Parliamentary Remedy, FIRSTLY, is more useful for public grievances or the grievances of larger interest than the grievances of individual nature because (possibly) the political consideration may well affect the issue to such an extent that the personal element in the original complaint is totally lost. SECONDLY, the parliamentary action may be of uncertain effect because the initiative of perusing the remedy is not in the hands of the aggrieved person but it reigns in the hands of the Parliamentarian. THIRDLY, the concerned Minister may not accept the responsibility and as a consequence, no debate may be allowed or no motion may be permitted to be moved in the House. FOURTHLY, the Parliamentarian accepting to raise the debate must be competent to win over his debate, else it is lost not on merits but on incompetence of the obliging Parliamentarian. FIFTHLY, the generous Parliamentarian taking up the cause may be vociferous if he belongs to the Opposition Party but not if belongs to the Ruling Party. (G) SELF-HELP The last armor in the hands of aggrieved citizen to fight against the excesses and wrong done by the Executive is the self-help. Indeed it is in addition to the judicial-help or moving the appropriate forum established by Law for the purpose. A citizen agJrieved by any administrative action is free to sit back and when an action is taken up by the administration for the alleged breach of any law, bye-law or regulation, he can take up the defence that the regulation was ultra-vires or has not been made in the due procedure or form. The citizen is entitled to question the legality, validity and propriety of the action of the administration. In Nawab Khan vs. State of Gujarat, AIR 1974 SC 1471, an Externment Order was passed. However, the Petitioner in contravention of the prohibitory order not to enter the specified area, re-entered the forbidden area. Therefore, he was prosecuted for the same. He was found guilty by the High Court but the apex Court held that as the Externment order was illegal and unconstitutional, it was of no effect and the Petitioner was never guilty of flouting 'an order which never legally existed'. In Kisho Ram vs. Delhi Administration. AIR 1974 SC 1158. the Section Inspector went to the house of the appellant to seize the appellant's buffalo as he was in arrears of milk tax. The appellant struck the nose of that inspector causing fracture for which the appellant was prosecuted. The appellant took up the defence that the inspector had entered his house without notice required under the law. The apex Court did not accept this contention (of self-help) and upheld his conviction. Whereas in Stroud vs. Bradbury, (1952) 2 All E.R. 76, the Court held that the appellant had the right to obstruct the entry as the Sanitary Inspector who was seeking to enter without notice contrary to the provisions of the enactment. Instead of criticizing the apex court's ruling in Kisho Ram's case, it may well be distinguished on facts. In Bradbury's case, the appellant had only obstructed without causing injury whereas in the case before the apex Court, the Appellant not only obstructed the entry but also had assaulted the Inspector, which he could not have done in law.

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2. ORIGIN OF COURTS We have recorded earlier that when a dispute (Lis) arises, it is not necessary that parties should come to blows. A million-dollar question arises is that how a dispute arises at all? For a dispute to arise there must be a "right" in favour of one, created by law, custom or otherwise. When such a 'right' is asseTted or opposed, a dispute arises, which needs to be settled peacefully, amicably, constitutionally and certainly not by resorting to blows. As is said, ubi jus ibi remedium -when there is a 'right' there is a remedy -and that remedy is in the Ordinary Civil Court.

3. ORIGIN OF TRIBUNALS Historically, it was the Crown's prerogative to establish the Court of Law and the Concept of Tribunal is of recent origin. As such, in the English Law, there is no clear cut demarcation between the Law Court and the Tribunals. The ISSUES arising out of multifarious activities of the Sovereign State are not purely legal issues. Therefore, it is not possible for the ordinary traditional courts to deal with these issues. For example, disputes between workers and management must be settled as early as possible. It is not only in the interest of workers and management but also in the interest of society at large that these disputes between workers and management are settled. Yet it is not possible for the ordinary courts of law to decide these disputes expeditiously, as it has to function with certain restraints, constraints and limitations. All the same it is necessary that such disputes (lis) should not be determined in arbitrary manner and hence such work is given over to the Tribunals. The bodies thus set up for performing the adjudicatory function or for deciding the issues arising out of multifarious activities of the Sovereign State are called as the Administrative Tribunals or simply the Tribunals.

4. THE DEFINITION OF TRIBUNAL The precise and succinct definition of Tribunal is not possible. Although the Constitution of India provides for the establishment of Tribunals, nevertheless, it also does not define the term. The term in Dictionary is defined as 'the seat of the Court'. The dictionary meaning, however, cannot be accepted because the Tribunals, as aforesaid, are not the 'the seat of the Court' inasmuch as the Tribunals are the Adjudicating Authorities, other than the Ordinary Courts of Law. The Apex Court in Durga Shankar Mehta vs. Raghuraj Singh, AIR 1954 SC 520 has defined the term Tribunal. According to this definition, the Tribunal as contemplated under Article 136 of the Constitution of India does not mean the same thing as 'Court' but it includes within its ambit, all adjudicating bodies provided they are constituted by the State and are invested with judicial powers as distinguished from administrative or executive powers. The apex Court also dealt with the meaning of the term in Bharat Bank Ltd. vs. Employees, AIR 1950 SC 188. It observed that though tribunals are clad in many or the trappings of a Court and though they exercise Quasi-Judicial functions they are not full fledged Courts. The Tribunals exercise judicial powers as distinguished from the administrative functions. When it is not possible to define, it is best to explain. The Tribunal can be explained thus:(1)

Court is a part of traditional judicial system and deals with Crown's Justice while Tribunal is a creature of Statute, invested with judicial powers - a hybrid function. Primarily and essentially it is a part of Executive Branch.

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(2) Tenure, terms and conditions of judges are independent of executives of the State. But those of the Members of Tribunals are entirely in the hands of Executives of the State. (3) A Lawyer is the judge of the Court. It is not necessarily the advocate in the case of Tribunal. (4) Court of Law is bound by rules of Evidence and Procedure but that is not so in the case of Tribunal.

5. NEW HYBRID OF TRIBUNALS The issues arising out of multifarious activities of the Sovereign State are not purely legal ISSUES. Therefore, it is not possible for the ordinary traditional courts to deal with these issues. For example, disputes between workers and management must be settled as early as possible. It is not only in the interest of workers and management but also in the interest of society at large that these disputes between workers and management are settled. Yet it is not possible for the ordinary courts of law to decide these disputes expeditiously, as it has to function with certain constraints, restraints and limitations. All the same it is neces:,ary that such disputes (lis) should not be determined in arbitrary manner. As such, a new hybrid of Tribunals have now come up which decide disputes between citizen and citizen ALSO. It may well be noted that originally, the Tribunals came in existence to decide the dispute between a citizen and the Administration. But the new hybrid of Tribunals decides the disputes not only between a citizen and the Administration but also the disputes between two citizens. Thus, not only the traditional Courts have lost (to the Tribunals) their monopoly of judicial powers but the Tribunals also have lost (to their new hybrid of Tribunals) their monopoly to dispute between the citizen and the Administration. This new trend indeed owes its origin to continuing extension of governmental responsibility for the general well-being of the community -as a welfare state in contradistinction to Police State. From the above, distinction must clearly be noted between the -

Executives (vested with quasi judicial powers and although subjected to judicial review YET they are NOT the Tribunals. Such Executives although vested with judicial powers do not decide dispute between citizen and citizen which is the exclusive domain of Tribunals. &

Tribunals

(a separate body -especially carved out for Executives which decides disputes between (1) citizen & administration and also between (2) citizen & citizen).

The line of distinction is narrow and thin but crystal clear. ~he Tribunals are other than the Ordinary Courts of Law and they decide the quasi-judicial issues in place of Ordinary Courts of Law WHERAS the Executives or the Administrative Authorities decide independently, in their own right, and in discharge of the duties vested in them. As such, the Executives or the Administrative Authorities are not the other than the Ordinary Courts of Law and they do not decide in place of the Ordinary Courts of Law or the Tribunals.

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Thus, we have the following Courts. JUDICIARY

t Ordinary Civil Court AND Common Law Court

Chancery Court OR Ministerial Department OR Executives Vested with Judicial Powers

1

Traditional Tribunals deciding dispute between citizen and the Administration

Royal Prerogative OR Writ Courts

Tribunals

New Tribunals A new breed deciding dispute of mechanism. between citizen and Under this mechanism citizen Inquiry Commission Can be set up to to maker inquires in general Public interest. In fact, it is neither a Court nor a Tribunal.

6. CHARACTERISTICS OF TRIBUNALS (1) The Tribunals are established by the Executives under a Statute. (2) Tribunals are not the Courts although they do perform some of the judicial functions, i. e., the Quasi-Judicial Functions. (3) Tribunals are not bound by the technical rules of procedure (of the Code of Civil Procedure) and that of evidence (of the Evidence Act). They can adopt such rules as are prescribed in the Statute under which they are established or frame their own rules. (4) But they have to follow the Principles of Natural Justice. (5) The Tribunals, however, have the powers of Civil Court in certain matters and the proceedings before them are the 'Judicial Proceedings'. (6) The 'Sovereign States' are now the 'Welfare States' in contradistinction to the 'Police States. The Welfare States then enact a Statute for a specific purpose and establish the TribunaVs. The TribunaVs so established then decide the dispute or the 'Lis' specified in the Statute under which it is or they are established.

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7. REASONS FOR THE GROWTH OF TRIBUNALS The growth of Tribunals has come in response to the expansion of activities of the Sovereign States. The Workmen's Compensation Act was passed in England. The Courts were bogged down with tiresome and lengthy procedures. The quick remedy was felt very much necessary and the idea of Tribunals - free from technicalities was conceived in England also. The reasons can, however, be enumerated as under:(1) CHEAPNESS: It is no secret that in India, the law courts are expensive, not because of the advocates' fee but for the Court Fee. Undoubtedly, the advocates' fee too adds up to the expenditure. But no Court Fee is prescribed or rather very nominal Court is required to be paid if the matter is before the Tribunal. The procedure being simple, even the legal charge less and thus, it is cheap to resort to Tribunals than to the Court of Law. Naturally, therefore, if an option is available, the citizen certainly would prefer to approach the Tribunal rather than approaching the Court. In fact, one of the reasons for which Tribunals are set up is to make available the inexpensive justice to common men. Necessarily, therefore, the cost factor adds to its enormous growth. (2) EXPERT KNOWLEDGE: Judges may be qualified in law but may not be well conversant with the expertise of the subject matter. In the case of Tribunals, not only the persons qualified in law but also the persons expert in the given field is appointed to hear the case before the Tribunal. It adds up to correctness of the decision of the Tribunal. For example, a dispute with regard to medical claim, the knowledge of medical science is as essential as the legal knowledge. In order to achieve this advantage, the persons qualified in medical science too are appointed on the bench. (3) FLEXIBILITY: The Tribunals are given free hand in adopting their own procedure to deal with and as such, the Tribunals are not bogged down by the procedure followed by the Government Departments or the Procedure prescribed for the Courts of Law. It gives flexibility in the working, which in its turn, adds up to the tremendous growth of the Tribunals. (4) INFORMALITY: The Tribunals are free to adopt their own procedure. For deciding procure, the Tribunals even interact with the parties before it and find out the best of solution in conducting the matter as smoothly and in friendly atmosphere as possible. It adds up to its being more informal than the Courts. (5) SPEED: Due to inflexibility, informality and expertise with the subject matter, the Tribunals process the matter faster and decide it quickly. It gives the speed to them, the hall mark of the litigation -justice delayed is justice denied. The Tribunals have decide a routine type of case, for example, the Income Tax Tribunals will decide the matters relating to income tax, the Labour Tribunals will decide the labour matters. As such, the numbers of cases are bound to be lesser than the Courts before who all types of litigations come up leaving them with less time to attend the case with required speed.

8. REASONS FOR THE DEVELOPMENT OF TRIBUNALS The development of Tribunals was slow but sure, gradual but steady. The development of tribunals can be traced in different countries however in respect of France, England, USA and India are as under:

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In FRANCE, the Counseil d'Etat (or the Administrative Courts) had the exclusive jurisdiction over the State Officials. Napoleon Bonaparte in 18th Century established an institution with the administration to give relief to the citizens against the excesses of the administration. He, therefore, established Counseil d'Etat in 1799 Indeed, initially it was an advisory body but then it started exercising judicial powers. In 1872. its power to give judgement was established. In 1873 the decisions of Counseil d'Etat were taken as final and conclusive. In 1889, it started receiving complaints from the citizens directly. Now it is not only the adjudicatory body but also the consultative body. In ENGLAND, there are NO administrative Courts. I-Iowever, when the control over administration was found unsatisfactory and when a need \1., IS felt to determine the Ministers' Powers, a Committee on Ministers' Power was constituted in 1932. Again in 1950, another Committee was set up which is known as the Franks Committee to recommend (i) the constitution, (ii) the working and (iii) the procedure of the Administrative Tribunals. It made several recommendations, such as:(1) The Administrative Tribunals should be for adjudication rather than as part of the administration. (2) It should act openly, fairly and impartially without any influence of administration. (3) It should help people and litigant should know in advance the case he will be called upon to meet with. (4) It should have powers to receive evidence on oath. (5) Its hearings should in 'public' except in certain cases and award cost in appropriate cases. (6) Its decisions should be in writing and a reasoned one. (7) Its orders should be made available to parties before it. (8) It should have both legal and a lay member. (9) The Chairman should ideally have the law qualification but if it is an appellate Tribunal then the Chairman should always have the legal qualification. (10) As far as possible, appeal should be allowed but in any case, the Administrative Tribunals should be subjected to judicial review. Some of the recommendations of the Franks Committee were given effect to by enacting the Tribunals and Inquiries Act, 1958. Later on, the said enactment was replaced by the Tribunals and Inquiries Act of 1971. Though thereafter, there have been several reforms but the same did not require any new legislation. In USA, when the Constitution was drafted, in 1787, the doctrine of Separation of Powers was adopted very strictly. Consequently, under Article I of USA Constitution. the legislative powers are vested in the Congress, Executive powers in the President and Judicial powers in the Supreme Court and the Courts subordinate to it. Necessarily, therefore, the powers of one wing could not be exercised by any other organ. With all its lofty ideals. the doctrine of Separation of Powers created difficulty in establishing the Tribunals. But happily, the USA came out of its difficulty in establishing the Administrative Tribunals - by delegating Judicial Process, and not the judicial powers, to Administrative Tribunals. In other words, as part of judicial process, the Administrative Tribunals could decide but their decisions were always subjected to judicial

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review. Thus, the provisions of American Constitution were not hit because the decisions of Tribunals are open to Judicial Review and supremacy of judiciary always remained unchallenged. In INDIA, the development of tribunals can be discussed in two parts, prior to and after independence. PRIOR to independence, the Regulating Act, 1773 was passed and three Supreme Courts, one each, at Bombay, Calcutta and Madras, were established. These Supreme Courts were vested with the powers to issue Writs. The powers of issuing Writs also came to be conferred upon the High Courts under the provisions of the Indian High Courts Act, 1861. So far as the Tribunals are concerned, it may be noted that the Tribunals came to be established under the (1) Indian Railways Act, 1890, (2) Industrial Disputes Act, 1947, (3) Motor Vehicles Act, 1939 and several other enactments. AFrER independence, India gave to itself the written Constitution. The Constitution of India provides for establishing the Supreme Court for the whole country and the High Courts for each State. Article 136 of the Constitution of India empowers the Supreme Court to grant special leave of appeal against the decisions of the Tribunals. Article 226 of the Constitution of India empowers the High Courts to issue Writs where Government actions are contrary to law. Article 227 of the Constitution of India vests in the High Courts the power of superintendence over all Courts. The 42 nd Constitution Amendment of 1976 empowered the Parliament and the State Legislatures to set up the Tribunals for Service matters, Revenue, Tax, Labour Disputes, economic offences etc. The appropriate governments were given power to exclude the jurisdiction of the Courts except that of the Supreme Court of India. Formerly, the term "Courts' in the Article 227 included the Tribunals also, however, by 42 nd Amendment Act, 1976, the term Tribunal was deleted. Nevertheless, the word 'Courts' has been so interpreted by the Courts as to retain the judicial control of High Courts over the Tribunals, though limited - SD.Ghatge us. State, AIR 1977 Born. 384. However, by 43 rd of Constitution Amendment of 1977, the exclusion of High Courts' jurisdiction is removed.

9. TRIBUNALS UNDER THE CONSTITUTION OF INIDA Article 227 of the Constitution of India vests in the High Courts the power of superintendence over all Courts. Formerly, the term "Courts' in the Article 227 included the Tribunals also, however, by 42 nd Amendment Act, 1976, the term Tribunal was deleted. Nevertheless, the word 'Courts' has been so interpreted by the Courts as to retain the judicial control of High Courts over the Tribunals, though limited - SD.Ghatge us. State, AIR 1977 Born. 384. The Parliament, in 1976, by 42 nd Amendment to the Constitution included in it the Sections 323-A and 323-B. While Section 3243-A enables the Union of India or the Central Government to establish CENTRAL ADMINISTRATIVE TRIBUNALS for services matters, Section 323-B enables the State Legislature to establish TRIBUNALS for Service matters, Revenue, Tax, Labour Disputes, Economic Offences etc. The appropriate governments were given powers to exclude the jurisdiction of the Courts except that of the Supreme Court, however, by 43 rd of Constitution Amendment of 1977, the exclusion of High Courts' jurisdiction is removed. As such, after such amendment to the Constitution (of India), the order of such tribunals can also be challenged in the High Court.

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There are statutory bodies like Regional Transport Board, Railway Board, Mining Board, Central Board of Revenue, Wage Boards and Central Board of Film Censors, etc. There are authorities like Estate Duty Controller, Rent Controller, Controller of General of Patents and Designs, Registrar of Trade Unions, Registrar of Copy Right, Custodian of Evacuees' Property. Income Tax Authorities, etc. There are Courts like the Court of Survey, Employees Insurance Courts, Labour Courts, etc. There are also Income Tax Appellate Tribunal, Railway Rates Tribunal, Compensation Tribunal, Industrial Tribunals, etc. But in the following cases, it was HELD that the authorities are the Tribunals and as such amenable to the provisions of Article 227 of the Constitution of India; (1) Commr. of Religious Endowments (2) Custodian of Evacuee Property

-

(3) Election Tribunal

-

(4) Excise Appellate Authority

-

(5) Industrial Tribunal

-

(6) Panchayat Court

-

(7) Payment of Wages Authority

-

(8) Rent Control Authority

-

Baradakanta Mishra us. Bhimsen Dixit, AIR 1972 SC 2466 Indira Sohanlal us. Cust. Of Eu. Prop. AIR 1956 SC 77 Hariuishnu Kamath us. Syed Ahmed, AIR 1955 SC 233, All Party Hill Leaders us. Captain Sangna, AIR 1977 SC 2155 Nagendranath us. Comm. Of Hills Diu., AIR 1958 SC 398 D.N.Benarji us. P.R.Mukharji, AIR 1953 SC 58. Bharat Bank Ltd us. Its Employees, AIR 1950 SC 188 Baldeo Sing us. St. of Bihar, AIR 1957 SC 612, Narain Singh us. State, 1958 Pun. 372, Abdul Aziz us. State, AIR 1950 SC 611 Works Manager, C.Rly us. C.M.Pradhan, AIR 1959 SC 1226 Wayam Singh us. Amaranth, AIR 1954 SC 215, Brij Raj Singh us. Laxman Singh, AIR 1961 SC

149 (9) Revenue Tribunals

(10) Statutory Authority

State of Gujarat us. Vakhatsingji, AIR 1968 SC 1481, Bishnu Ram us. Pasrag Saikia, AIR 1984 SC 898 - Rohtas Industries us. Staff Union, AIR 1976 SC 425, Gujarat Steel Tubes Ltd. us. Mazdoor Sabha, AIR 1980 SC 1896

-

In the following cases it was NOT HELD that the authorities were the Tribunals and as such not amenable to the provisions of Article 227 of the Constitution of India;:(1) Advisory Board under

Preventive Detention Law

Madan Shaw us. State, AIR 1962 Cal. 119 - A.K. Gopalan us. State of Madras, AIR 1950 SC27, Ram Manohar Lohia us. State of Bihar, AIR 1966 SC 53

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(2) Conciliation Officer

- Jaswant Sugar Mills us. Lakshimi Chand, AIR 1963 SC 677

(3) Custom Officer

- Indo-China Steam Nauigation Co. us. Collector of Custom, AIR 1964 SC 1140

(4) Domestic Tribunal

-

(5) Legislative Assembly

- Jai Singh us. State of Haryana, AIR 1950 Pun. 379

(6) LIC Zonal Manager

- Pramodrai us. LIC, AIR 1969 Vin, 337

(7) Military Tribunal

- Durga Shankar Mehta us. Raghu Raj Singh, AIR 1954 SC 520

(8) Private Arbitrator

- Engineering Mazdoor Sabha us. Ltd, AIR 1963 SC 874

(9) Registrar acting as Taxing Officer

-

Santhosh Kumar us. Registrar, HC, Calcutta, AIR Cal. 317

(10) State Government exercising powers to make reference under the ID Act.

-

State of Madras us. c.p Sarathy, AIR 1953 SC 53, Auon Seruices us. Industrial Tribunal, AIR 1979 SC 170.

Engineering Mazdoor Sabha us. Hind Cycles Ltd, AIR 1963SC 874, Durga Shankar Mehta us. Raghu Raj Singh, AIR 1954 SC 520

10. ADMINISTRATIVE TRIBUNALS AND PRINCIPLES OF NATURAL JUSTICE The Tribunals exercise judicial and quasi-judicial functions in contradistinction to purely administrative functions. Therefore, it is necessary that the Tribunals act openly, fairly and impartially. It leads to no other conclusion that the Principles of Natural Justice must be followed by the Tribunals. As such, when the Tribunal failed to disclose some evidence to assess relied upon by it (as was the case in Dhakeshari Cotton Mills, AIR 1955 SC 154) or when an inquiry was made by the Rent Controller on the back of the tenant (as was the case in British Medical Store us. Bhagirath, AIR 1955 Pun. 5), the decisions were set aside for violation of principles of natural justice. In Union of India us. IR.Verma, AIR 1957 SC 882, the apex Court held that the law requires that tribunals should observe rules of natural justice in the conduct of the enquiry and if they do so, their decisions are not liable to be impeached on the ground that the procedure followed was not in accordance with that, which obtains in a Court of Law. Earlier, the view was that the Principles of Natural Justice are inapplicable to administrative orders (or the Orders passed by the Executives) but now it is accepted that the Principles of Natural Justice are applicable to the administrative orders also. In State of Orissa, AIR 1967 SC 1269 it was laid down that even an administrative order which involves civil consequences must be made consistent with the Principles of Natural Justice. But in Secondary and Higher Secondary Education us. Paritosh, AIR 1984 SC 1543 the apex Court laid down that the principles of natural justice cannot be carried to such a length as to make it necessary that the

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candidates should be allowed to participate in the valuation of answer books. The test of reasonableness is not applied in vacuum but in the context of life's realities.

11. THE RULES OF EVIDENCE AND RULES OF PROCEDURE, IF APPLICABLE The proceedings of Tribunals are deemed to be 'judicial proceedings' under Sections 193, 195 and 228 of Indian Penal Code and Sections 345,346 of the Code of Criminal Procedure, 1973. Further, the Tribunals are generally vested with POWERS of Civil Courts laid down in Code of Civil Procedure, 1908 in respect of summoning witnesses, enforcement of attendance of witnesses, discovery, inspection and production of Documents, etc. Therefore, there is no denying that the Tribunals are required to follow the rules of Procedure and so also the rules of Evidence. However, they are free to carve out exceptions based on the legal principles and the Principles of Natural Justice and they are bound to scrupulously follow them. In State of Mysore us. Shiuabasappa, AIR 1963 SC 375, the apex Court took the view that Tribunals exercising quasi-judicial functions are not courts and that therefore they are neither bound to follow the procedure prescribed for the Courts nor are they bound to follow strict rules of evidence. In State of Orrissa us. Murlidhar, AIR 1963 SC 404, the apex Court held that the technical rules of evidence do not apply to Tribunals' proceedings and they can rely on 'hearsay evidence' or decide the question of onus or admissibility of documents etc., by exercising their judicious discretionary powers. ALL said and done but it does not mean that the tribunals can act arbitrarily and decide injudiciously. In Bareilly Electricity us. Workmen, AIR 1972 SC 330, the apex Court made it crystal clear that the tribunals cannot decide a matter without any evidence on record or can act upon what is not evidence in the eyes of law or on a document not proved to be a genuine one.

12. RECORDING OF 'REASONS' Recording of 'reasons' is must for the Court of Origin, it is not for the Appellate Court because there is a class distinction between the Appellate Court and court whose order is appealed against it. Therefore, it is mandatory to give reasons for the Tribunals exercising the original jurisdiction or hearing a matter for the first and not hearing the matter in appeal. In M.P. Industries us. Union of India, AIR 1966 SC 671, the Supreme Court, inter-alia, observed that the Appellate Courts may not give 'reasons' when they dismiss appeal or revision in limine (for the same 'reason' on which the trial court had passed the order). It is because the appellate or revisional Court agrees with the reasons given by the original court whose order is impugned before it. The apex Court further observed that condition of giving 'reasons' introduces clarity and excludes or at any rate minimizes arbitrariness; it gives satisfaction to the party against whom the order is made and it also enables an appellate or supervisory Court to keep the tribunals within bounds.

13. FINALITY OF DECISIONS The cardinal principle of civil law is that appeal is not a matter of 'right' or so to say the right of appeal is a statutory right and does not accrue unless it is expressly provided in the Statute under which it is claimed. Thus, if no appeal is provided, the decision given by th,E'

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competent authority is always taken as 'final' 'binding' and 'enforceable at law'. There are statutes which provide appeal against the order of the Court which are otherwise the tribunals. For example, the Bombay Industrial Relations Act provides for an appeal against the Order of the Labour Court before the Industrial Tribunal. So is the case with Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act. However, no appeal is provided under the Industrial Disputes Act. Thus, if the Labour Court passes an Order under the Industrial Disputes Act, it acquires the 'finality' but if the Labour Court passes an Order either under the Bombay Industrial Relations Act or the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, it does not acquire finality until the appeal period expires. When no appeal is provided and the order of the authority or tribunal is made FINAL, the Order acquires the statutory finality. Only when the order acquires finality and when no other remedy is open to the aggrieved party, the extraordinary remedy opens up. This extraordinary remedy in India is available under the Constitution of India. It is also known as JUDICIAL REVIEW or the REVIEW OF DECISIONS.

14. TRIBUNALS AND AUTHORITIEES

EXECUTIVES

AS

QUASI-JUDICAL

In the Modern World the traditional theory of Laissez Faire (Freedom of Contract) is given up and the old "Police State" has now become a 'Welfare State'. On account of this change in philosophy of role of the Government or the Sovereign State, the junctions of the Government or the Sovereign State have increased tremendously. Today, the Executives exercise not only PURELY the administrative functions but also, inter-alia, the judicial and the quasi-judicial functions; Like Imposition of Fines Remember the Police Constable instantly booking you for violating simple traffic rules and collecting the Fine from you! Issuing Search Warrants Remember the income tax or the revenue officer carrying out search at your place under the search warrant issued by his superior officer, the Executive, Seizure etc. It is repeated as to what is stated in earlier Chapter of this Book that when the Authority is required to take any decision, which will prejudicially affect any person, it has, necessarily, to be inferred that such an Authority has to act JudiCially even if no express powers are conferred upon it under any statute. The inference to act judicially can be drawn, inter-alia, from the following:(i) (ii) (iii) (iv) (v) (vi) (vii)

The The The The The The The

cumulative effect of the enactment nature of rights affected manner of the disposal provided objectives criterion to be adopted phraseology used nature of Duty imposed on the Authority AND other indicia afforded by the enactment.

(See Dwarka Nath us. ITO, AIR 1966 SC 81)

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Thus where an Authority makes an Order sllch as, Granting Legal Aid, Dismissing an employee Refusing to grant, revoke, suspend or cancel a License Rusticating a student Etc. Such an Order is of the Quasi-Judicial character. In all such cases, there are no two parties before the Administrative-Authority or the Executives -and the other party to the dispute, if any, is the authority itself. Yet as the decision given by such an authority affects the rights of the person and hence there is a situation resembling a 'Lis'. In such cases, the Executive or the Administrative Authority has to decide the matter objectively after taking into account the objections of the party before it. Despite the fact, that such Authorities have to act quas!judicially, they are not the Tribunals and although their decisions can be challenged in Court" inter-alia, for the:(1) (2) (3) (4) (5) (6) (7) (8)

Breach of Principles of Natural Justice The Excess of Power (Substantive Ultra Vires) Error Procedure (Procedural Ultra Vires) Failure to perform Duty Abuse of Powers Error of Law apparent on the face of record Estoppels Good faith or Bad faith or Malafide

15. ADVANTAGES, DISADVANTAGES AND DEFECTS OF TRIBUNALS (i)

(ii) (iii)

Advantages. Disadvantages. Defects.

(i) ADVANTAGES

The Tribunals have their advantages which can be as under:(1) The days of 'Police State' have come to an end and the happy days of 'Welfare State are here now. But then it has only increased the responsibility of the (Sovereign) State. To meet with these new responsibilities, the (Sovereign) State has come out with the new brand of judicial process in the form of TRIBUNALS. And indeed, the new brand of adjudication by tribunals meets the challenge arising out of welfare measures better than the Courts. (2) It is only to make explicit as to what is implicit. Because it is advantageous to have tribunal, the administrative law has grown so very fast. Therefore, on parity of reasoning, it can be said that ADVANTAGES OF TRIBUNALS are the REASONS FOR

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THE GROWTH of administrative law. The reasons for the growth of administrative law have already been given above and, therefore, for brevity's sake, the same are not repeated here. But the readers may go through the same to refresh their memory. (3) It is not necessary for a Presiding Member of the Tribunal to have the qualifications of law. Its advantage is two fold, (1) even person not having a qualification of Law can be the judge, if it is so essential and (2) a person most suitable with necessary knowledge of technicalities or expertise can be appointed to decide the intricacies of the subject matter. (4) The working of traditional Courts had much dissatisfaction with the change of Police State to Welfare State. Those have been done away by the new avatar of Tribunals. The removal of those disadvantages is the crystal clear advantage. (ii) DISADVANTAGES

There are also disadvantages of Tribunals, which are as under:(1) The traditional Courts reach the truth as it undertakes full investigation by effective cross-examination. But the poor investigation and superfluous cross-examination come as hurdle in the way of Tribunals in reaching the real truth. (2) There is no uniformity in the matter of statutory right of appeal. Sometimes appeal is provided, sometimes it is not. While an appeal is provided under the Bombay Industrial Relations Act, no appeal is provided under the Industrial Disputes Act, 1947. So also no appeal is provided against the Order of Central Administrative Tribunals established under the Administrative Tribunals Act, 1985 and the Order of Tribunal is made final. (3) :Justice is hurried is justice buried'. The speed by itself turns out to be the disadvantage. The rules of procedure and the rules of evidence are not required to be scrupulously followed by the Tribunals resulting in miscarriage of justice, atleast in some cases if not in all cases. (4) It is essential and mandatory requirement that a judge of traditional Court is trained in law or has the qualification in Law. This mandatory requirement is given go-by in the case of Tribunal. It may have telling effect on the decisions which may not stand to the scrutiny by law. (5) Although Members of Tribunals are independent of their counterpart, the Executives or the Departments. But that is not the whole truth, fact remains that the Tribunals too suffer from the same Departmental Bias. (iii) DEFECTS OF TRIBUNALS

The defects are many, however, some of the defects that are most common can be identified easily. FIRSTLY, it has now become a common fashion ·to set up the Tribunals. As such, citizens find it difficult to decide which Tribunal could be the proper forum and which forum could be ideal, when Tribunals in existence are more than one. For example, if a Workman is dismissed, it is possible that, for him, the Labour Court established under the Industrial Disputes Act can also be the proper forum. But possibility is not ruled out that such a Workman may also be an employee under the Bombay Industrial Relations Act and the Labour Court established under the said Act also may be the proper forum. Yet, if provisions of

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Maharashtra Recognitions of Trade Unions and Prevention of Unfair Labour Practices Act are applicable then Labour Court established under that Act can also be the proper forum. Still further, if Maharashtra University Act or Maharashtra Employees of Private Schools (Conditions of Service) Act are also applicable, then the Tribunals set up under respective statutes will also have the jurisdiction. The dismissed employee will really have difficult time to decide. SECONDLY, the procedure, place of sitting of Tribunal and the time taken in each forum will be so totally different that the poor workman will have tears in his eyes, if he did not have when dismissed. THIRDLY, the disadvantages of Tribunals enumerated above will all in totality work out to be the defects of adjudication by tribunals.

16. GENERAL PRINCIPLES IN ESTABLISHING TRIBUNALS (i) (ii)

(iii)

(iv)

(v) (vi) (vii) (I)

(II)

Organization of Tribunals. Appointment of Members. Venue. Procedure. (a) Before the hearing. (i) Generally. (ii) Searches and Seizures. (b) At the hearing. (c) Effect of some of the legal principles. (i) Rule of Self-incrimination. (a) The Person should be Accused (b) Compulsion to be a Witness (c) Against Himself (ii) Rule of Judicial Review (iii) Doctrine of Res-judicta (d) Rules of Law of Evidence Appeals. Contempt. Judicial Review.

Organization of Tribunals: The Tribunals, in India, are set up only (and only) under a legislative enactment. As such, the powers, duties and jurisdictions are well defined and confined in the enactment under which they are set up. The Tribunals set up under labour legislation will have powers and jurisdiction to deal with labour matterS. Taxation Tribunals will have powers and jurisdiction to deal with tax matters and so on. Appointment of Members: As a broad and general rule is that appointment of members are selected and appointed in the manner and method laid down in the statute under which the Tribunals are set up. However, as aforesaid, generally, it is not necessary that a member of Tribunal must have the qualification in Law. In the

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(iii)

administrative Tribunal, a member is appointed from one amongst the administrative cadre. In the taxation tribunals, a person conversant with the taxation is appointed as the member of the Tribunals. The Fees and/or Salary is prescribed in the statute and so also the terms and conditions of employment are governed primarily by the provisions of the enactment under which the tribunals are set up or by the Service Regulations prepared under the said statute. Venue: It is of vital importance for the citizens to know where the Tribunals will hold its sittings. Indeed, it must be nearest and at convenient place so that any and every citizen can easily approach the Tribunal. No doubt, the Statute at the first instance decides but it decides that at all important places/city/District places such tribunals are set up. It is usual to delegate the powers to appropriate Governments to then notify the venue as per the needs arising in future. The venue when for the first time set up and subsequently set up is required to be notified to general and local public by Government Notification for their information.

(Iv)

Procedure:

(a)

Before the hearing. (i) Generally. (ii) Searches and Seizure. (b) At the hearing. (c) Effect of some of the legal principles.

(a) Before The Hearing (I) Generally: It is needless to record that citizens must know before hand the procedure the Tribunals will adopt and for that purpose the Statute under which Tribunals are to establish the procedure to be adopted by the Tribunals, nevertheless, it is also left to the Tribunals to decide its own procedure for the conduct of matters before it. Therefore, the Tribunals too lay down and notify the procedure it will be adopting in the trials before it. In this connection, it may be noted that it is very often laid down whether the hearing will start with Complaint or Application or Appeals. It is provided under the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act that where any person is engaged in or engaging in any unfair labour practice listed in the Act then any union or any employee or any employer or any investigating officer may within ninety days of the occurrence of such unfair labour practice may file a COMPLAINT before the Court competent to decide the same. Whereas the Bombay Industrial Relations Act lays down the proceedings in respect of disputes of specified nature will commence on an APPLICATION made by any employee directly affected or the Labour Officer or a Representative Union and so on. Whereas under the Maharashtra Universities Act, the proceedings start with APPEALS rather than a complaint or an Application as is the case under the above two statutes. (il) Searches and Seizure: Powers of Searches and Seizures are increasingly given to the administrative Tribunals. Even the Commissions of Inquiries are vested with such powers. But the powers so conferred are no different than the powers under the Criminal Procedure Code.

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(b) At The Hearing

The procedure at the hearing is also very often laid down in the statute itself under which the Tribunal is set up, however, it is also left to the Tribunals to decide its own procedure and notify sufficiently in advance to litigating public. The hearings before Tribunals are always held IN PUBLIC. The parties are allowed to be REPRESENTED by advocates but often it is also provided that no advocates be permitted to appear without the leave of the Tribunals and the Tribunals may permit an advocate to appear where the cause involves complicated question of law or where the party is totally helpless without the assistance of a competent person as he is illiterate or when the other side is duly represented by an advocate and so on. The proceedings of Tribunals are deemed to be 'judicial proceedings' under Sections 193, 195 and 228 of Indian Penal Code and Sections 345,346 of the Code of Criminal Procedure, 1973. The Tribunals also have the powers of the Code of Civil Procedure on the issues of • • •

Summoning Witnesses, enforcing their attendance and examining them on oath, Issuing Commissions for examination of witnesses, Discovery, Inspection and Production of Documents including the Books of Accounts, etc.

(c) Effect of Some of The Legal Principles (i)

(ii) (iii)

Rule of Self-incrimination. (a) The person should be accused. (b) Compulsion to be a witness. (c) Against himself. Rule of Judicial Notice Doctorine of Res-judicta

(i) Rule of Self-Incrimination It is the rule of evidence. The 'Common Law' rule is that every accused as presumed to be innocent until contrary is proved, This rule of 'Common Law' is incorporated in Article 30 (3) of the Constitution of India. It provides PROTECTION to a person accused of an offence against compulsion to be witness against himself (M.P.Sharma vs. Satish Chandra, AIR 1954 SC 300). It is also referred to as the rule of self-incriminating. However, this rule may not apply to the Tribunals. Following conditions are required to be fulfilled.

(a) The ,Person should be Accused: The First Condition is that the person should be accused of an offence. In other words, it must be the criminal prosecution and no such protection is available in the civil proceedings (Maqbul Hassain vs. State of Bombay, AIR 1953 SC 325). Further, the protection is available for the first time when the person is accused of the self-incrimination. In State of Bombay vs. Katti Kalu Oghad, AIR 1961 SC 1808, the apex Court held that a person cannot claim protection (of self-incrimination) if he was not an accused when he was compelled to give evidence against himself, though he was made accused subsequently.

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It must also be borne in mind that 'statement' must be the statement which can be said to be the 'self-incrimination' before the Authority. In R.C.Mehta us. State of WB. AIR 1970 SC 940 & Veera Ibrahim us. State of Maharashtra, AIR 1976 SC 1167, the apex Court held that statement made to the Custom Officer in an inquiry under Section 171-A of the Sea Customs Act cannot be regarded as statement by the accused because at that stage, the person making the statement is not the accused of committing any offence. It should also be noted that under Section 95 of the Representation of the People Act, 1951, a witness is obliged to answer all questions including the incriminatory questions and the questions which may render him liable for criminal prosecution but not those questions relating to the candidate for whom he had voted.

(b) Compulsion to be a Witness: Article 20 of the Constitution states that protection is extended only against the compulsion to be a witness against himself. As such, if a person volunteers or where there is no compulsion to be witness against himself, no protection is available. In Kalawati us. HP. State, AIR 1953 SC 131, the apex Court held that the constitutional protection is not available if the accused has made confession voluntarily without any inducement, threat or promise. (c) Against Himself: The Constitution very clearly provides that not only there must be compulsion to give evidence, but also the compulsion must be to give against himself. In L. Chorortia us. State of Maharashtra, AIR 1968 SC 938, the apex COUrt held that if a witness volunteers to answers question from the witness-box, it cannot be said that he was forced to depose against himself. In Raja Narayanlala Bansi/al us. A.P. Mistry, AIR 1961 SC 29, the apex Court interpreted the word 'accused' to mean a person formally accused of an offence. In administrative proceedings, a person is not an accused and hence he is not entitled to the constitutional protection enshrined in Article 20 (3) of the Constitution of India- see also Joseph Augurthi us. Narayanan, AIR 1964 SC 195. (ii) Rule of Judicial Notice

In some limited questions, the Courts can take cognizance of certain facts even though not proved. The Courts take judicial notice of the statutory laws of India. It is referred to as the Rule of Judicial Notice. This principle is very much widened and the Tribunals can take judicial notice of even the notorious facts and also things which may be known to it out of its own experience and expertise. (iii) Doctrine of 'Res-judicta'

This doctrine is incorporated in the Code of Civil Procedure. Section 11 of CPC, inter-alia, lays down that no Court shall try any suit or issue which is directly and substantially is decided in the earlier suit. To constitute Res-judicta, it is necessary that (a)

The matter (the issue) must be the same matter (the issue) which was directly and substantially decided in the earlier suit. The former suit must be between the same parties. (b) The (same) parties must have litigated under the same title in the former suit. (c) The Court, which decided the issue, must be the Court of competence. (d) The issue in the subsequent suit must substantially be the same in the former suit.

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The doctrine also applies to the administrative adjudication. Thus, an Award under industrial disputes Act operates as the res-judicta. In Bombay Gas Co. us. Jagannath Pandurang, (1975) 4 SCC 690, the apex Court held that if it is decided by the court of competence, between the parties, that a particular employee is not the 'workman' under the Industrial Disputes Act, it cannot be agitated again. So also in the decisions given by the Court under the Payment of Wages Act - Bomaby Gas Co. us. Shridahar, AIR 1961 SC 1196. However, in India General Nauigation Co. us. Workmen, AIR 1960 SC 1003, the apex Court held that the doctrine of resjudicta to industrial adjudication with care and caution. As such, it must fairly be clear that there is thumb rule or the universal rule of application of doctrine of res-judicta. (d) Rules of law of Evidence: Although there is no denying that the Tribunals are required to follow the rules of Procedure, they are free to carve out exceptions based on (1) the legal principles and (2) the Principles of Natural Justice and they are bound to scrupulously follow them. In State of Mysore us. Shiuabasappa, AIR 1963 SC 375, the apex Court took the view that Tribunals exercising quasi-judicial functions are not courts and that therefore they are neither bound to follow the procedure prescribed for the Courts nor are they bound to follow strict rules of evidence. In State of Orrissa us. Murlidhar, AIR 1963 SC 404. the apex Court held that the technical rules of evidence do not apply to Tribunals' proceedings and they can rely on 'hearsay evidence' or decide the question of onus or admissibility of documents etc., by exercising their judicious discretionary powers.

The Members of Tribunals have the requisite powers to administer the OATH and take evidence upon oath of the witness. The Law of EVIDENCE requires that the adversary party is given an opportunity to cross-examine the witness deposing against it. It is now usual to allow affidavit in lieu of examination-in-chief, in which case, the Courts insist that the affidavit so prepared must be based on instructions received in writing from the party swearing the affidavit. The Tribunals are also given powers to award COST, if considered necessary by it, to the party who suffered at the hands of the other side. The litigating parties are sufficiently protected and they are given PRIVILEGE against defamation or damages or any action taken up after the litigation is over before the Tribunal to settle the score against the rival party. Whether the privilege is accorded is absolute or qualified will depend upon the nature of privilege claimed and the facts and circumstances of each case. (v) Appeals

The decisions of Tribunals are usually made final and cannot be questioned in any Court of Law, however, in some cases, statutory right of APPEAL is given. While an appeal is provided under the Bombay Industrial Relations Act, no appeal is provided in under the Industrial Disputes Act, 1947. So also no appeal is provided in the Administrative Tribunals Act. Indeed, it is made clear in the Statute itself under which the Tribunals are set up. (vi) Contempt

Although the Tribunals are not the Courts, however, they are different than the traditional Courts. Since the Tribunals also exercise some of the judicial powers and as such, the provisions of Contempt of Court do apply. (vii) Judicial Review

Only when the order acquires finality and when no other remedy is open to the aggrieved party, the extraordinary remedy opens up. This extraordinary remedy in India is available under

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the Constitution of India. It is also known as JUDICIAL REVIEW or the REVIEW OF DECISIONS. The Constitution of India under Article 136 empowers the Supreme Court to grant special leave of appeal against the decisions of the Tribunals. Article 226 of the Constitution of India empowers the High Courts, inter-alia, to issue Writs against the decisions of the Tribunals. Article 227 of the Constitution of India vests in the High Courts the power of superintendence over all Courts. Though, formerly, the term "Courts' in the Article 227 included the Tribunals, it was deleted by 42 nd Amendment Act, 1976. But by 43 rd of the Constitution Amendment Act, 1977, exclusion of Tribunals from the High Courts' jurisdiction is removed.

17. SOME TRIBUNALS IN INDIA (i) (ii) (iii)

(iv) (v) (vi) (vii)

Copyright Board. Court of Survey. Employees' Insurance Court. Income tax Appellate Tribunal. Industrial Tribunal. Railway Rates Tribunal. Central Administrative Tribunal.

(i) Copyright Board: COMPOSITION - It is established under the Copyright Act, 1957. It consists of a Chairman and members not exceeding 18 in numbers. They all are appointed by the Central Government. A person possessing the qualification of being appointed as the High Court Judge can be appointed as the Chairman of the Board.

APPEALS - The Complaints are first to be heard by the REGISTRAR of Copyright and the appeals against it lie in the Board of Copyright. The appeals against the Orders of Board lie before the High Court. FUNCTIONS - The Board of Copyright isTo decide whether the copies of any literary, dramatic etc., under Section 3 of the Act are issued to the public in sufficient quantities. To decide whether term of copyright is shorter in any other country than that provided in respect of that work as provided in Section 5 of the Act and To decide all questions referred to it under Act. To decide a Complaint that the Owner of the copyright has withheld the work or the record from or refused to allow communication to the public. To issue licenses to produce and publish a translation of literary or dramatic in any language under certain circumstances. PROCEDURE - The procedure is as laid down in the Act and the Rules framed thereunder. The Board is also competent to frame its own rules in consonance with the same. (ii) Court of Survey: COMPOSITION - It is constituted under the Merchant Shipping Act. It consists of a Judge and two assessors. The judge and one assessor of the two are appointed by the Central Government whereas the second assessor is appointed by the Judge from the

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List of Assessors prepared by the Central Government. A person possessing qualification of being appointed as the District Judge or a judge of the Small Causes Court can be appointed as the judge of the Court of Survey. FUNCTIONS - The Court hears the appeal against the decisions of the SURVEYORS regarding seaworthiness or otherwise of a Ship. PROCEDURE - The Court foilows the procedure laid down under the rules framed under the Act and reports the proceedings to the Central Government. (iii) Employees' State Insurance Court: COMPOSITION - It is constituted under the Employees State Insurance Act. 1948. Section 74 lays that number of member judges may be as the State Government may deems fit. A person has been a judicial officer or is a legal practitioner of five years' standing is qualified to be appointed as the judge of the ESI Court.

FUNCTIONS - The Court, inter-alia, decidesAs to whether any person is an employee and is liable to pay contributions under the Act. (b) The rate of wages and rates of contributions for the purposes of the Act. (c) Whether the person is the Principal Employer in respect of any employee. (d) The right and/or claim of any person to any benefit, the amount and the duration thereof. (a)

PROCEDURE - The proceedings before the Court starts with the Application made to it. The State Government or the Court itself, if it considers that the Application can be conveniently dealt with by the Court having the local jurisdiction, can transfer the proceedings to the Court having the local jurisdiction. The Application to the Court has to be in the prescribed form. The Court follows the procedure as may be prescribed by the rules made under the Act and also the procedures of CPC in respect of summoning and enforcing the attendance of witnesses, discovery and inspection of documents, issue commissions for examination of witnesses, production of documents and books of accounts, etc. The decisions of the ESI Court can be challenged in appeal before the High Court. The judicial review or the Writ Petition is altogether a different remedy as already noted earlier.

(iv) Income Tax Appellate Tribunal: COMPOSITION - It is constituted under the Income Tax Act, 1961. It consists of judicial and accountant members appointed by the Central Government. A person who has held a judicial post for atleast 13 years or has been a member of the Central Legal Services (not below grade II) or has been in practice as an advocate for atleast 10 years can be appointed as the Judicial Member. Whereas a person who has for atleast 10 years been in the practice of accountancy as a Chartered Account under the Chartered Accounts, Act, 1949 or a registered accountant or has served as the Assistant Commissioner of Income Tax can be appointed as the Accountant Member. FUNCTIONS - Being the Appellate Tribunal, it decides the appeals, disputes between the Assess and the IT Commissioner. The decision of the Tribunal on 'question of facts' is final but the Tribunal is competent to make reference to the High Court on 'question of law'. The judicial review or the Writ Petition is altogether a different remedy as already noted earlier.

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PROCEDURE - The proceedings before the Tribunal starts with filing of an appeal by the aggrieved party. The Tribunal regulates its own procedure. It also follows the procedure of CPC in respect of summoning and enforcing the attendance of witnesses, discovery and inspection of documents, issue commissions for examination of witnesses, production of documents and books of accounts, etc.

(v) Industrial Tribunal: COMPOSITION - It is constituted under the Industrial Disputes Act, 1947. The Tribunals are set up by the appropriate government. It means that if the dispute concerns to more than one State or in which the Central Government is the appropriate government, the Central Government has to establish the Tribunal, otherwise the State Government can constitute the Tribunals on locality basis or otherwise. The Tribunal can consist one or more than one member to decide the dispute under reference. A person who has been a Judge of the High Court or has been the District Judge or any person who is qualified to be appointed as High Court judge can be appointed as the member of the Tribunal. Where two members are to be appointed in respect of disputes relating to banking or insurance, the person with knowledge of banking or insurance can be appointed as the second member of the Tribunal. FUNCTIONS - The Tribunals decides 'industrial disputes' upon 'Reference' by the 'appropriate government' of the 'industrial disputes' between workmen and Employer or workmen and workmen or non-employment or terms of employment or with the conditions of labour of any person. PROCEDURE - The Tribunal has to follow the procedure laid down in the Act and the rules framed thereunder by the 'appropriate governments'. It can also frame the regulations of its own in consonance with the same. The Tribunal also follows the procedure of CPC in respect of summoning and enforcing the attendance of witnesses, discovery and inspection of documents, issue commissions for examination of witnesses, production of documents and books of accounts, etc. The tribunal decides the industrial disputes and makes the Award which is sent to the appropriate government which has made the reference which, in turn publishes the Award. The Award becomes enforceable after one month of publication, however, it comes in operation on (1) the date given in the Award or (2) on the date of passing the Award or (3) after one month of publication of the Award. The decision of the Tribunal is given the finality and no appeal is provided. The judicial review or the Writ Petition is altogether a different remedy as already noted earlier.

(vi) Railway Rates Tribunal: COMPOSITION - It is constituted under the Indian Railways Act, 1989. It consists of a President and Two members. The President/Chairman is a person who has been or is the judge of the Supreme Court of India or a judge of the High Court. While one of the two members is a person with special knowledge of commercial, industrial or economic conditions of the country, the other member is a person with the experience of commercial working of the Indian Railways. The appointments are made by the Central Government. The appointments can be for not more than 5 years. No member can be appointed again. FUNCTIONS - It inquires into the complaints against the railway administration in respect of(e) Contravention of Section 28 of the Indian Railways Act. (f) Charging of rates of stations to stations or rates of wagon-load which are unreasonable. The rates may also be in respect of minimum weight, packing, assumptions of risks or any other matter.

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(g) Levying charges other than standardized terminal charges which are unreasonable. (h) Refusing to quote a new station to station rate or (i) Unreasonably placed commodity in higher class. The Tribunal, (only on application by the Central Government) also decides the reclassification of commodity in the higher class. PROCEDURE - The Tribunal assisted by the Assessors selected from the Panel prepared by the Central Government. There are two types of Panels. One panel has names of about 60 representatives. From amongst others, these representatives may also be from Trade, Industry and Agriculture. The other panel has names of about 30 representatives who have the special knowledge of working of the railway. The assessors are drawn equally from both the panels. The Tribunal lays down its own procedure with the approval of the Central Government. The Tribunal also foJlows the procedure of CPC in respect of summoning and enforcing the attendance of witnesses, discovery and inspection of documents, issue commissions for examination of witnesses, production of documents and books of accounts, etc. The decision of the Tribunal is final and no appeal is provided. The judicial review or the Writ Petition is altogether a different remedy as already noted earlier. (vii) Central Administrative Tribunal: COMPOSITION - The Tribunal is constituted by the Central Government (the Central Administrative Tribunal) and also by the State Governments (State Administrative Tribunal) under the Central Administrative Tribunals Act. The Central Government upon request from two or more States, can also constitute a common tribunal for them.

It consists of a Chairman and such number of Vice Chairman and judicial and administrative Members as the appropriate government may deem fit. The Tribunal shall consist of one judicial member and one administrative member. At first, the benches are set up at New Delhi, the Principal Bench, Allahabad, Calcutta, Madras, New Bombay; however, if considered necessary, the Central Government may set the benches at other places. In State of Bihar vs. Lalu Prasad Yadav, AIR 2002 SC 2431, the apex Court held that if complicated questions of law and facts are involved, the matter should be decided by the Division Bench in which, one of the member should be the judicial member. But otherwise, even the Single Member, administrative or judicial, can be assigned the work to dispose it keeping in view the work load and nature of litigation. A person is qualified to be appointed as the Chairman if he is or has been a Judge of the High Court or has for atleast two years held the office of Vice Chairman. A person is qualified as the Vice Chairman if he is or has been a Judge of the High Court or has held the post of Secretary to the Government of India for atleast 2 years, or has held the post of an additional Secretary to the Central Government for atleast five years or has held the post of judicial member for atleast three years. A person is qualified to be appointed as the Judicial Member if he is qualified to be appointed as a judge of a High Court or has been a member of the Indian Legal Service and has held a post of Grade I for atleast three years.

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A person is qualified to be appointed as the Administrative Member if he has held the post of additional secretary to the Government of India for atleast two years or any post with State Government having the pay scale that of Joint Secretary. The appointments are made by the President of India with the consultation of the Governor of the concerned State. FUNCTIONS - The Tribunals are empowered to decide recruitment matters concerning Civil Services and all the service matters concerning specified persons. The Central Administrative Tribunal will decide the matters of Central Government and the State Administrative Tribunal will decide the matters of the State Government employees. The aggrieved person has to make Application in the prescribed form to the appropriate Tribunal of competent jurisdiction. Generally, the period of limitation is one year with powers to condone the delay for sufficient cause. PROCEDURE - The Tribunal lays down its own procedure and it will be guided by the Principles of Natural Justice. The Tribunal also follows the procedure of CPC in respect of summoning and enforcing the attendance of witnesses, discovery and inspection of documents, issue commissions for examination of witnesses, production of documents and books of accounts, etc. The decision of the Tribunal is final and no appeal is provided. The judicial review or the Writ Petition is altogether a different remedy as already noted earlier.

18. CLASSIFICATION OF TRIBUNALS AND INQUIRIES In England, after seventeenth Century, a new breed of TRIBUNAL came in existence but there was no clear mark of distinction between the Tribunal and the Court. Both have the permanent existence and both will hear and determine a dispute. The Court, historically and traditionally, has its origin in the King, the Tribunal has the special statutory origin. Another body which is noteworthy is the INQUIRIES. It is also not defined in any statute but like the Tribunal, it is also set up under a statutory instrument. While the Tribunal is a judicial body, the Tribunal, as is clear from its expression, is an investigating agency constituted specifically to inquire into a particular matter and it may have a few analogies with a Court which also investigates into a dispute to settle it under its decision. The 'Tribunals' decide, the 'Inquires' do not. Inquiries only investigate and give their 'Report' with suggestions or recommendation. Before the Tribunal, an aggrieved person has a right to be 'Heard', it is not so before the> Inquiries. The 'Inquires' can be held even without 'Hearing' an aggrieved person or the person who is interested in the issues which are inquired or investigated into by the Inquires. There is usually a right of appeal in the decision of Tribunal, there is no such right of appeal available against the report of the Inquires.

19. IMPORTANCE OF INQUIRIES In modern era, the Administration also discharges the welfare activities. For this purpose, the administration is called upon to collect information for taking decisions or for finding corrective measures for a particular problem. The administration thus collects such information through the Inquiries. For example, under the:-

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• • •

Factories Act, 1948, Government is vested with the powers to appoint INSPECTORS, who in their turn, inquires and investigates in the affairs of the factories under the Act. Dentist Act, 1948, Government is vested with the powers to appoint Commission of Inquiry to ascertain if the Dental Council functions within the limits prescribed under the Act. Industrial (Development and Regulation) Act, 1951 the Government is empowered to inquiry into the affairs of the 'Undertaking" listed in the Scheduled Industries.

Thus, as is clear from the above, the Government had powers to make inquires and investigate under different statutes. Naturally, therefore, the Government could make inquires and investigation only (and only) to the extent permitted under the given statute and it could not make inquires in general in the matters of public importance, like the Causes of Riots, Accidents, Malpractices in general and so on. The Parliament, therefore, passed the COMMISSIONS OF INQUIRY ACT, 1952. This Act invests powers in the Appropriate Government to establish 'Commission of Inquiry' on any of the subjects stated in any of the three Lists given in the Th Schedule of the Constitution of India, namely, the Union List, the State List and the Concurrent List after (1) passing RESOLUTION for appointment of 'Commission of Inquiry' in EACH HOUSE OF PARLIAMENT or in the State Legislature, as the case may be and (2) after giving NOTIFICATION in the Official Gazette that (3) 'Commission of Inquiry' is appointed for inquiring into any definite matter of 'public importance' and (4) notify the powers and functions of the 'Commission of Inquiry'. The final recommendations of pay commission are not ipso facto binding on the government because the government has to accept and implement it consistent with its financial position - State of Punjab vs. Amarnath (2005) 6 SCC 754

20. THE COMMISSIONS OF INQUIRY ACT, 1952 (i)

(ii) (iii) (iv)

(v) (vi)

Composition. When appointment of Commission can be quashed? What is Public Importance? Whether Parliament can Enact Law to Appoint Commission Only to Ascertain Facts for Enactment of Legislation? When Obligation to Appoint Commission Arises? Whether Central Government can appoint Commission for Affairs of State? (a) General (b) Section 3, if ultra-vires (c) "If it is opinion", what amounts to (d) Powers and Procedure

(i) Composition: The Inquiry Commission is constituted by the Central Government and also by the State Governments under Section 3 of the Act.

The Commission consists of one or more members. Where more than one member is appointed, one of them will be the Chairman. Section 8-A makes it clear that if Commission has more than one members and one of them is absent, the Commission can carryon its work notwithstanding the absence of one of the members.

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The Appropriate Government under Section 3 of the Act lays down that to establish 'Commission of Inquiry' on any of the subjects stated in any of the three Lists given in the 7th Schedule of the Constitution of India, namely, the Union List, the State List and the Concurrent List after (1) passing RESOLUTION for appointment of 'Commission of Inquiry' in EACH HOUSE OF PARLIAMENT or in the State Legislature, as the case may be and (2) after giving NOTIFICATION in the Official Gazette that (3) 'Commission of Inquiry' is appointed for inquiring into any definite matter of 'public importance' and (4) notify the powers and functions of the 'Commission of Inquiry'. It must thus be clear that the appropriate Government can appoint the Inquiry Commission only when there is for the purpose of making an inquiry into any definite matter of public importance. (ii) When Appointment of Commission can be Quashed?: In KB. Sahay us. Commission of

Inquiry, AIR 1969 SC258, it was held that if the matter is not definite but vague or speculative, the Court can intervene. In fact, in P.K Kauufu us. State of Kerala, AIR 1970 Ker. 252 and Orient Paper Mills us. Union of India, AIR 1979 Cal. 114 it was held if Court finds that the matter is vague and not definite, it can quash the appointment of the Commission. In P.K Kauufu us. State of Kerala, AIR 1970 Ker. 252 the Court quashed the Commission on the ground that the appointment of Commission was malafide.

In Purshottaman S. V. us. State of Kerala, AIR 1983 Ker. 118, it was held that unfounded apprehension on the part of the petitioner regarding the safety and security of himself and his witnesses is ground to quash the government order. (iii) What is Public Importance: Thus, it must be clear that the subject matter of the inquiry can only a definite matter of public importance - Krishna Dalmiya us. Justice TendolkaT, AIR 1958 SC 538 & B. Jaganathan us. State of Tamil Nadu AIR 1990 Mad. 69. In Krishna Dalmiya vs. Justice Tendolkar, AIR 1958 SC 538 the Government appointed a commission to look into the affairs of certain companies controlled by some group of persons and whose shareholders had suffered losses due to alleged irregularities and malpractices in their management. This appointment was challenged on the ground that the Government can appoint commissions to inquire into the matter of 'public importance' and it cannot appoint a commission to inquire into private affairs or the alleged irregularities of individuals. The apex Court rejected it and held that conduct of individuals too can affect the public well-being and, as such, it can become the conduct, a definite matter of public importance. (iu) Whether Parliament can Enact Law to Appoint Commission only to Ascertain Facts for Enactment of Legislation?: In Krishna Dalmiya us. Justice TendolkaT, AIR 1958 SC 538 the aggrieved Companies had also challenged the appointment of Commission on the ground that the Parliament cannot enact any law for appointment of a Commission to ascertain facts for undertaking some legislation and not for administrative purpose. The apex Court rejected it and held that the Parliament can enact laws for holding inquiries not only for legislative but also for administrative purposes. The Commission was appOinted to inquire into the abuses of powers by the ex-chief minister. The apex Court upheld the appointment of Commission on the ground that cleanliness of Public Life in which the public is vitally interested is a matter of public importance envisaged under the Act. (u) When Obligation to Appoint Commission Arises: The obligation to appoint Commission arises only when there is a resolution of the House of People. When there is no resolution or when the resolution is lost in the Parliament, there is no obligation to appoint the Commission.

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(vi) Whether Central Government can Appoint Commission for Affairs of State?:

(a) General. (b) Section 3, if ultra-vires. (c) "If it is opinion", what amounts to. (d) Powers and Procedure General: The powers to appoint Commission are vested indeed in the Appropriate Government; however, the Central Government can too appoint the Commission in respect of State as there is no bar - Orient Paper Mills vs. Union of India, AIR 1970 Cal. 114 & Sidha Raj Dhodda vs. State of Rajasthan, AIR 1990 Raj. 34. In State of Karnataka vs. Union of India, AIR 1978 SC 68, the apex Court held that even the Central Government can appoint the Commission and it is not correct to say that only the State Government is competent to appoint Commissions to look into the allegations against the State Chief Minister. (b) Section 3 - if Ultra-Vires: In State of Karnataka vs. Union of India AIR 1978 SC 68, it was contended that the Section 3 of the Act was ultra-vires. The apex Court held that the question does not arise. (c) If it is of Opinion - What Amounts To: In Rajendran vs. Home Secretary, AIR 1983 SC 68, it was held that unless compelled by Lok Sabha or the Legislative Assembly of the State concerned, the Government has the discretion to appoint or not to appoint the Commission depending upon its opinion. (d) Powers and Procedure: Section 4 lays down the powers of Commissions as under:The Commission can

(a)

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(i) Summon, (ii) enforce attendance and (iii) examine witnesses on oath . If witnesses are examined, the right of cross examination is implicit and given under Section 8-C of the Act. Receive evidence on affidavits . Require discovery and production of documents . Issue commission to examine witness and documents . Requisition public records . Any other matter which may be prescribed . The Commission can have as additional powers as may be conferred upon it by the appropriate government. The powers conferred will need to be notified in the Government Gazette. The Commission can require any person subject to his privileges, to furnish information. Failure to give information or giving false information amounts to Contempt of the Lawful Authority respectively under Section 176 and Section 177 of the Indian Penal Code. Such person has the powers of Seizure, subject to the 'Right of Private Defence' under Section 102 and 103 of Indian Penal Code.

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The Commissioner is a Civil Court. The disobedience of his orders attracts provision of Contempt of Lawful Authority for (1) Omission to produce documents, (2) Refusing Oath or affirmation, (3) Refusing to answer to questions, (4) Refusing to sign Statement and (5) Intentional insult or interruption, respectively under Sections 175, 178, 179, 180 and 228 of the Indian Penal Code. The Commission has to forward his report to the Magistrate of competent jurisdiction who will try the offences as contemplated under Section 482 of Cr.P.C. The proceedings before the Commission are deemed to be the judicial proceedings and hence provisions of Section 193 (for false evidence) and Section 228 (intentional insult or interruption) of Indian Penal Code. The Commission can utilize the services of Officers and investigation agencies of Central or the State Government for its investigation pertaining to Inquiry. Whereupon, powers of inspection, Seizure etc., are exercisable. The Commission can also appoint the persons of special knowledge of any matter concerned with the inquiry as the Assessors. The Commission has to observe the Principles of Natural Justice. The Commission has to HEAR the persons likely to be prejudicially affected, at any stage of his inquiry. The parties may be permitted to be represented by the Legal Practitioner. The Report of Commission of Enquiry is not binding on Government or Court. T.T. Antony vs. State of Kerala, AIR 2001 SC 637

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CHAPTER-9

JUDICIARY - III (Judicial Control on Administrative Discretion) SYNOPSIS

1. 2. 3. 4. 5. 6. 7. 8. 9. 10.

Introductory Control over Delegated Legislation The Legislative Control Judicial Control on Administrative Acts What is 'Discretion'? Discrimination and Discretion -Distinction of 'De Pouvoir' Doctrine Judicial Review of Discretion in India Restraints and Constraints on Discretion Fundamental Rights and Administrative Discretion (a) Introduction (b) Equality Of Law (c) Freedom to Carryon Trade and Occupation (d) Conclusions 11. Grounds of Challenge of 'Administrative Discretion' EXPLANATIONS (I) The Doctrine of 'Ultra-Vires' (II) Error of Law Apparent on the Face of Record (III) Failure to Exercise Discretion (IV) Abuse of Discretion (V) Estoppel (VI) Principles of Natural Justice Case Laws (136)

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1. INTRODUCTORY The primary function of Sovereign States, earlier, was to protect their subject from internal and external attacks. They (the Sovereign States) were, therefore, nothing more than the 'Police States'. But the Sovereign States, in modern era, not only protect their subject from internal and external attacks but also (they) undertake activities of every nature and in all direction. Therefore, it is inappropriate to call them (merely) the 'Police States'. The more appropriate identity-tag for them could be the 'Welfare States'. The Sovereign States have now come in the new 'Avatar' of the 'Welfare State'. The new 'Avatar' undoubtedly owes its origin in the multifarious activities of Sovereign States. The increase in the activities of the (Sovereign) State has, in its turn, necessitated the need of vesting more and more powers in the Executives or the Government Officers. So the powers of State Executives or the Government Officers have so enormously increased that the Executives or the Government Officers go even to the extent of Legislating - in cases of emergencies and exigencies by exercising Quasi-Legislative powers, (ii) Framing rules and regulations - under Delegated Legislation AND (iii) Deciding disputes - between Administration and Citizens and exercise Quasi-Judicial powers. While it is undenying that the Executives of modern States do need more leg-room to function, and for that reason, they need more 'discretionary powers' it is equally true that there must be 'Checks' and 'Prevents' on their exercise of powers in oppressive, capricious or arbitrary manner. (i)

2. CONTROL OVER DELEGATED LEGISLATION No doubt the Parliament never intends to make ultra vires rules or the rules manifestly unreasonable. It is also true that the Delegated Legislation must act (operate) 'in good faith' and reasonably intra-vires the powers, nevertheless, there is always inherent danger of misuse and abuse of powers. The basic problem, therefore, is controlling the delegates who will be ultimately exercising the powers invested in them by the Legislatures. The control is therefore introduced at two stages, viz., before delegating the 'Discretionary Powers' and (ii) after delegating the 'Discretionary Powers'. In other words, the Legislature make such Laws that its misuse and/or abuse is impossible and then the Legislature also provide safeguards, in case of any misuse or the abuse of powers by the Delegate. The control over delegated legislation (after delegation) may be divided into two: (1) Legislative Control and (2) Judicial Control. (i)

3. THE LEGISLATIVE CONTROL Before delegating the 'Discretionary Powers', a vigorous procedure has to be gone through. In this connection, it must be noted that:-

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FIRST of all, the party in power appoints the Scrutiny Committees to consider all pros and cons of the proposed legislation. Only after the nod of the Scrutiny Committee, the proposed legislation moves an inch further in the direction of making it. SECOND, the legislature also requires that when Executives frame rules and regulations, such rules and regulation are tabled on the floor of the Parliament. The Notaries Act, 1952 in Section 15 (3) lays down that every rule made shall be laid (as soon as may be) (after it is made) before each house of Parliament, while it is in session. THIRD is the Consultation. By this technique the affected persons are given an opportunity to give their "Say" and make Suggestions, Recommendations or Objections before the Law is finally enacted for them. Thus, before any rule is made in respect of doctors, medical associations are consulted. Indeed, it is very essential to draw a line of distinction between the CONTROLS on (1) Delegated Legislation and (2) acts (Decisions) of Delegates. While Delegated Legislation is discussed in the earlier Chapter, the discussion on acts (decisions) of Delegates is undertaken in this chapter.

4. JUDICIAL CONTROL ON ADMINISTRATIVE ACTS The main object of conferring Power/Discretion upon the Delegates or the Administrative Authority is that the Authority itself must exercise powers conferred upon it. But, all said and done, there must be control over discretionary powers of the administration so that there will be a government of laws and not of men. The control over discretionary powers of the administration by Courts of Law is called as the Judicial Control over Delegated Legislation or Administrative Discretion. The Judicial Review, it must be noted, is directed not against the decision but is confined to the examination of decision-making process. It was observed by the Court that the purpose of judicial review (for the purposes of judicial control) is to ensure that the individual receives fair treatment, and to ensure that the authority, after according fair treatment, reaches, on a matter which is authorized by law to decide for itself, a conclusion which is correct in the eyes of the Court - Chief Constable of the North Wales Police us. Euans, (1982) 3 All E.R 141. In other words, the administration vested with powers to decide any issue must decide in such a way that if its decision is challenged then the Court exercising the supervisory powers must be able to hold that the conclusions it has reached are correct in the eyes of law. But if the Administration has to 'Decide', then it must have vested in it 'discretion' or the 'administrative discretion' or the 'discretionary powers'. But then what is 'discretion' or the' 'discretionary powers' or the 'administrative discretion'? When High Court found that statutory remedy is not efficacious and entertained the writ, the apex did not reconsider the issues - State of HP us. Gujarat Ambuja Cement Ltd. (2005) 6 SCC 499. Alternative Remedy was considered to be self imposed limitation. Despite the existence of alternative remedy, it is within the jurisdiction or discretion of High Court to grant the relief. If some body ensures that he has made out a strong case or that there exists good grounds to invoke extraordinary jurisdiction - UP State Spg. Co. Ltd. Vs. R. S. Pandey, (2005) 8 SCC 264.

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5. WHAT IS 'DISCRETION'? If only one course is open to make lawful decision, there is no 'Discretion'. But if there is more than one option then one has the 'Discretion' in choosing the alternative from amongst the various available alternatives. The 'Discretion' thus implies that there is a choice; choice between good-bad, falsity-truth, proper-improper, right-wrong and so on. Indeed, the 'Discretion' has to be used in accordance with rule of reason and justice and cannot be used arbitrarily or according to personal whims and fancies.

The 'Discretion', in Administrative Law, is also referred to as the 'Administrative Discretion' or simply as the 'Discretionary Powers'. By whatever name it may be referred to, it surely means that that the authority takes DECISION not only on the basis of evidence but also in accordance with the (a) 'Policy' or (b) 'Expediency'. In any case, the 'Discretion' must be measurable by legal standards lest cases of manifest injustice go unheeded and unpunished. Lord Halsbury sought to explain the term 'Discretion' in Sharp vs. Wakefield, (1891) 173: (1886-90) All. E.R. 651. His explanation can be summarized thus:-

A.c.

"Discretion means that when something is to be done within the discretion then that (something) must be done• • •

According to Rules of (i) reason and (ii) justice and not according to private opinion. According to Law and not according to humer. It (something which is to be done) (or the discretion) is to be, not arbitrary, vague and fanciful, but legal and regular AND • It (something which is to be done) (or the discretion) must be exercised within the limit to which an honest man ought to confine himself to the office he holds. In Rook's case, (1598) 5 Co. Rep 99 b the Commissioners of Sewers had levied charges for repairing a river bank, however, instead of apportioning it to all the owners who were benefited, threw the whole charge on the adjacent owner. In law, the exercise of powers was most 'unreasonable' and bad in law. The Court observed that the 'Discretion' is a science or understanding to discern between falsity and truth, between wrong and right, between shadows and substance, between equity and colourable glosses and pretence and to do according to their wills and private affections. The administrative officials holding high office and exercising discretionary powers are not supposed to mortgage his discretion and decision making authority and succumb to political pressure to commands having sanctity of law. Tarlochan Dev Sharma vs. K. G. Balkrishnan, AIR 2001 SC 2524. When an authority hands over its discretion to another body, it acts ultra vires. The distinctive features of some of the recent cases signify the willingness of the Court to assert their power to scrutinize the factual bias upon which discretional powers have been exercised. One can conveniently classify them into three heads, on the grounds on which administration is subject to control by judicial review. The first ground is alienity, the second is irrationality and the third is procedural impropriety. The court will be slow to interfere in such matters unless decision is tainted by any vulnerability and procedural impropriety. Whether the action falls within one category or not has to be ascertained - Indian Rly Const. Co. vs. Ajoy Kumar, AIR 2003 SC 1843.

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'Discretion' must be exercised only by the authority to which it is committed. The authority must address itself with the matter before it. It must not act under the dictates of another body or disable itself from exercising discretion in each individual case. In the purported exercise, it must not do what it has been forbidden to do, nor must it do what is not been authorized to do. It must act in good faith, must have regard to all relevant considerations and must not be influenced by irrelevant consideration and must not promote the purposes aliens to the letter or to the spirit of the legislation that gives it power to act and must not act arbitrarily or capriciously. These several principles can conveniently be grouped in two main categories (1) excess exercise of a discretion and (2) excess or abuse of discretionary power. The classes are not however, mutually exclusive. Thus discretion may be imperatively fetter because irrelevant considerations have been taken into account and judicial review of administrative action is limited to decisions making process and does not extend to the merits of the decision taken - K. Vinodkuar vs. S. Palanswamy, AIR 2003 SC 3171. Even if it is obligatory to consult an independent body and if it is not consulted, it is not fatal. Arun Roy us. Union of India, (2002) 7 SCC 368. State and its executives cannot interfere with the rights of others except where their act ins are authorized by specific provisions - State of WB vs. Vishunara & Associates, (2002) 4 SCC 184.

6. DISCRIMINATION AND DISCRETION - DISTINCTION OF It is clearly recorded above that 'Discretion' must be according to Rules of 'Reason', ~ustice' and Law. Further, it must be legal and regular and must be exercised within the limit to which an honest man ought to confine himself to the office he holds. In any case, 'Discretion' must be measurable by legal standards. Therefore, if 'Discretion' violates any of the above, it ceases to be 'Discretion' and turns into 'Discrimination'. In other words, when 'Discretion' is exercised arbitrarily, fancifully and according to private opinion, it becomes Discrimination. When Discretion ceases to be the discretion and turns into 'Discrimination', it affords a ground of challenge. Undoubtedly the Constitution of India guarantees 'equality of law' and 'equal protection' to all citizens and, from that, it appears that no discretion is left with the Executives; however, that is not true. The judicial rulings show that if discretion is exercised for lawful purpose on 'reasonable classification', it is lawful and it does not violate the fundamental rights guaranteed under the Constitution. But when 'Discretion' ceases to be the 'Discretion', it turns into 'Discrimination', the 'action' or the 'decision' of the Executive being 'discriminatory', is not protected or upheld because what is permissible under law is 'Discretion' and not the 'Discrimination'.

7. 'DE POUVOIR' DOCTRINE The French Administrative Law, in order to check prevent and control the misuse and abuse of 'Discretion' by the Executives, has developed a concept of de tournament de pouvoir. The principle involved in the doctrine is that the administrative authority commits an abuse of powers when it uses its authority for purpose other than those that the delegating authority intended to use it. In other words, it is misuse and abuse of authority if it is used for a purpose other than the permitted one. The French doctrine affords the 'ground' to challenge the administrative action. The modern

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(administrative) law has developed some more grounds on the line of French concept in challenging the administrative action on the ground of misuse and abuse of powers. The Court has to find out of administration has left out relevant factors or taken into account irrelevant factors. The decision must be within the four corners of law and not one which no sensible person could have reasonably arrived at. The decision could be one of many choices open to the authority to decide upon the choice and not for the Court to substitute its view Indian Const. Co. Ltd. us. Ajay Kumar, AIR 2003 SC 1843.

8. JUDICIAL REVIEW OF IDISCRETIONI IN INDIA In India also, Discretion is not uncontrolled and non-reviewable. The Discretions in India, over and above constitutional protections, are reviewed by High Courts and Supreme Court. The grounds of challenge in India are no different than the grounds available in any other democratic country in the world. The grounds of challenge are discussed in the following paragraphs and the same may beneficially be read over here. The High Court under Article 226 or 227 and the Supreme Court under Article 32 should not interfere with punishment imposed by General Court Martial on the ground that it is disproportionately harsh except the punishment in cases of perversity or irrationality. Union of India us. R.K. Shah. AIR 2001 SC 3053

9. RESTRAINTS AND CONSTRAINTS ON IDISCRETION 1 There are two types of 'Discretionary Powers':(1) Simple ministerial powers, which may not affect citizens' right, like maintaining record of births, deaths and marriage etc. AND (2) The powers seriously affecting citizens' rights, like acquisition of property etc.

As a general rule, Courts do not interfere with the actions taken by Executives in exercise of their 'Discretionary Powers'. In A.K.Gopalan us. State of Madras, AIR 1950 SC 27, Bhimsen us. State of Punjab, AIR 1951 SC 481, Lakhanpal us. Union of India, AIR 1967 SC 908, Ram Manohar Lohia us. State of Bihar, AIR 1966 SC 740, the Hon'ble Supreme Court of India held that the Courts have no power to inter:fere with the orders passed by the administrative authorities in exercise of their 'Discretionary Powers'. However, in Sheonandan Paswan us. State of Bihar, AIR 1987 SC 877, the Hon'ble Supreme Court of India took a view that Law always frowns on unchannalised and unfettered discretion conferred on any instrumentality of State and it is in the glory of administrative law that such discretion has been, through judicial decisions, structured and regulated.

It means (1) Wider the discretion, the greater is the possibility of abuse (2) Greater the power, the greater need for restraining its exercise and (3) All powers have legal limits. Therefore, there must be control over discretionary powers of the administration so that there will be a government of laws and not of men. The control over discretionary

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powers of the administration by Courts of Law is called as the Judicial Control over Delegated Legislation or Administrative Discretion. The Judicial Review, it must be noted, is directed not against the decision but is confined to the examination of decisionmaking process, (Chief Constable of the North Wales Police vs. Evans, (1982) 3 All. ER 141).

10. FUNDAMENTAL RIGHTS AND ADMINISTRATIVE DISCRETION (a) (b) (c) (d)

Introduction. Equality of Law. Freedom to carryon trade and occupation. Conclusions.

(a) Introduction: The grant of discretionary powers itself must stand to the test of fundamental rights enshrined in the Constitution of India. Therefore, the grant of discretionary powers can be challenged under the fundamental rights enshrined under the Constitution of India. Our Constitution, inter-alia, guarantees the (a) Equality of Law and (b) Freedom to carry on trade and occupation. (b) Equality of Law: West Bengal enacted a statute under which the Government could set up special courts and refer to it some cases. The Act did not lay down what types of offences or cases were to be tried by the special courts. The executive authorities could arbitrarily select a case for being tried by the special courts. In State of West Bengal vs. Anwar Ali, AIR 1952 SC 75, when challenged, the Hon'ble Supreme Court of India held that the said statute gave uncontrolled power to executives and violative of Article 14 of the Constitution of India. In Satwant Singh vs. Assistant Passport Officer, AIR 1967 SC 1836, it was contended that the unfettered discretion given to the Passport Officer under the Passport Act offended Article 14 of the Constitution of India. The Supreme Court of India upheld the challenge and held the Act invalid being violative of Article 14 of the Constitution. (c) Freedom to carryon trade and occupation: The Constitution of India gU'-lrantees the

right to carryon trade and business but subject to reasonable restrictions. If the administration seeks to impose restriction on carrying out one's trade or business, and if the restriction sought to be imposed by the administration is not reasonable, the Courts considers the 'reasonableness' and if it comes to the conclusion that the restriction imposed by the administration is unreasonable or not reasonable, the Courts remove the restriction imposed by the administration and thereby controls the unchecked powers of the administration. In Dwarka Prasad vs. State of Up, AIR 1954 SC 224, the Hon'ble Supreme Court of India held that a rule requiring a licensee to stock, sell or store an essential commodity like coal was not objectionable as a general rule. But the provisions empowering the Licensing Authority to exempt any person or class of persons from taking such a license without framing Rules were invalid as being unreasonable restrictions upon the fundamental rights. In Seshadri vs. District Magistrate, AIR 1954 SC 747, the rule requiring a Film Exhibitor to show a film of approved length but not less than 2000 ft was held to be unreasonable as the maximum length was not prescribed as it vested in the Government, unregulated discretion to compel an exhibitor to show a film of any length. (d) Conclusions: The violation of only two fundamental rights is discussed above but it must clearly be noted that the violation of other fundamental rights too can be

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challenged. Not only the violation of the fundamental rights but also the violation of any of the provisions of the Constitution of India can be challenged. Even if there is no violation of fundamental rights or any of the constitutional provisions, the actual exercise of administrative discretion can be scrutinized by the Courts, indeed, on different arena and on a smaller scale. The challenge in that case has to be tested on a different arena and on a smaller scale because the Courts are not the appellate forum where the correctness of the order of the Government can be challenged. The only question which could be considered by the Court is whether the authority vested with the power has paid attention to or taken into account circumstances, events or matters wholly extraneous to the purpose for which the power was vested or whether the proceedings have been initiated malafide for satisfying a private or personal grudge of the authority exercising the powers.

11. GROUNDS OF CHALLENGE OF 'ADMINISTRATIVE DISCRETION' The grounds of challenge, other than violation of constitutional provisions of Administrative Discretion, are as under:(1) The Administrative Discretion is ultra-vires the enabling Act - see Explanation - I (2) Excess of Powers or Substantive ultra-vires - see Explanation - I (3) Procedural ultra-vires or there is Error of Procedure - see Explanation - I (4) There is Error of Law Apparent on the Face of Record - see Explanation - II (5) There is a Failure to Exercise Discretion. - see Explanation - III (6) There is Abuse of Discretion - see Explanation - IV (7) The Estoppels - see Explanation - V (8) There is a Breach of Principles of Natural Justice - see Explanation - VI The above Grounds of Challenge, other than violation of constitutional provisions, of Administrative Discretion are discussed in EXPLANATIONS I, II, III, IV, V and VI as under:-

EXPLANATION - I THE DOCTRINE OF 'ULTRA-VIRES'. (a) Historical Back Ground. (b) Meaning. (c) Effect of. (d) Substantive 'ultra-vires'. (e) Procedural 'ultra-vires'. (a) Historical Back Ground: The term 'ultra-vires' in England, was used sometimes in the middle of 19th Century to denote the excess of legal authority by statutory bodies, like the local authorities and railway companies. But then it came to be used in relation to the Crown, its servants and even to the inferior judicial bodies. Then it came to be applied to the Colonies subject to the rule of the Crown. That is how, in India, the concept of ultra-vires has developed on the lines of Anglo-Saxon Law. The France undoubtedly has entirely different system but difference is in the system and not in the principles; it is the same with different brand name.

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(b) Meaning: The Parliament did not and could not have intended to confer power that could be exercised in such a manner as to flout it conveniently. Therefore, when any authority exercising its powers acts beyond the powers conferred upon it, it is said that he has acted ultravires. When the act of the Executive goes beyond the scope of the authority conferred upon it, the aggrieved party can approach the Court for the redressal. The Court thereupon reviews the decision of the administrative agency and ascertains whether the agency has exceeded its powers, has acted ultra-vires. This is fundamentally a simple doctrine based on Common Law that all Government Powers must be recognized by the Law. In France, the work of review is undertaken by the Courts of Law but by the Conseil d'Etat, which itself is the part of the administration and therefore, perhaps and, in all probabilities, for this reason, the burden of proof, in France, is upon the party alleging that the administration has acted ultra-vires. In England too it is the same, but it is because in England the judicial review follows the ordinary pattern of civil proceedings; the burden of proof rests on the person contesting the validity of the act. (c) Effect of the Act: The act, if 'ultra-vires' is null and void and of no legal effect whatsoever. It has no leg to stand on. The phrase 'null and void nullity' means that 'as if nothing had happened'. The rules of 'estoppel' and the 'approbate and reprobate' do not apply to the doctrine of ultra-vires. The doctrine of ultra-vires would be defeated by a rule of estoppel if the administrative authority is conferred with the powers of creating an estoppel - Ministry of Agriculture & Fisheries vs. Mathews, (1950) 1 KB 148 : (1949) All E.R. 724. Similarly, no question of acquiescence or waiver can be raised against an ultra-vires - Lohia Machines Ltd. vs. Union of India, (1985) 2 SCC 197 : AIR 1985 SC 421. The effect of fending of ultra-vires will benefit all - and not only to the parties before the Court - K.N. Raghvan vs. Habib Mohd, (2002) 10 SCC 180.

Authority has to exercise powers only in the manner prescribed in the Statute itself. Captain Subesing vs. Lt. Gov. of Delhi, AIR 2004 SC 4236. Exercise of statutory powers involves a duty to comply with requirements of law. S. Ramnathan vs. Union of India, (2001) 2 SCC 118. Where statutory authority is set up to look into the welfare of children, prerogative of the Crown to act as parents patriae is pro-tanto restricted by such statue, so that the Courts cannot inquire into the wisdom of the decisions of the statutory authority so long as it is acting with the limits of its statutory power. It means so long as it is not ultra vires or malfides the courts cannot interfere with the duties or discretion vested in statutory authority. Re A (1954) 2 All. E. R. 287. If a decision is taken by a statutory authority at the behest or on the suggestion of a person who has no statutory role to play, the same would be ultra vires. Bahadursing Lakhubhai vs. Jagdishbhai M. Kamdia, AIR 2004 SC 1159. (d) Substantive Ultra-vires or Excess of Powers: The substantive ultra-vires means the Administrative Body which is conferred with certain powers under Statute goes beyond the scope of the authority conferred on it by the statute under which it derives the powers. In other words, if a statute confers jurisdiction on an administrative body in certain defined factual situations, and if one of the essential elements of those factual situations is absent in the given case, the administrative body will be without jurisdiction and any decision taken by it will be ultra-vires. In Marathawada University vs. Sheshrao, (1989) 3 SCC 132 : AIR 1989 SC 1582.

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the apex Court said "The statutory authority cannot travel beyond the power conferred and any action without power has no legal validity. It is ab-initio void and cannot be ratified".

(e) Procedural 'Ultra-vires'; The Administrative Agencies must exercise powers conferred upon it by the statute in the manner specified by the statute. When the Administrative Agency fails to comply with certain procedural requirements prescribed by the statute under which it derives its authority, it is called as the Procedural ultra-vires. To put it in simple expression, it may be stated that if Government does not comply with the procedural requirements prescribed by a statue, its act is invalid. For example, if the statute or the Rules, Regulations, Bye-Laws etc., requires the administrative agency to hold consultation or seek approval in a prescribed manner or publication of draft rules or bye-laws is required or laying before the Parliament the rules and regulation for its approval, etc., then it is incumbent upon the administrative agency to do so. The failure to do so results into procedural ultra-vires. Where a local authority were required to serve a notice as a preliminary to the taking of slum clearance action and the notice did not give particulars of the recipient's right to appeal to the Courts, as required by the statute, the notice was held to be void and whole of subsequent proceedings ultra-vires - Rayner vs. Stepney Corpn., (1911) 2 Ch. 312. Where the Assam Settlement of Forest Coupes and Mahals by Tender System Rules provided that a Notice inviting tenders should be published in the Official Gazette not les than 15 days before the last date of submission of the tenders. The Government's action was held to be invalid for noncompliance of the said procedural requirement - Bipin Chandra vs. State of Assam, AIR 1972 Gau. 19. It is important to note that some procedures are mandatory (compulsory) and some procedures are directory. Whether the procedural requirement is mandatory or directory is decided by the Court - see Narayana vs. Sate of Kerala, AIR 1974 SC 175. Generally, noncompliance with directory procedure does not invalidate the action of the administration but failure to observe mandatory and imperative procedure does. In Naraindas vs. State of M.P., AIR 1974 SC 1232, the apex Court held that if the procedural requirement laid down in the State is mandatory and it is not complied, the exercise of power will be bad. But if the procedure is simply directory and not mandatory then its substantial compliance is sufficient. In Veerapa Pillai vs. Raman & Raman Ltd., AIR 1952 SC 192, the apex Court held that however, extensive the jurisdiction may be, it seems to us that it is not so wide or large as to enable the Courts to convert itself into a court of appeal and examine for itself the correctness of the decisions impugned and decide what is the proper view to be taken or the order to be made. When procedures is prescribed, the authority must exercise its powers in the manner prescribed - or nor at all- Indian Banks Associations vs. Dev Consultancy Services AIR 2004 SC 2615.

EXPLANATION - II ERROR OF LAW APPARENT ON THE FACE OF RECORD

The most essential of 'Error of Law on the face of Record' is that the error should be demonstrable from the certified records. The error is apparent if it is clear and obvious from the record of the proceedings of the inferior agency and ascertainable by the supervising Court. In Batuk K. Vyas vs. Surat Borough Municipality, AIR 1953 Born. 133-137, the Hon'ble Bombay High Court held that an error ceases to be a mere error if it is self-evident and no argument to

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establish it is necessary. It is an error so manifest, so clear that the Court cannot permit it on record. In Hari Vishnue Kamath us. Syed Ahmad Ishaque, AIR 1955 SC 233, the apex Court observed that no error can be said to be apparent on the face of the record if it is not selfevident and it requires an examination or argument. However, it is not always easy to recognize an error of law apparent on the face of record because "an error which might be considered by one judge as self-evident, might not so considered by another" - AIR 1955 SC 233-244. In Pearlman us. Keepers and Gouernors of Harrow School, (1979) 1 All. E.R. 365, Lord Denning said that this distinction should be discarded. In Syed Yakoob us. Radhakrishnan, AIR 1964 SC 477, the apex Court summarized the correct position that whether or not an impugned error is an error law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each case and upon the nature and scope of the legal provision which is alleged to have been misconstrued or contravened. The ground of judicial review was brought to the fore by the Court of Appeal decision in R us. Northumberland Compensation Appeal Tribunal, 1952 I All E.R. 122. In the course of judgement, Denning L.J. said (page 127) " ... the Court of King's Bench has an inherent jurisdiction to control all inferior tribunals, not in appellate capacity but in a supervisory capacity. .. .. ". There is fine distinction between 'appellate jurisdiction' and 'supervisory jurisdiction'. The subject matter of distinction does not fall in the domain of the administrative law and hence not discussed here. But briefly speaking, in appeal, the appellate court has all the powers of the lower court and the appellate Court decides the case de-nouo. But under the Supervisory Jurisdiction, the Court does not hear the matter de-nouo, simply sets aside the order which suffers from error apparent on the face of record because the Supervisory Court cannot permit it on record. In Satyanarayan us. Malli karaj un, AIR 1960 SC 137, the Revenue Tribunal rejected the Landlord's Application on the ground that the landlord had not given the 'previous' Notice as required under the Act. The Order was assailed as being vitiated by error of law apparent on the face of record. The Supreme Court held that, in a given case, whether a 'previous' Notice is required to be given, has to be gone into and therefore, it is not the error apparent on the face of record. In KM.Shanmugam us. S.R.V.S. (P) Ltd., AIR 1963 SC 1626, the Transport Authority had refused to grant carriage permit. According to Transport Authority, if a company had a branch office at any particular place, it could not have in law any other branch office. Since the permit was rejected on the basis of this criterion, the Supreme Court quashed the decision. This test was erroneous and, therefore, the decision of the Transport Authority was vitiated by error law apparent on the face of record. In Basappa us. Nagappa, AIR 1954 SC 440, the apex Court held that there must be a manifest error apparent on the face of the proceedings, e.g. when it is based on clear ignorance or disregard of the provisions of law. It other words, it must be a patent error and not the wrong decision.

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EXPLANATION - III FAILURE TO EXERCISE DISCRETION (i) (ii)

(iii)

(iv) (v)

Acting under dictation Non-application of mind Imposing fetters on exercise of discretionary powers Acting mechanically Sub-delegation (a) Meaning. (b) Object. (c) Caution. (d) Legal Philosophy. (e) Notable Distinction. (f) Whether Sub-delegation is permitted. (g) Effect of taking Advice, Opinion or Assistance.

(i) Acting under dictation: The Law vests powers in Executives in the hoped and trust that the Executives in whom powers are vested themselves/himself will exercise their/his powers. However, very often, some superior officer dictates the sub-ordinate officer and as such, in the circumstances, the powers are exercised under the dictation of a superior authority. Reasons for Executive, vested with powers, exercising his powers under dictation of some one else, are many and innumerable. But instead enumerating the reasons, suffice it would be to record that once it is found that the Executive has acted under the dictation of some one else, his exercise of power will be vitiated for the said reason.

Before proceedingJurther, the distinction between (1) seeking 'Advice' or 'Opinion' and (2) 'acting under the dictation' must clearly be understood, howsoever thin it may be. In seeking 'Advice' or 'Opinion' of Superiors, Advocate and taking assistance of some one else, the one taking the 'Advice' or 'Opinion' or 'Assistance' is guided by the advice and forms his opinion independently. For example, the Government gives Directions to the Executives. The Executives are expected to follow those 'Government Directions'. But the Executive, while 'forming' his 'opinion' or 'decision' undoubtedly take into consideration the said 'Government Directions' but surely, will decide the issue/case (i) on the facts and circumstances of the case on hand AND if necessary, (ii) record the evidence and (iii) 'Hear' the parties. On the other hand, if the Executive disposes of the case or forms his opinion simply on the 'Government Directions', his 'Order'/'Opinion' will be treated as passed under dictates of the Government. It may be noted that when an Executive exercises his powers as per the direction of his superior, really speaking, it is his superior who exercises the powers and not the Executive. Legally speaking, it means that the Executive vested with powers exercises his powers under the dictation of some one else. In Rajgopal Naidu us. State Transport App. Tribunal, AIR 1964 SC 1573, the apex Court observed that it is of the essence of fair and objective administration of law that the decision of the judge or the tribunal must be absolutely unfettered by any extraneous guidance by the executive or administrative wing of the State.

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In Commissioner of Police us. Gordhandas, AIR 1952 SC 16, the Police Commissioner empowered to grant license for construction of cinema, granted it but later on cancelled it under the direction of the Government. The cancellation was held to be bad as it was passed under the dictation of the Government. In State of Punjab us. Hari Kishan, AIR 1966 SC 1081, the Application for Cinema License was made to the Licensing Authority. The Licensing Authority, in his turn, forwarded it to the Government who rejected the Cinema license. The rejection was under the dictation of the Government. In Rambharosa Singh us. State of Bihar, AIR 1953 Pat. 371, the Government issued certain direction and the District Magistrate acted upon the same. The High Court set aside the order as it was under the dictation of the Government. Whereas in Orient Paper Mills us. Union of India, (1970) 3 SCC 76, the apex Court set aside the Order on the ground that Order passed by the Deputy Superintendent was in accordance with the directions issued by the Collector. In Purtabpore us. Cane Commissioner of Bihar, (1969) 1 SCC 308, the Cane Commissioner exercised his powers under the advise of the Chief Minister. The Order was under the dictates of the Chief Minister. (ii) Non-application of mind: When discretion is vested in an Executive, he has to exercise his discretion after applying his mind on the facts and circumstances of the case on hand. If that is not done, it amounts to non-application of mind. The reasons of not applying the mind to facts and circumstances of the case on hand may be many and multiple. For example, the Executive acts mechanically or without due care and caution or without a sense of responsibility. Whatever may be the reason but if it falls in any of the case, the whole action of the Executive falls to the ground. As such, it is necessary for the Executive to take into consideration all the facts and circumstances of the case on hand before him.

In (1) Emperor us. Sibnath Banarji, AIR 1945 PC 156 and (2) Jagannath us. State of Orissa, AIR 1966 SC 1140, the competent authorities passed the detention Order mechanically, on the recommendation and without application of mind. The Privy Council in first case and the Supreme Court of India in the second case, quashed the Orders. In Barium Chemicals Ltd. us. Company Law Board, AIR 1967 SC 295, the Central Government passed the order of investigation because such powers were vested with the Government if there were circumstances suggesting fraud on the part of the management. The Supreme Court held that the Government must first form the 'Opinion', further the Government must state the circumstances which led it to form the 'Opinion'. If Government does not state the circumstances (which led it to form the 'Opinion'), the Court cannot examine and find out whether any material was before the Government and whether it applied its mind to the material before it to form its 'Opinion'. This ruling clearly lays down that if the Executives do not state the circumstances on the basis of which he formed the 'Opinion', the formation of opinion by Executive will clearly be a case of non-application of mind. (iii) Imposing fetters on exercise of discretionary powers: It can also be referred to as 'imposing fetters on discretion by self-imposed rules of policy'. It means if a general rule is pronounced, it must be applied to all without any exception and without any regard to the facts of the case. Or so to say, if discretion is vested in an administrative agency and no restrictions are imposed on the exercise of that discretion, the Court will not interfere with the exercise of that discretion.

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In Gell us. Teja Noora, (1907) 27 ILR Bom. 307 and Keshauan Bhaskaran us. State of Keral, AIR 1961 Ker. 23, the Courts took the view that the Authority cannot impose fetters on its discretion by announcing rules of policy to be rigidly applied. Because if a general rule is pronounced, it must be applied to all without any exception and without any regard to the facts of the case. In Tinker us. Wandsworth Board of Works, (1858) 27 LJ Ch. 342, the Court held the action of Sanitary Authority laid down that all cesspits and privies should be replaced by water closets. The Court held such a direction (of Sanitary Authority) bad as it did not allow the Officer to consider each case on merits. In other words, the Sanitary Authority placed fetters on the powers of Officer to decide each case on its own merits. In R us. Metropolitan Police Commissioner, (1968) All ER 763, the rule of the Chief Constable was held to be bad because it was rigid inasmuch as it laid down that no prosecution (without any exception) be instituted against the anti-social class of elements. In Rama Sugar Industries us. State of Ap, (1974) 1 SCC 534, by enactment, tax was imposed on the purchase of sugarcane. However, the Government was vested with powers to exempt any new sugar factory from payment of tax for a period of three years. The Government, however, by policy decided to extend such exemptions only to the co-operative sector. The Constitution Bench, by majority of 3:2, upheld the government decision of tax exemption only to co-operative sector. The minority view appears to be in consonance with the general legal principle that no fetters can be imposed on discretionary powers. In the case, the free and unrestricted discretion given by the Statute is fettered by limitations which have nowhere been enacted. Whereas, generally speaking, an authority entrusted with discretion must not, by adopting a rule or policy, disable it from exercising its discretion in individual cases. In Jit Singh us. State of Punjab, AIR 1979 SC 1034, under Rule 14, six years of experience was laid down as the eligibility criteria for granting promotions in the Promotion Rules. However, as there were many vacancies and candidates with such minimum experience were not available, the Government, in general, reduced the minimum experience from six years to four years. This was challenged by some employees. The High Court and then the Supreme Court rejected the challenge on the ground that the employees (challenging the modification) were not affected as they were not entitled to the promotion and therefore, not aggrieved and hence they can have no cause of action to challenge the said provision. However, with regard to challenge, the Court observed that relaxation contemplated under the Promotion Rules was restricted by consideration of "undue hardship" in any "particular case" -meaning thereby that the relaxation granted was not good. In J. C. Yadau us. State of Haryana, AIR 1990 SC 857, the Haryana Service Rules of 1961 provided promotion of Engineers (of Public Health Branch) from Class II to Class I. Rule 6 provided that no person shall be promoted to Class-I, unless he has completed eight years' service in Class II. Rule 22 conferred (discretionary) powers on Government to relax the condition (given in Rule 6) in any particular case. The Selection Committee recommended, for promotion, the names of certain officers who had not fulfilled the condition given in Rule 6. On the said recommendation, the said Officers came to be promoted upon Government granting general relaxation. The said promotions finally came to be challenged in the apex Court. The apex Court did consider its ruling in Jit Singh's case (AIR 1979 SC 1034) and took the view that, in that case, the Supreme Court was not required to consider the Law because the employees in that case were not entitled to the promotion. But in the case on hand, the apex Court (contrary

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to its observation in Jit Singh's- AIR 1979 SC 1034) HELD that it is permissible for the Government to dispense with or to relax the requirement of any of the rules to the extent and with such conditions as it may consider necessary for dealing with the cases in just and equitable manner. The object and purpose of conferring this power on the Government is to mitigate undue hardship in any particular case and to deal with a case in a just and equitable manner. If the Rules cause undue hardship or operate in any inequitable manner, the State Government has the power to dispense with or to relax the requirement of the Rule. This ruling of the apex Court does not appear to be correct because Rule 6 in the case on hand, Government was conferred with the discretion to be exercised in individual cases, after considering the facts and circumstances of each case. Whereas, by ruling it is permissible for the Government to dispense with or to relax the requirement of any of the rules to mitigate undue hardship in any particular case. The apex Court, by its said ruling, has carved out an exception in the exception rule, leaving no leg room for the Executive to use its discretion in any particular case although the Rules have conferred on it the discretion. It is true that it does not mean that the Government cannot lay down a principle or adopt a policy. All that is necessary is that the said principle or policy must not take away discretion vested under the Rules. In Gurbaksh Singh us. State of Punjab, AIR 1980 SC 1632, the apex Court reversed the impugned ruling of Full Bench of the Punjab High Court (Gurbaksh Singh us. State of Punjab, AIR 1978 Punjab 1) in which the Punjab High Court had laid down certain principles for rejecting the Anticipatory Bail Applications made under Section 438 of Code of Criminal Procedure. According to apex Court, there is no risk involved in entrusting a wide discretion to the Court of Session and High Court in granting anticipatory bail because firstly, there are higher Courts manned by experienced persons, secondly, their orders are not final but are open to appellate or revisional scrutiny and above all because, the discretion has always to be exercised by Court judicially and not according to whims, caprice or fancy. On the other hand there is a risk in foreclosing the categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges. Further, according to apex Court, (1) generalization on matters which rest on discretion and (2) the attempt to discover formulae of universal application, would frustrate the very purpose of conferring discretion. Because no two cases are alike on facts and therefore, a little free play in the joints for that reason has to be allowed if conferment of discretionary power is to be meaningful. (Iv) Acting mechanically; Acting under dictates of other-one, non-application of mind and acting mechanically are the species of same genesis -feathers of same bird! In the cases of 'acting under dictation, obviously, the concerned Officer acts on the advice of his Superiors whereas, in the cases of 'acting mechanically', the concerned Officer leaves it to his Subordinates. There is no question of subordinate dictating the Officer and hence it cannot be said that he has acted under the dictation of some one else. As such, necessarily, the category of "acting mechanically" is disjoined from the category of 'acting under dictation' and put in the separate category. Indeed the result is the same; there is total non-application of mind. If the authority entrusted with the discretionary power exercises its power in causal manner without due care and caution, the authority is taken to have acted mechanically and without applying its mind and the order passed by it will be held to be bad Jagannath us. State of Orissa, AIR 1966 SC 1140; G. Sadanandan us. State of Kerala, AIR 1966 SC 1925 and Barium Chemicals Ltd. us. Ran a, AIR 1972 SC 591.

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In Meruger Satyanarayan us. State of AP., AIR 1982 SC 1543, the District Magistrate, the Detaining Authority, completely abdicated his authority to his subordinates. His subordinates put up the papers and he simply signed them. The order passed by him was held to be bad, as being mechanically passed. Where an administrative decision relating to punishment is arbitrary, the Court is confined to Wednesbury's principle as a secondary reviewing authority. The Court will not apply proportionality as primary reviewing courts because no issue of fundamental freedom or of discrimination under article 14 of the Constitution of India applies in such context. Om Kumar us. Union of India. (2001) 2 SCC 386. (v) Sub-delegation

(a) (b) (c) (d) (e)

Meaning. Object. Caution. Legal Philosophy. Notable Distinction. (f) Whether Sub-delegation is permitted. (g) Effect of taking Advice, Opinion or Assistance. (a) Meaning - When Statute confers some 'Discretionary Powers' on executive authority and the said executive authority further delegates those powers to another subordinate authority or agency, it is called as 'Sub-delegation'. (b) Object - In fast moving world of today, the Executives too are overburdened. Therefore, to assist them, sub-delegation is permitted purely for the reasons of expediting the official business. (e) Caution - The Statutes delegate on Executives (1) the 'Legislative Powers' and (2) the 'Discretionary Powers'. It should, therefore, clearly be noted and the delegation of 'Discretionary Powers' must not be confused with delegation of 'Legislative Powers'. The two must be clearly identified. The delegation of 'Legislative Powers' is discussed under the topic of "Delegation of Legislative Powers", whereas only the delegation of 'Discretionary Powers' is undertaken under this heading. (d) Legal Philosophy - When Law places "Trust and Confidence" in the 'dudgement and Discretion" of any particular Executive and vests in him the 'Discretionary Powers', then it is necessary and essential that the very same Executive exercises his 'Discretionary Powers'. Therefore, when the Executive sub-delegates his powers, it is nothing but the breach of "Trust and Confidence" placed in him by Law in his 'dudgement and Discretion". (e) Notable Distinction - It may be noted that in (1) 'acting under dictation', (2) 'acting mechanically' and (3) Sub-delegation, the Executive vested with powers does not himself exercise his powers but allows "someone else" to exercise them. However, in the cases of (1) 'acting under dictation' and (2) 'acting mechanically', the Executive vested with powers, although factually allows someone else to exercises his powers, nevertheless, he claims to act himself and puts his signature by way of his approval. Whereas in the case of Sub-delegation, the Executive vested with powers, officially

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delegates his powers and it is the 'Delegatee' who then independently exercises the powers and passes the order under his own signature without any reference to the Executive, in whom originally powers were vested. (f) Whether Sub-Delegation is Permitted - As recorded earlier, "Law places "Trust and Confidence" in the '~udgement and Discretion" of any particular Executive and vests in him the 'Discretionary Powers' then it is necessary and essential that the very same Executive exercises his 'Discretionary Powers'. Therefore, when the Executive subdelegates his powers, it is nothing but the breach of "Trust and Confidence" placed in him by Law in his '~udgement and Discretion". It means that the Executive vested with 'Discretionary Powers" cannot sub-delegate his powers, unless, he is further expressly vested with powers of sub-delegation. This in its turn means that if the Executive is not expressly vested with the powers of sub-delegation and yet grants Subdelegation then, in that case, the sub-delegation is bad and illegal. Even if subdelegation is purely for the reasons of expediting the official business yet it is invalid if sub-delegation is not expressly vested in the Executive granting the sub ·delegation. It may, however, be noted that the maxim does not embody the rule of law. It merely lays down a rule of construction of a Statute. In Union of India vs. P.K. Roy, AIR 1968 SC 85, the Court took the view that Legal maxim "delegates non potest-delegare" has no application if the Executive vested with statutory powers of exercising discretion has and retains in his hands in substantial degree the general control over the activities of the sub-delegatee. In the eyes of Law it is not the sub-delegation. In Barium Chemicals Ltd. vs. Company Law Board, AIR 1967 SC 295. the Hon'ble Supreme Court of India observed that looking to the facts and circumstances of each case, the construction that would best achieve the purpose and object of the statute should be adopted. In (1) Alilingham vs. Minister of Agriculture, (1948) 1 All E.R. 780 (2) Ganpati Singhji vs .State of Ajmer, AIR 1955 SC 188 (3) Barmard vs. National Dock Labour Board, (1953) 1 All. E.R. 1113 and (4) Vine vs. National Dock Labour Board, (1956) 3 All E.R. 939 the sub-delegation was held to be bad. (g) Effect of taking Advice, Opinion, Assistance etc. - It is already recorded above that Law permits seeking of 'Advice' or 'Opinion' of Superiors, Advocate or someone else. The one taking the 'Advice' or 'Opinion' or 'Assistance' must form his opinion independently. In Pradyat Kumar vs. Chief Justice of Calcutta, AIR 1956 SC 285, the Chief Justice of Calcutta High Court directed the Puisne Judge to hold Domestic Enquiry against the Registrar whereupon the Puisne Judge held the Domestic Enquiry and submitted his Findings and Report to him. After considering the Report and giving Show Cause Notice, the said Registrar was dismissed. The Supreme Court held that it was not a case of sub-delegation of powers by the Chief Justice but merely of employing a competent officer to assist him.

EXPLANATION - IV ABUSE OF DISCRETION (i)

Malafide or bad faith. (a) Introductory. (b) Meaning. (c) Types.

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(A) (B)

(ii)

(iii)

(iv) (v)

General Malice in Facts (C) Malice in Law (D) Express Malafide (E) Implied Malafide (F) Prima-facie case necessary for allegation (G) Burden of Proof (H) Burden of Proof when shifted Leaving out Relevant Consideration or Considering the 'irrelevant' or 'extraneous' consideration. (A) What it means? (B) When statute lays down the 'considerations' to be taken into account. (C) When statute does not lay down the 'considerations' to be taken into account. (D) Difficulty in identifying the 'Relevant Consideration'. (E) When decision is based partly on relevant consideration and partly on irrelevant considerations. (a) Mixed Consideration (b) Subjective Satisfaction (c) Objective Satisfaction Unreasonableness Colourable exercise/'improper purpose' Exceeding Jurisdiction.

(i) Malafide or Bad Faith

(a)

Introductory - It is said, "Every power tends to corrupt AND absolute power corrupts absolutely". The loud and clear message is that Law must safeguard the 'corrupt' use of powers, particularly, the use of 'Discretionary Powers'. Necessarily, therefore, it is also always implied and implicit that the use of power must be bona-fide or, so to say, the Executive must use his powers for the purpose for which they are conferred. And if the Executive fails, the Court must check it. (b) Meaning - The 'malafides' is seen as the facet of the doctrine of 'ultra-vires'. It means 'ill-will' 'dishonest intention' or 'corrupt motive'. The use of power is Mala-fides or in bad-faith if it is exercised for personal vengeance against the person affected by the use of power. The expression 'bad-faith' is sometimes described as the 'wrong motive' or the 'abuse of powers'. But all these expressions, in an administrative context, ought to be reserved for the cases of 'Dishonesty' or 'Fraud'. Indeed, it is always difficult to detect 'Fraud' or 'Dishonesty' unless it is a case of deliberate excessive exercise of powers. The difficulty does not end here, it extends to categorizing of excessive use of power and goes further to recognizing it in a particular case.

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The Supreme Court of India in Jaichand us. West Bengal, AIR 1967 SC 483, has held that 'mala/ides' means exercise of statutory power for purpose foreign to those for which it is, in law, intended. However, largely, in practice, the term malafides would include those cases where the motive force beyond an administrative action is personal animosity, spite, vengeance and personal benefit to oneself. (c)

Types of Malafldes

(A) General - The mala/ide or malice may be the (1) malice in FACT or (2) malice in LAW. So also the malafide or malice may be the (3) EXPRESS malafide or (4) IMPLIED malafide. (8) Malice in Fact - Malice in fact means an actual malicious intention on the part of the 'Wrong-Doing' Executive. The malice in fact is reflected in the proceedings based on wrongs independent of contract. The malice in fact may also mean an act committed due to personal spite, corrupt motive or malicious intention. In Pratap Singh us. State 0/ Punjab, AIR 1964 SC 72, the Petitioner, the Civil Surgeon, proceeded on leave preparatory to retirement. The leave was initially granted but revoked subsequently. The Petitioner was then suspended, chargesheeted and after Domestic Enquiry, he was removed from the services. The Petitioner alleged that his removal was at the instance of the Chief Minister to wrack the personal vengeance. The apex Court upheld the contention of the Petitioner as it held that the Petitioner's removal was for malice in fact. In Rowjee us. Andhra Pradesh, AIR 1964 SC 1962, under the direction of the Chief Minister, the State Road Transport Corporation prepared a Scheme for nationalization of certain transport routes. It was alleged that the Chief Minister and certain private operators were political opponents of the Petitioners and as such, for settling the political agenda, the Chief Minister had directed his Executive to frame the impugned scheme. Therefore, the scheme was malafide. The apex Court accepted the challenge as the allegation remained unrebutted. In State 0/ Punjab us. Gurdial Singh, AIR 1980 SC 319, it was alleged that the Land Acquisition Proceedings were initiated at the instance of the Minister as the owner was his relative. The Court upheld the challenge because the allegations remained unrebutted. In G. Sadanandan us. State 0/ Kerala, AIR 1966 SC 1925, it was pleaded that the Deputy Superintendent of Police had made false report to benefit his relative. No affidavit in rebuttal was filed. It was held that the order of detention of Petitioner was maiafide and illegal. In Shiuajirao Patil us. Mahesh Madhau Gosaui, AIR 1987 SC 294, the daughter of Chief Minister of Maharashtra had appeared for M.D. Examination. The failed students moved the High Court alleging that the examination was conducted at the behest of the Chief Minister. The Chief Minster had declined to appear before the Public Enquiry Commission nominated by the Justice of the Bombay High Court. Apparently, the Chief Minister, holding high public office, did not believe that 'Caesar's wife be above suspicion'. The apex Court observed that where such situations cry out the Courts should not and cannot remain mute and dumb. (C) Malice in Law - When Wrongful act is done (1) intentionally, or (2) without just cause or excuse or (3) for want of reasonable or probable cause, the Courts infer malice in law - Venkataraman us. Union of India AIR 1979 SC 49. The malafide exercise of power thus only means exercise of statutory powers for purposes foreign to

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those for which it is in law intended - (1) Jaichand us. State ofW.B. AIR 1967 SC 483, (2) Barium Chemicals Ltd. us Company Law Board, AIR 1967 SC 295, (3) Chartered Bank us. Employees' Union, AIR 1960 SC 919, (4) Somauanti us. State of Punjab, AIR 1963 SC 151. In Collector of Allahabad us. Raja Ram Jaiswal, AIR 1985 SC 1622, the Petitioners had a plot of land in the vicinity of campus of Hindi Sahitya Sammelan, Prayg. The Petitioners wanted to construct and start a cinema theatre. The Hindi Sahitya Sammelan objected it but the Petitioners were granted the certificate. Thereupon. the Hindi Sahitya Sammelan moved the Government to acquire the said plot of land. The Government then issued the notification for acquiring the said plot of land of the Petitioners. The Petitioners challenged the said Government Notification on the ground of malafide. The Court upheld the challenge because the 'Acquisition Process' was vitiated by legal malafides. In Express Newspapers (P) Ltd. us. Union of India, AIR 1986 SC 872, the Central Government had issued Notices of forfeiture of the Lease, re-entry on the Lease Property and Demolition of Express Buildings at Bahadurshah Zafar Marg, New-Delhi. The said Notices were challenged, being wholly malafide. It was contended that during the Emergency Period, the Indian Express had displayed exemplary courage in exposing the authoritarian trend of the Government of the Day and constituted an act of personal vendetta. The Notices were set aside. (D) Express Malafide - When malafide is ex-facie clear or when malafide looms large on the face of record. The express malafide is also called as malice in fact. Therefore, discussion on malice in fact be read over here. (E) Implied Malafide - Unlike express malafide, the implied malafide does not loom large on the face of record and in order to infer, one is required to interpret the statutes under which the Executive seeks to exercise his powers and in doing so he acts maliciously. It therefore shows that implied malafide is the same thing as the Malice in law. (F) Prima-Facie case necessary for allegation of Malafide - Since allegations of malafide are of a serous nature, it is necessary and essential that the allegations are substantiated with cogent materials making out the malafide. It is for the Petitioner to establish the prima-facie case of malafides (1) Keshab Roy us .State of WB., AIR 1972 SC 926 (2) Tara Chand us. Municipal Corpn. Delhi, AIR 1977 SC 567 (3) Kedar Nath us. State of Punjab, AIR 1979 SC 220 (4) Mujeeb-UI-Rehman us. Gouernment of J&K, AIR 1984SC 1587 (5) Sukhwinder Pal us. State of Punjab, AIR 1982 SC 65. (G) Burden of Proof - The ordinary rule of Law of Evidence is always that the one comes to the court must prove it. The burden of proof is undoubtedly very heavy (1) Express Newspapers (P) Ltd. us. Union of India, AIR 1986 SC 872 (2) Shiuajirao Patil us. Mahesh Madhau Gosaui, AIR 1987 SC 294 (3) Pratap Singh us. State of Punjab, AIR 1964 SC 72 (4) Shiuajirao Patil us. Mahesh Madhau Gosaui, AIR 1987 SC 294 (5) Tara Chand us. Municipal Corpn. Delhi, AIR 1977 SC 567 (6) E.P. Royappa us. State of T.N., AIR 1974 SC 555 (7) Jiwani Kumar Paraki us. Collector, AIR 1984 SC 1701. (H) Burden of Proof when shifted? - The burden of proof is not shifted UNLESS it is shown to the Court that the authority vested with powers has taken into account the circumstances, events or matters wholly extraneous to the purpose for which the power was vested or that the proceedings were initiated for satisfying a private or personal

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grudge, Pratap Singh us. State of Punjab, AIR 1964 SC 72. AND once the prima-facie case is made out, the mere DENIAL by filing counter affidavit will not suffice to take away the case of malafide. (ii) Leaving Out Relevant Consideration or Considering The 'Irrelevant' or 'Extraneous' Consideration

(A) What it means? It is settled law that the Executives or the Administration vested with 'Discretionary Powers' while exercising their powers as such, must take into consideration only the relevant consideration. Nothing less, nothing more. It means that (1) No failure of taking into consideration the relevant factors or (2) 'Extraneous' or 'irrelevant or factors' must not be taken into consideration. In State of UP us. Raja Ram Jaiswal, AIR 1985 SC 1108, the apex Court held that the decision of administrative authority is void if it is not based on relevant and germane considerations. The consideration will be irrelevant if there is not reasonable connection between facts and grounds on which decision is taken. In Roberts us. Hopwood, (1925) AC.578, the Borough Council were empowered by statue to pay to their employees "such salaries and wages as they may think fit". The Council paid wages considerably in excess of the general level of wages prevailing in the District. The District Auditor disallowed wages in excess of 'general level of wages' prevailing in the District and recovered it from the Funds of the Councillors who had voted for the decision. This was challenged in the Court whereupon the House of Lords upheld the decision of the District Auditor because the Councillors had excluded those elements which they ought to have taken into consideration in fixing the sum which could fairly be called a 'Wage'. It was held that a local authority having power to pay "such wages as it may think fit" was bound to exercise its discretion reasonably and not unreasonably. For the present, it may be noted that the 'relevant consideration was "the sum which could fairly be- called a 'Wage" but the same was not taken into account. In Dwarkadas us. State of J&K, AIR 1957 SC 164, the Order of "Preventive Detention" was based on the alleged smuggling of three "essential commodities", Cloth, Zari and Mercury. On facts, the Court found that Cloth and Zari were not the "essential commodities" and there was no material to show that there was substantial smuggling of Mercury. It may be noted that the 'relevant factor' - namely, whether it was smuggling of 'essential goods' or not -was not taken into consideration. The order of detention was set aside. In Rampur Distillery us. Company Law Board, AIR 1970 SC 1728, the Company Law Board refused to approve renewal of Managing Agency on the ground that the Managing Director of the Agency was guilty of misconduct in 1946-47. The apex Court held that no doubt the past record was the 'relevant consideration' but "the present activities of the Directors" were also equally 'relevant consideration'. The Company Law Board not having taken into account other relevant consideration, the "present activities of the Director", its refusal was invalid for "Leaving out the relevant consideration". In Asha Deui us. K. Shiuraj, AIR 1979 SC 447, the detention order was based on the 'Confessional Statements' of the Detenue. But before the detention order was passed, the said Confessional Statements were retracted by the Detenue. The detention order

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was held to be invalid because it was passed 'Leaving out the relevant consideration', namely, the retraction of the confessional statements.

(8) When Statute lays down the 'considerations' to be taken into account VERY often, the statutes vesting 'Discretionary Powers' itself prescribe the 'considerations' which must be taken into account by the administrative authority vested with the 'Discretionary Powers'. The statutes very often state, like, "regard shall be had to" or "must have regard to", etc. In such cases, it is incumbent upon the administrative authority to take into account all the specified 'consideration'. In (I) Ram Manohar Lohia vs. State of Bihar, AIR 1966 SC 740 (2) R. L. Arora vs. State of u.P., AIR 1962 SC 764 (3) Rohtas Industries Ltd. vs. Agarwal, AIR 1969 SC 707 (4) Sant Raj vs. O.P. Singh, AIR 1985 SC 617 the apex Court clearly laid down that where the 'Discretionary Powers' are required to be exercised on the considerations stated in the statute then the authority must take them into account. But when the Authority takes into account the matters which are unconnected or which are irrelevant to those stated in the statue then it is taken as abuse of discretionary powers and the action is declared to be invalid and void. In A. Sharmugham vs. S.K. VS. Ltd. AIR 1963 SC 1626, the regional transport authority had invited application for granting 'Permits' to transporters having experience, branch office in the routes, residence etc. The authority did not take into consideration the branch office in the route while refusing to grant the 'Permit'. The apex Court held the refusal invalid on the ground that the authority left out some relevant (having branch office in the route) consideration. In Berium Chemical vs. Company Law Board, AIR 1967 SC 295, the Company Law Board was vested with powers of ordering investigation under Section 237 of the Companies Act, 1956 on the specified grounds. But when the Company Law Board ordered an investigation on the grounds other than specified in the Act, its order was held to be invalid and void. In Brij Mohan vs. State of Punjab, AIR 1983 SC 948, the Government was vested with powers to compulsory retire its employees on consideration of employee's last 10 years past record. When Government ordered compulsory retirement on consideration of 20 years' past service record, the said order was held to be invalid because the Government took into account some irrelevant considerations. (C) When Statute does not lay down the 'considerations' to be taken into

account Where the statute does not lay down the 'considerations' to be taken into account, yet the Court examines whether any relevant considerations has been left out. In Shri Sitaram Sugar Co. Ltd. vs. Union of India, AIR 1979 SC 1277, the Government was required to pay compensation for levy on sugar under Section 3 (3-C) of the Essential Commodities Act, 1955 "having regard to" the matters mentioned in clauses (a) to (d) of sub-section 3-C of the Act. The apex Court held that "having regard to" cannot be taken to mean "having regard only to". These words are not a fetter; they are not words of limitations, but of general guidance to make an estimate. Therefore, it was reasonable for the Government to consider the other relevant factors which may have been considered by any reasonable person, placed in the position of the Government. (D) Difficulty in identifying the 'Relevant Consideration' It is indeed difficult to find out whether relevant factors have been omitted or whether irrelevant factors have been considered. Precisely for this reason, it is necessary for the administrative authority

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to give 'REASONS' when it exercises its 'Discretionary Powers' . Needless, therefore, to record that if detailed reasons are recorded in the order itself, then the Court exercising its review powers can see whether the relevant factors have been considered or not and that the order is not based on irrelevant considerations. In Dhirajlal Girdharilal us. Commissioner of IT, AIR 1955 SC 271, the apex Court held that where the tribunal acts partly on relevant materials and partly on irrelevant materials then it is impossible to say as to what extent the Tribunal's mind was affected by the irrelevant material and hence Tribunal's finding are vitiated. (E) When decision is based partly on relevant consideration and partly on irrelevant considerations (a) Mixed Consideration: The Hon'ble Supreme Court of India has also taken the view that where quasi-judicial body decides a matter and some of the factors on which it bases its decision are irrelevant its decision may still be upheld if the court feels that it could be sustained on the basis of remaining factors. In 20ra Singh us. J.M. Tandon, AIR 1970 SC 1537 it was held that if amongst the other reasons given by the quasijudicial authority, some are extraneous yet if the rest of the reasons are relevant and could be considered sufficient, the conclusions of the quasi-judicial body would not be vitiated. The Court draws a distinction between subjective satisfaction and objective satisfaction. If the decision is based on objective satisfaction and if it can be sustained on the rest of evidence, the decision can be upheld. (b) Subjective Satisfaction: In cases where it is essential that a very strict view of law must be taken then subjective satisfaction is uncalled for and cannot be permitted. The subjective satisfaction cannot be applied in the cases of detentions because if detention order is passed partly on relevant considerations and partly on irrelevant considerations, the reviewing court cannot ascertain as to what extent the mind of the detaining authority was affected by the irrelevant consideration. In Shibban Lal us. State of u.p AIR 1954 SC 179, the detention order was passed on two grounds. However, the authority revoked the detention on one ground but not on the other ground. Therefore, the Petitioner continued to be under detention. The Court observed that to say that the other ground, which continued to remain was quite sufficient to sustain the order, would be to substitute an objective judicial test for the subjective decision. In State of Gujarat us. Chamanlal Soni, AIR 1981 SC 1480, the detention order was passed under Section 5-A of COFEPOSA. The detention order was based on several alleged smuggling activities, on each of which one could be detained. Therefore, even if one of the grounds is irrelevant, extraneous or non-existent, an order cannot be said to be invalid or inoperative. However, the Gujarat High Court set aside the order of detention. The apex Court, without going into the constitutional validity of Section 5-A of COFEPOSA, reversed the ruling of the Gujarat High Court and upheld the detention order. It may be noted here that each activity of the detenue was a separate and independent ground of detention. In other words, if order of detention is (1) not based on various activities or (2) if each activity by itself is not a separate and independent ground of detention, then even if one of the grounds is vague, extraneous, irrelevant or non-existent, the order of detention cannot be held to be legal and valid and requires to be quashed and set aside.

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(c) Objective Satisfaction: If the CONCLUSION of the authority is on objective satisfaction but ACTION is on relevant and irrelevant considerations. the reviewing court may apply the 'objective test' and decide the validity of the impugned order of the authority. In State 0/ Maharashtra us. Babulal Takkamore, AIR 1967 SC 1353, the government superseded the municipality on two grounds jointly and severally. The held that one ground was extraneous but the ground was such that on that ground alone the government could supersede the municipality. In Pyarelal Sharma us. Managing Director, AIR 1989 SC 1854, the termination order was based on (1) unauthorised absence and (2) taking active part in politics. It was proved that no notice was issued for taking active part in politics. However, the apex Court upheld the termination because that could be supported on the ground of unauthorised absence. In Madhukar us. Hingwe, AIR 1987 SC 570, the apex Court held that a government servant on his retirement can continue his allotment of house if he is evictee also because, under rules, the allotment could be made to a person who is evictee as well as a government servant. (iii) Unreasonableness

The term 'unreasonable' is very imprecise and indistinct term inasmuch as it includes (i) 'irrelevant or 'extraneous consideration', (ii) collateral purpose, (iii) 'improper purpose', (iv) 'colourable exercise of powers' (iv) 'mala/ide' exercise of powers and so on In fact, it is the species of (iv) ultra-uires. Therefore, the discussion on these 'heads' can beneficially be read over here. The term 'Unreasonable' being imprecise, no exact meaning can be ascribed. But the term 'REASONABLE', in law, has the meaning of reasonable in regard to those circumstances in which the 'Doer' of the act is called upon to act reasonably. Whereas the term 'unreasonable' can be explained thus: •

the decision of the authority is 'unreasonable' if it is based on 'irrelevant or extraneous considerations or • the exercise of power is mala/ide or improper for collateral purposes or • there is colourable exercise of powers. In Short vs. Poole Corporation, (1926) Ch. D. 66, the Court explained by example of "the red haired teacher, dismissed because she had red hair". It is so unreasonable that no man of ordinary prudence would do it.

If the Authority is vested with 'Discretionary Powers', it must exercise it by itself. But that apart. What is relevant and material, for the present, is that the 'Powers' must be exercised 'reasonably' OR, so to say, MUST NOT be exercised 'unreasonably'. Otherwise, there will be an abuse of power and the action will be invalid, being ultra-vires. While it is un-denying that power must be exercised reasonably, the doctrine that powers must be exercised reasonably has to be reconciled with the doctrine that the Court must not usurp the discretion of the public authority which the Parliament has vested in it. Necessarily, it means that the Court should not sit in appeal over the decisions of the administration and should not substitute its own decision. One 'Discretion' cannot be substituted by an another 'Discretion of the Court. If the discretion is the 'subjective discretion' then it is all the more difficult because in that case the Courts do not at all interfere with the discretion of the

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administration. It only means that the ground of attack (that the administrative decision is 'unreasonable') is very weak and delicate and something overwhelming is necessary to prove the 'unreasonableness'. In C.I. T. vs. Radha Kishan, AIR 1957 SC 983 and in M.A. Rasheed vs. State of Kerala, AIR 1974 SC 2249, it was laid down that the Court will interfere only if a decision is so unreasonable that no reasonable man could have even come to such a decision. In Dharangdhara Chemicals vs. State, AIR 1957 SC 893, the Court held that if there is no evidence to justify the conclusions, the Court will interfere with the administrative discretion.

Article 14

of the Constitution of India guarantees equality before law and equal protection of law. However 'reasonable' classification is permission. Therefore, in (1) E.P. Royappa vs. State of TN, AIR 1974 SC 555, (2) Meneka Gandhi vs. Union of India, AIR 1978 SC 597, (3) R.D. Shetty vs. International Authority, AIR 1979 SC 1628, (4) Ajai Hasia vs. Khalid Maujeeb, AIR 1981 SC 487 it was laid down that if clarification is not based on reasonable grounds of distinction, the action will be taken as arbitrary and infringing the Article 14 of the Constitution of India.

Article 19

of the Constitution of India guarantees the Fundamental Rights. But these Fundamental Rights enshrined in the Constitution of India are not in absolute terms and permits 'reasonable' classification. In Chintaman Rao vs. State of M.P., AIR 1951 SC 118, it was laid down that the restrictions imposed on the fundamental rights, enshrined in Article 19 of the Constitution of India, must not be arbitrary or of the excessive nature and go beyond the public interest. CASE LAWS

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(1) Pukhraj vs. Kohli, AIR 1962 SC 1559, (2) Sir Rama Vilas Service (P) Ltd. vs. Chandrasekaran, AIR 1965 SC 107, (3) Bombay Union vs. State, AIR 1964 SC 1617 (4) Prem Kakar vs. State of Haryana, AIR 1976 SC 1474 (5) Hindustan TIn Works vs. Employees, AIR 1979 SC 75 (6) c.I.T. vs. Mahindra & Mahindra, AIR 1984 SC 1182 - the Court cannot sit in appeal over the decision of the administrative authority. Pukhraj vs. Kohli, AIR 1962 SC 1539 -the Court took the narrow view and held that the Court should not sit in appeal over the decisions of the administrative authority and decide whether the administrative decision is reasonable or not. Barium Chemicals Ltd. vs. Company Law Board, AIR 1969 SC 707 -the Court interfered with the administrative decision observing that had the Chairman applied his mind to the relevant facts, he could not have formed the opinion he has formed. Mansa Ram vs. Pathak, AIR 1983 SC 1239 -the Allotment Officer held that the appellant was improperly occupying the premises. This decision of the Allotment Officer was 22 years after the entry of the appellant and 9 years after his retirement from the service. Therefore, the Court interfered with the administrative decision and set it aside. Sheonath vs. Appellate Assistant Commissioner, AIR 1971 SC 2451 the Court interfered with the administrative decision observing that there must be some material on the basis of which reasonable belief can be founded for initiating reassessment proceedings under the Income Tax Act.

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Indian Express Newspappers vs. Union of India AIR 1985 SC 515 - it was contended that imposition of import duty on newspapers was unreasonable and violative of Article 19 of the Constitution of India. The Court held that government did not exercise its powers reasonably and referred back the matter to the Government for deciding it in accordance with the Law. (1) Macropollo & Co. vs. Employees, AIR 1958 SC 1012, (2) Dhirajlal vs. C.I. T., AIR 1955 SC 271 (3) Nottinghamshire County Council vs. Secretary of State (1986) A. C. 240 (4) Council of Civil Service Unions vs. Minister for the Civil Service, (1985) A. C. 374 - the Court can interfere in the administrative decision only if it is perverse. Ranjit Thakur vs. Union of India, AIR 1987 SC 2386 - an army officer was punished for disobeying the order of superior to eat food. He was not only sentenced to one year's R.I. but also dismissed from service and declared to be unfit for civil employment. The Court took the view that punishment was shockingly disproportionate to the quantum of offence and could not be allowed to remain uncorrected in judicial review. (1) State of u.P. vs. Renusagar Power Co., AIR 1988 SC 1737 (2) Rampur Distillery vs. Company Law Board, AIR 1970 SC 1789 (3) Shree Agency vs. Battacharjee, AIR 1972 SC 780 (4) Hind Construction Co. vs. Their Workmen, AIR 1965 SC 917 (5) Secretary of State vs. Tameside Metropolitan Borough Council, (1977) A. C.1014 (6) Smith vs. East Elloe Rural District Council, (1956) A. C. 736 (7) Associated Provincial Picture Houses Ltd. vs. Wednesbury Corpn. (1947) 2 All. ER 680 (8) Lynch vs. Commrs. Of Sewers of City of London, (1886) 32 Ch D 72 - the Court can interfere only if the decision is 'so unreasonable' that no reasonable man could have ever come to it. (1) Jeffs vs. New Zealand Dairy Production and Marketing Board, (1996) 3 All ER 863 (2) Ashbridge Investment Ltd. Minister of Housing & Local Govt. (1965) 1 WLR 1320 - the Court does not interfere unless there is no evidence to justify the decision of the administration.

(iv) Colourable Exercise/'Improper Purpose' The Authority vested with 'Discretionary Powers' for one purpose, when exercises it for altogether different purpose, it is called as the 'colourable exercise of powers'. Obviously when powers are exercised for different purpose than the one exercisable under Statute, then such an exercise is beyond the statute, null, void and having no effect in law. The 'Colourable Exercise' may be latent, patent, direct, indirect, manifest, covert or disguised. In whatever form it might have been used but once it is the 'Colourable Exercise', the Orders stemming from it are null void and inoperative. In Somawanti vs. State of Punjab, AIR 1963 SC 151, the Court observed that if there is a 'Colourable Exercise' of power, the declaration that acquisition was for public purpose will be open to challenge at the instance of the aggrieved party. The doctrine of 'Colourable Exercise' of powers revolves on the 'PURPOSE' of exercising the powers and it does not involve any question of bonafide or malafide. In D.C. Wadhva vs. State of Bihar, AIR 1987 SC 579, a public spirited Professor of Politics challenged the practice of large scale promulgation of ordinances. According to him large scale promulgation of ordinances was fraud on the Constitution of India. The Supreme Court of India

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upheld the challenge and observed that the power to promulgate an ordinance is essentially a power to meet an extraordinary situation and it cannot be allowed to be perverted to serve political ends. It is possible that there may be a situation where it may not be possible for the government to introduce and push through in the legislature because the legislature may have too much legislative business in that particular session or the time at the disposal of the legislature in that particular session may be short and in that event, the Governor may legitimately find it is necessary to re-promulgate the very same ordinance. Where such is the case, re-promulgation of the ordinance may not be open to attack. But otherwise it would be a Colourable Exercise of Power on the part of the executive to continue an ordinance with substantially the same provisions beyond the period, limited by the Constitution, by adopting the methodology of rep-promulgation. The colourable exercise of powers is more or less the same as exercising the powers for 'improper purpose'. In Chertsey U.D.C. vs. Maxinam's Properties Ltd., (1964) 2 All. E. R. 627, a Statute required an Occupier of a Land to obtain a License before he used his land as a Caravan Site. The Authority granting such a License was empowered to impose conditions while issuing the License. This power was used for a purpose not concerned in any way with the use of the land. The Court held the condition to be ultra-vires. It may be noted that the Authority had used its powers for improper purpose or had used its powers for the purpose not concerned in any way with the use of the land. Where Government actions runs counter to good faith, is not supported by reason and law, it cannot but be described as malfides. Equity good conscious and justice require that judicial power be used to set aside such action - Tandon Bros. vs. State of WB, AIR 2001 sc 1866. Malice in law and malice in fact means ill-will or spite towards a party and any indirect or improper motive in taking action. This is sometimes described as malice in fact. Legal malice or malice in law means something done without lawful excuse. In other words, it is an act done from ill feelings and spite - State of AP. vs. Goverdhanlal, AIR 2003 SC 1941. Removal of President of municipal council was based on colourable exercise of powers and thus liable to be set aside - Tarlochan Dev Sharma vs. State of Punjab, AIR 2001 SC 2524. It is not the law that malfides in the sense of improper motive should be established only by direct evidence. It can be shown from the established surroundings factors - Delhi Development Authority vs. UEE Electric Eng. (P) Ltd., AIR 2004 SC 2160.

(v) Exceeding Jurisdiction When statue invests power or authority in any Executive, he cannot transgress the same. If powers are for one rupee, the Executive cannot use it for two rupees. In Calcuta Electricty Supply Corpn. vs. Workers' Union, AIR 1959 SC 722, the management was vested with powers to dismiss a teacher. The management dismissed the Principal. The management obviously transgressed its powers and hence its action was ultra-vires.

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EXPLANATION - V ESTOPPEL

(a) (b) (c) (d) (e)

Meaning When the Rule of Estoppel comes into operation? Whether Estoppel applies to Public Authority? Modern View. Estoppel against a Statute.

(a) Meaning: A person who has misrepresented the fact, relying upon which the other has acted, cannot later on deny those facts. It is so under the doctrine of Estoppel as well as under the Rule of Evidence. The Indian Evidence Act, 1872, under Section 115, embodies the Rule of Estoppel. However, it may clearly be noted, that the Rule of Estoppel is broader than the doctrine embodied in Section 115 because Section 115 is only a 'Rule of Procedure.' In Indira Bai us. Nand Kishore, (1990) 4 SCC 668, the Rule of Estoppel was explained as the Rule of Equity flowing from fairness striking on behaviour deficient in good faith. It operates as check and balance on spurious conduct. By this Rule, a party is precluded from denying the existence of some state of fact which he had previously asserted, and on which the other party, to his detriment, had relied upon. (b) When the Rule of Estoppel comes into operation?: The rule of Estoppel comes into operation when:(1) one party makes assertion ·by words -express or implied from the conduct of the party

making the assertion. But the assertion must be crystal clear and unambiguous. Further, the assertion may have been made innocently, carelessly or, possibly, fraudulently. Later on, when assertion turns out to be untrue, it may be used as 'Defense' but not a 'cause of action'. AND (2) the party acting on the assertion must have suffered some detriment. The rule of Estoppel is the rule of Private Law and not of the Public Law and what is true of a purely private transaction between two individuals may not be true of a transaction between an individual and the State. Therefore, it is necessary to know whether it will apply to Public Authority to prevent it from exercising its Statutory 'Discretionary Powers'. In order to know it, it is necessary to notice the three kinds of Estoppels (1) the Primary Estoppel, (2) the Promissory Estoppel and (3) Proprietary Estoppel. A clear unambiguous statement as to existing facts is referred to as the Primary Estoppel; an assurance that the party estopped will act in a particular way is referred to as the Promissory Estoppel and a statement that confers an equitable right or interest in LAND on the other party is referred to as the Proprietary Estoppel. (c) Whether Estoppel applies to Public Authority?: In Rederieaktebolaget Amphitrite us. The King, (1921) 3 KB. 500, the Court of appeal refused to bind the Crown to an assurance given on its behalf by the British Government. But later on in Robertson us., Minister of Pensions, (1948) 2 All E.R. 767, it was observed that he doctrine (that estoppels, as was propounded in the case of Rederieaktebolaget, did not bind the Crown) had been exploded.

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And, gradually, it has come to be accepted that the Public Authority is bound by a clear and unambiguous assertion or, so to say, it is bound by, what is known as the 'primary estoppel'. But it may be clearly noted here that 'primary estoppel' operates only in a very limited circumstances, namely, where there is clear and unambiguous statement is made and that relates to an existing state of affairs, as distinct from an assurance or promise as to future action. The doctrine of principle of promissory estoppel has been extended to government and public authorities but not to the Statute. Sharma Transport us. Gout. of AP (2002) 3 SCC 322. The Promissory Estoppel is based on equitable principle. A person who has himself misled the authority by making a false statement cannot invoke the principle of Promissory Estoppel. Central Airman Selection Board us. Surendra Kumar Das. (2003) 1 SCC 152. The doctrine of principle of promissory estoppel has been extended to government and public authorities but not to the Statute. Sharma Transport us Gout. of AP., (2002) 3 see 322. The Promissory Estoppel is based on equitable principle. A person who has himself misled the authority by making a false statement cannot invoke the principle of Promissory Estoppel. Central Airman Selection Board us Surendra Kumar Das, (2003) 1 see 152. Thus, rule of primary Estoppel does not apply:(1) if the assertion is wrong in Law. For example, if obtaining a license is a condition precedent under the Statute, the assurance of Officer that no license is required cannot save the person from obtaining a License required under the Statute - Howell us. Falmouth Boat Construction Co., (1952) 2 All. E.R. 278. In Ambala Goods Carriers Put. Ltd. us. Regional Transport Authority, AIR 1977 HP 46, it was held that Estoppel cannot be pleaded against the Statute. (2) to invest powers not vested in the Public Authority. The power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra-uires if it was possible for the donee of a statutory power to extend his power by effecting an estoppel - Ministry of Agriculture & Fisheries us. Mathews, (1949) 2 All E. R. 724. (3) to minors - Leslie us. Sheil, (1914) 30 KB 607, Khan Gul us. Lakha Singh, AIR 1928 Lahore 609. (4) against the Statute. (d) Modern View: The Traditional View, in England, was that the doctrine of promissory estoppel cannot itself be the basis of an action. However, the modern view takes clear-cut notice of the fact (in Central London Property Trust Ltd. us. High Trees House Ltd., (1947) 1 K.B. 130) that the doctrine was evolved to prevent injustice wherein a promise is made by a person knowing that it would be acted on by the person to whom it was made in fact was so acted on it. Therefore, it is inequitable to allow the party making the promise to go back upon it. And in England also, the orthodox and narrow view has been given up and it has now come to be accepted that doctrine can be used as a sword - Moorgate Merchantile Co. us. Tw itch ings, (1975) 3 All E.R. 314. INDIA is not left behind. India has not only accepted the Promissory Estoppel but has also recognized it as affording cause of action to the person to whom the promise is made. In the beginning of this century in Municipal Corporation, Bombay us. Secretary of State, (1905) 7 Born. L.R. 27, the doctrine came to be accepted.

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As for the 'Doctrine of Promissory Estoppel', the apex Court in Moti/al Padmpat Sugar Mills us. State of U. P., AIR 1979 SC 621 observed that we do not think that in order invoke the doctrine, it is necessary for the 'Promisee' to show that he suffered detriment as a result of acting in reliance on the 'Promise'. But we may make it clear that if the detriment we mean injustice to the 'Promise' which would result if the 'Promisor' were to recede form his promise, then detriment would certainly come in as a necessary ingredient. The detriment in such a case is the PREJUDICE which would be caused to the 'Promise', if the 'Promisor' were allowed to go back on the 'Promise'. No doubt, this view was not accepted in the case of Jit Ram us. State of Haryana, AIR 1980 SC 1285. In that case, it was resolved in 1916 that the purchasers of the plot in the 'mandi' would not be liable to pay Octroi Duty on the goods imported within the 'mandi'. In 1965 the Municipality decided to levy the Octroi Duty. This was challenged on the ground of promissory estoppel. The apex Court rejected the challenge. But in the case of Union of India us. Godfrey Phillips India Ltd., AIR 1986 SC 806 the larger Bench of the apex Court did not accept the view taken in Jit Ram's (AIR 1980 SC 1285) case and it observed:- "we r nd it difficult to understand how a Bench of two judges in Jit Ram's (AIR 1980 SC 1285) case could possibly overturn or disagree with what was said by another bench of two judges in Motial Sugar Mills (AIR 1979 SC 621) case. If the Bench of two Judges in Jit Ram (AIR 1980 SC 1285) case found themselves unable to agree with the law laid down in MotHal Sugar Mill (AIR 1979 SC 621) case, they could have referred Jit Ram (AIR 1980 SC 1285) case to a larger Bench but we do not think it was right on their part to express their disagreement with the enunciation of the law by a coordinate Bench of the same Court in Motial Sugar Mills (AIR 1979 SC 621)". The Court further observed that the law laid down in Motial Sugar Mills (AIR 1979 SC 621) was correct and did not approve the observations of Jit Ram Jit Ram (AIR 1980 SC 1285) to the extent that they were contrary to the earlier decision. (e) Estoppel against a Statute: It is well settled that there is NO Estoppel against the Statute. In Howell us. Falmouth Boar Construction Co., (1951) 2 All. E.R. 278, it was held that neither a Minister nor any subordinate officer of the Crown can by any conduct or representation bar the Crown from enforcing a statutory prohibition or from prosecuting for its breach. In Excise Commissioner, u.P. us. Ram Kumar, AIR 1976 SC 2237, the apex Court observed that it is now well settled by a catena of decisions that there can be no question of estoppel against the Government in the exercise of its legislative or sovereign. In Ministry of Agriculture & Fisheries us. Mathews, (1949) 2 All E. R. 724 it was observed that the power given to an authority under a statute is limited to the four corners of the power given. It would entirely destroy the whole doctrine of ultra-uires if it was possible for the donee of a statutory power to extend his power by effecting an estoppel.

EXPLANATION - VI PRINCIPLES OF NATURAL JUSTICE Since Chapter 7 of this book is entirely devoted to the subject of Principles of Natural Justice, it is not repeated here.

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CASE LAWS

•

•

•

• •

•

Union of India us. Anglo Afghan Agencies, AIR 1968 SC 718 - under the 'Export Promotion Scheme' published by the Textile Commissioner, the Exporters were entitled to import raw material upto 100% of the export value. The Petitioner, relying on the Scheme, exported goods worth 5 lakhs of rupees but the Textile Commissioner did not grant 'import certificate' for the full amount of the goods exported by him. The government took up the defence that the Scheme was merely executive in nature and that there was no formal contract as envisaged in Article 299 (1) of the Constitution of India and hence it was not binding on the Government. HELD - though the Scheme was executive in nature and even though the promise was not recorded in the formal contract as envisaged in Article 299 (1) of the Constitution of India, nonetheless, it was binding on the Government. Century Spg. And Mfg. Co. us. Ulhasnagar Municipality, AIR 1971 SC 1021- No Octroi Duty was payable for the goods imported in the Industrial Area. The Maharashtra State. later on, published a notification constituting a municipality for certain villages including the 'Industrial Area'. But in pursuance of the agreement with the municipality, no Octroi was payable for a period of 7 years and, with that condition, the Industrial Area was retained within the municipal limits. However, the Municipality sought to levy the Octroi Duty before the expiry of 7 years. The Petitioner challenged the said levy of Octroi Duty but the Bombay High Court rejected the challenge in limine. The apex Court in appeal HELD that the public bodies are as much bound as private individual to carry out representations of facts and promises made by them, relying on which other persons have altered their position to their prejudice. A person who has himself misled the authority by making a false statement cannot invoke the principle of Promissory Estoppel. - Central Airmen Selection Board us. Surendra Kumar AIR 2003 SC 240 Doctrine of Promissory estoppel cannot be invoked against statute - Pune Municipal Council us. Promoters and Builders Assn. AIR 2004 SC 3502 The order of withdrawal of an execution action of land acquisition was made. It was not open to government to justify its decision as law of estoppel. State Gout. Houseless Harijan Employees Assn. us. State of Karnataka, AIR 2001 SC 437 Motilal Padmpat Sugar Mills us. State of u. P, AIR 1979 SC 621- the UP Government announced exemption for NEW industrial units in the State from payment of sales tax for a period for three years. The Government, however, later on withdrew this benefit. The withdrawal of this benefit was challenged in the High Court but without any success. Against it, the apex Court was approached which allowed the appeal and OBSERVED that it is elementary that in a republic governed by the rule of law no one howsoever high or low is above the law. Everyone is subject to the law. Every one is subject to law as fully and completely as any other and the Government is no exception. It is indeed the pride of constitutional democracy and rule law that the Government stands on the same footing as a private individual so far as the obligation of law is concerned: the former is equally bound as the later. It is indeed difficult to see on what principle can a government committed to the rule of law, claim immunity from the doctrine of promissory estoppel.

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•

•

•

•

•

•

•

•

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Whether to permit Auvedic injunction or not is a policy decision. Adjudication on such issues did not fall within the scope judicial review - Sid Pharmacy (P) Ltd. us. Union of India, (2004) 13 SCC 780. The Law is settled that in considering challenge to administrative decision Courts will not interfere as if they are sitting in appeal. In essence the test is to see whether there is any infirmity in decision making process and not in the decision itself. Delhi Deue. Authority us. UEE Electrical Eng. P. Ltd. AIR 2004 SC 2100. Cancellation of selection in its enteritis is unjustified, if there is no specific or categorical finding of widespread infirmities of all. Cancellation of Selection of untainted candidates is not justified - Union of India us. Rajesh (2003) 7 SCC 285. Rxation of tariff or its revision and provisions of cross-subsidy are policy matters outside the purview of judicial review unless it is shown to be illegal, arbitrary or ultra vires the Act -.Association of Industrial Electricity Users us. State of AP, AIR 2002 SC 1361. High Court erred in declining to interfere in the contract in which the Govt. passed the Order without hearing and that the Order was non-speaking Order - Ab. Shakoor us. Union of India, AIR 2002 SC 2423. No judicial Review unless decision is contrary to any statutory provisions or the Constitution of India - BALCO Employees Union us. Union of India, AIR 2002 se 350. The Courts in exercise of judicial review do not ordinarily interfere with the policy decision unless the policy cannot be faulted on the grounds of malfides, unreasonableness, arbitrariness or unfairness etc. The lone fact that a policy may hurt business interest of a party would not justify interference with such policy - lugar Sugar Works Ltd. Vs. Delhi Adm. AIR 2001 SC 144. It is for the parliament to take decision on national education policy, one way or the other. Court cannot take a decision on the good or bad points on an educational policy - Aruna Roy us. Union of India, (2002) 7 see 368. Grounds for judicial reiterated M.e. Mehta us. Union of India, (2004) 6 see 588.

DOD

CHAPTER-10

JUDICIARY - IV (Redress Through Courts)

SYNOPSIS 1. 2.

Introduction Prerogative Writs/ Prerogative Remedies (i) Introductory (ii) History of Writ Jurisdiction in India (iii) Writs under the Constitution of India (iv) Conclusions 3. Constitution of India 4. The Writ jurisdiction of Supreme Court of India = Remedies under Article 32 of Constitution of India 5. The Writs (A) Introductory (B) Writ of Habeas Corpus (i) Meaning and Object (ii) History (iii) When can be issued (iv) When may be refused (v) Conditions for the issuance (vi) Who may apply? (vii) Against whom issued (viii) Procedure (ix) Refusal to obey the Order of Habeas Corpus (x) Successive Applications (xi) Constitution and Habeas Corpus (168)

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(C) Writ (i) (ii) (iii) (iv) (v) (D) Writ (i) (ii)

6.

7.

of Quo Warranto Meaning and Object History When can be issued? Who may apply? When can be refused? of Prohibition Meaning and Object When can be issued? (iii) When cannot be issued? (E) Writ of Certiorari (i) Meaning and Object (ii) When may be issued? (iii) Conditions for the issuance (iv) Grounds of issuance (v) When may be refused? (vi) Against whom lie? (vii) Against whom not lie? (F) Writ of Mandamus (i) History (ii) Meaning and Object (iii) Who may apply? (iv) Against whom it will lie? (v) When can be issued (vi) Against whom it will not lie (vii) Condition-Precedent to the issuance of Mandamus (G) Difference between Certiorari and Prohibition (H) Difference between Certiorari and Mandamus Who can avail of the Writ Remedy? (a) Generally (b) Who is 'Aggrieved Person'? (c) Locus Standi (i) Generally (ii) Traditional View (iii) Modern View When Writ Remedy is refused? (A) Delay and Latches

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(8) Existence of adequate alternative reqledy (i) General (ii) Principle (iii) Violation of Fundamental Rights (iv) Violation of Non-Fundamental Rights (v) Alternative Remedy in case of Mandamus (vi) Alternative Remedy in case of Prohibition (vii) Alternative Remedy in case of Certiorari (viii) Alternative Remedy and Provisions of Article 227 under the Constitution of India (ix) Exceptions (C) Malicious Petitions (D) Misrepresentation of facts (E) Infructuous Petitions and (F)

Res-judicta

8.

Public Interest Litigation (i) General (ii) Nature (iii) Object (iv) Reasons for the Development Case Laws

1. INTRODUCTION Two parties disagree. The DISPUTE (Lis) between them then arises. It can be resolved either by resorting to violence or in a non-violent manner. Even if one of the two parties is Government, the Dispute (Lis) can be resolved in a non-violent manner because Dicey's Theory of 'Rule of Law' must mean that everyone, whether a private citizen or a Public Officer, must be subject to the Ordinary Law and the Ordinary Courts. Resolving Dispute (Lis) against Government in non-violent manner (and not by turning rebellious) can also be justified because the Government Is subordinate to Law AND not the Law Is subordinate to Government. The next question arises is what 'remedies' are available for resolving the Dispute (Lis) against Government in non-violent manner. The answer is simple. The remedies, inter-alia, are: • • • • • •

Self-Help. Common Law Remedies. Parliamentary Remedies. Equitable Remedies. Statutory Remedies AND Extraordinary remedy of Prerogative Writs.

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The remedies like (i) Self-Help, (ii) Common Law Remedies (iii) Parliamentary Remedies (iv) Equitable Remedies and (v) Statutory-Remedies are discussed in detail in the earlier Chapter and hence not repeated here. Therefore, discussion is confined only to extraordinary remedy of Prerogative Writs.

2. PREROGATIVE WRITS/ PREROGATIVE REMEDIES (i)

(ii)

(iv) (v)

(i)

(ii)

Introductory. History of Writ Jurisdiction in India. Writs under the Constitution of India. Conclusions.

Introductory: In England, earlier, it was the Crown's prerogative to know, at all times, everything about the kingdom. Thus, the King wishing to be informed of the wrongdoing would issue a royal prerogative. Thus, it was the King (and King alone) who could issue the Writ. This brings to the sharp-focus the Common Law Expression, the "Prerogative Writ". Wherever the Common Law Language is spoken, the meaning of the expression "Prerogative Writ" is too very well known, yet there is no satisfactory meaning to explain the term succinctly or explicitly. Firstly, the word 'PREROGATIVE' is prefixed to indicate that it was prerogative of the King only. But, with the advent of time, it no longer remained the prerogative of the King, inasmuch as even a "Subject" could apply for the Writ of the King, the Fountainhead of Justice. Therefore, it no longer remained the 'prerogative' of the King but nevertheless the word 'Prerogative' always remained prefixed to the word Writ ever since the expression "Prerogative Writ" came in the vogue. Therefore, call it a "Prerogative Writ" or simply the "Writ" and it means the same thing, the (i) special or (ii) extraordinary REMEDY available to common man against arbitrary exercise of power by public authority or whereby the cause of action begins. History of Writ Jurisdiction in India: The East India Company started its career in India as a Trading Company. By Charter of 24-9-1726, the East India Company established the Mayor's Court at (a) Madras and (b) Bombay and Fort William at Calcutta. This Charter was superseded by Charter of 1753 but in 1765, the East India acquired the Diwani from the Mughal Emperor. On the recommendations of Committee of Secrecy of House of Commons, in 1773, the 13th Geo III c. 63, an Act was passed in March 1773. By this Act of 1773 and after the Regulating Act of 1774, the Supreme Court at Calcutta was established by a Royal Charter of 26th March, 1774. It is said to be the FIRST instrument of Power conferring the right of issuance of prerogative Writs by Court in India. The Supreme Court at Madras took up the place of Recorders' Court in 1800. The Supreme Court at Bombay came to be established in 1823. The British Parliament, in 1781, enacted a Statue in which the Governor General in Council was exempted from the jurisdiction of the Supreme Court for any act done in the official capacity in the case of British subjects. In 1813, the British Parliament enacted the East India Company Act and allowed the East India Company to exercise trading as well as governmental functions, subject to the prerogatives of the British

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(iii)

Crown. By the Charter Act of 1833, the East India Company came to hold the Government of India in Trust for the British Crown. But under the Government of India Act of 1858, the Crown assumed the Sovereignty over India and took over the administration of India from the hands of East India Company. The Government of India Act, 1858 was replaced by the Government of India Act of 1915which was also replaced by the Government of India Act of 1935. However, despite these different enactments, the provisions contained in Section 65 in all these enactments remained the same. In 1861, the Supreme Courts at Bombay, Madras and Calcutta were superseded by the High Court Act of 1861 under the Charter of 1861. In places of Supreme Courts at Calcutta, Madras and Bombay, the High Courts at Bombay, Madras and Calcutta were established. But these Courts did not have the jurisdiction to issue Writs, although under Section 491 of the Code of Criminal Procedure of 1872, these High Courts could issue Writ of Habeas corpus to set at liberty a person held in illegal detention. In 1913, the Code of Criminal Procedure was amended to confer powers on all High Courts to issue writs. Section 45 of the Specific Relief Act vested powers in the three Presidency High Courts (of Bombay, Madras and Calcutta) to make order requiring any specific act to be done or forborne by any person holding a public office or by any corporation or inferior court. So also under Section 115 of the Code of Civil Procedure these three High Courts could call for the record of an inferior Court and if there has been absence of jurisdiction or failure of jurisdiction or material irregularity in the exercise of jurisdiction, it could make such orders as it may think fit. But after, independence, when India gave to itself the Constitution, the citizens were given the extraordinary remedy of Writ, as is discussed below. Writs under the Constitution of India: The Constitution of India guarantees inexpensive but the most effective remedy to the citizens against the deeds and the misdeeds of the 'State' within the meaning of Article 12 of the Constitution of India. Article 32 of the Constitution of India guarantees the right to move the Supreme Court for the issuance of all kinds of Writs. It is the original jurisdiction of the apex Court to issue Writs of any kind. But Article 136 of the Constitution of India grants the appellate jurisdiction in the apex Court of India inasmuch as it empowers the Supreme Court of India to grant Special Leave of Appeal from the Judgment, decree, determination, sentence or order in any cause or matter passed by any Court or tribunal in the territory of India. It is to be noted that special leave appeal may be granted by the Supreme Court even where the High Court has refused to grant the certificate under Article 132, 133 and 134 - Achut us. State of WB, AIR 1963 SC 1039, Manik Chand us. Elias, AIR 1969 SC 75I. The High Courts are then given the original jurisdiction to issue Writs of all kinds under Articles 226 of the Constitution of India. In State of Orissa us. Madan Gopal, AIR 1952 SC 12 and in Calcutta Gas Co. us. State of WP. AIR 1962 SC 1044 it was held that the High Courts can issue writs for the enforcement of statutory as well as common law rights. The High Courts under Articles 227 of the Constitution of India is conferred with although not the appellate jurisdiction but very much in the nature of appellate jurisdiction inasmuch, under Article 227, the High Courts are conferred with powers of superintendence over all courts and tribunals in the country. Indeed, the

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173

power of superintendence over some of the Tribunal is excluded from the powers vested under Article 227 of the Constitution of India. Conclusions: The apex Court of India in T. C. Basappa vs. T. Nagappa, AIR 1954 SC 440, P. J. Irani vs. State of Madras, AIR 1961 SC 1731, and Dwarka Nath vs. I.T., AIR 1966 SC 81 has held that the writ jurisdiction in India is wider than the Prerogative Writs in England. It is FIRSTLY because the Constitution of India uses the expression "writs in the nature of". For this reason, the writs in India are not identical with those in England. Nevertheless, the Writs in India draw the analogy from the English Prerogative Writs. SECONDLY, High Courts cannot only issue Writs but can also issue 'Directions', Orders or the Writs other than the Prerogative Writs. Thus, the scope of Writs in India being larger than the Prerogative Writs of England, it enables the Indian Courts to mould the Reliefs to meet the exigency in the matter in the country.

3. CONSTITUTION OF INDIA The Constitution of India lays down:.:.

the Fundamental Rights in Part III and guarantees, inter-alia, the RIGHTS such as, ,/ Right of Equality under Articles 14, 14, 15, 16, 17 and 18. ,/ Right to Freedom under Articles 19, 20, 21 and 22. ,/ Right against Exploitation under Articles 23 and 24 . ./ Right to Freedom of Religion under Articles 25, 26, 27 and 28. ,/ Cultural and Educational Rights under Articles 29 and 30. AND ,/ Right to Property under Article 31. :> Article 32 ensures protection against the violation of Fundamental Rights enshrined in Part III above. Whereas action can be taken under Article 226 by approaching appropriate High Court when (I) Law is invalid or ultra-vires (2) conditions laid down in law have not been fulfilled, (3) action of authority is malafide or (4) the deprivation is compensable .

•:.

the Directive Principles in Part IV and makes it incumbent upon (the Sovereign State of) India to make the 'State Policy' for the following::> In Article 38, it requires (the Sovereign State of) India to strive to promote the welfare of the people by securing and protecting the social order in which justice, social, economic and political standards are included and it (the Sovereign State of) India shall inform all the institutions of the national life. :> In Article 39, it requires (the Sovereign State of) India to direct its POLICIES towards securing ,/ equal means of livelihood for all citizens, ,/ the best distribution of community's material resources for the good of the community, ,/ non-concentration of wealth and means of production, ,/ equal pay for equal work for men and women,

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./

>

>

>

> > >

> >

>

>

> > >

>

proper health and strength of workers and children and that the economic necessity does not forced them to enter avocation unsuited to their age or strength AND ./ equal opportunities, facilities and dignity to children and protection against their exploitation and against moral and material abandonment. In Article 39-A, it requires (the Sovereign State of) India to secure legal system that can promote justice on the basis of equal opportunity and the free legal aid to all needy citizens. In Article 43, it requires (the Sovereign State of) India to endeavor (1) to secure living wage, good condition of work, decent standard of life and full enjoyment of leisure time, (2) social and cultural opportunities and (3) encouragement to co-operative movement in villages and rural areas. In Article 43-A, it requires (the Sovereign State of) India to take steps to secure participation of workers in management of undertakings, establishments or other organisations engaged in any industry. In Article 44, it requires (the Sovereign State of) India to endeavour to secure Uniform Civil Code. In Article 45, it requires (the Sovereign State of) India to make provisions for free and compulsory education for children. In Article 46, it requires (the Sovereign State of) India to promote educational and economic interests of Schedule Castes, Schedule Tribes and other weaker sections. In Article 47, it requires (the Sovereign State of) India to 0 raise the level of nutrition (2) the standard of living and (3) improve public health. In Article 48-A, it requires (the Sovereign State of) India to (1) protect environment, (2) improve the environment (3) safeguard the forests and (4) wild life of the country. It invests in Supreme Court and High Courts the Writ Jurisdiction to check the administrative excesses and arbitrariness as is clear from the provisions:Article 13 lays down that the Administration's legislative acts, Orders, bye-laws, rules, notifications or the delegated legislations can be challenged on the ground of violation of any of the Fundamental Rights guaranteed under the Constitution. Article 32 lays down that Supreme Court shall have powers to issue directions or orders or writs for the enforcement of any of the Fundamental Rights enumerated above. Article 132 lays down that the Supreme Court shall have the appellate jurisdiction in appeals form High Courts. Article 136 lays down that the Supreme Court shall have power to hear the Special Leave Petition. Article 226 lays down that the High Courts established in each State shall have powers to issue directions or orders or writs for the enforcement of any of the Fundamental Rights enumerated above. Article 227 lays down that the High Courts shall have the power of superintendence over all courts and tribunals in relation to which it exercises jurisdiction.

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> > >

Article 300 Article 310 Article 311 from legality,

175

makes Government liable for the torts committed by its Servants. incorporates the Doctrine of pleasure but subject to Article 311. protects Government Servants of the Government action which suffers validity and propriety.

4. WRIT JURISDICTION OF SUPREME COURT OF INDIA = REMDIES UNDER ARTICLE 32 OF CONSTITUTION OF INDIA. The Citizens of India -most quickly, directly and straightway can approach the highest court of the land, under Article 32 (1) of the Constitution of India, to redress their any and every grievance against the Government and its authorities. This is clear from the provisions of Article 32 (2) which provides that the Supreme court shall have the power to issue the directions, orders or Writs including the writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and Certiorari, whichever may be appropriate for the protection or enforcement of any of the fundamental rights - Bandhua Mukti Morcha us Union of India, AIR 1984 SC 803. However, the Supreme Court cannot issue Writ against the High Court and the infirmity, if any, in the Order of the High Court can be considered by the Supreme Court only in appeal Naresh Sridhar us. State of Maharashtra, AIR 1967 SC 1. Therefore, it is well to remember that Article 136 confers the Appellate jurisdiction and Article 32 confers the Original jurisdiction in the Supreme Court - Sukhdeu us. Bhagatram, AIR 1975 SC 162. In any case, it may clearly be noted that the Supreme Court of India can be moved by an appropriate proceeding for (1) enforcement or (2) infringement -(i) actual or (ii) apprehended of the fundamental rights enshrined in Part III of the Constitution of India. In fact, the remedy under Article 32 is treated as the 'fundamental right' and that is the basic structure of the Constitution. To invoke the apex Court jurisdiction, under Article 32, it is necessary to make out a prima facie case of infringement or threatened violation of violation of 'fundamental right' enshrined in Part III of the Constitution of India - D.A.V..College us. State of ,')unjab, AIR 1971 SC 1737. But it may expressly be noted that, to invoke the jurisdiction of the apex Court, it is not necessary to show the actual infringement of fundamental right, suffice it is to show the apprehended infringement or imminent danger of infringement of fundamental right - Ujjam Bai us. State of Up, AIR 1962 SC 1332. It necessarily, means that if there is no violation of fundamental rights, the citizens cannot move the apex Court - Gopa/ das us. Union of India, AIR 1955 SC 1. So it leads to an infallible conclusion that under Article 32, no question other than the question of fundamental right can be gone Into - Coffee Board us. St. C. T.O, AIR 1971 SC 870. In Ram Chandra Pa/ai us. State of Orissa, AIR 1956 SC 298, the Supreme Court held that freedom of interstate and intra-state trade guaranteed under Article 301 is not the fundamental right enshrined in Part III of the Constitution of India and hence cannot be enforced under Article 32 of the Constitution of India. In Darya us. State of u.P. AIR 1961 SC 1457 the apex Court said that it is its duty to protect the fundamental rights of the citizens as it has been made the protector and guarantor of the fundamental rights. In Harbans us. State of Up, AIR 1982 SC 849, the Court held that Article 32 gives extraordinary power to Supreme Court to prevent manifest injustice. The Supreme Court held that the writ jurisdiction can be invoked where:- there is error of jurisdiction or error of law apparent on the face of record - Mukharjee us. Union of India, (1990) 3 SCJ 93,

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.I .I

Bias - Ranjit us. Union of India, AIR 1988 SC 2386 . Breach of Principles of Natural Justice - Laxmi us. Union of India, (1991) 2 SCJ 86.

The Constitution of India invests three different kinds of jurisdictions in the Supreme Court, namely, (1) the Original Jurisdiction under Article 32, (2) the Appellate Jurisdiction under Article 132 and the Special Jurisdiction to hear the Special Leave Petitions under Article 136 of the Constitution. Whereas in the High Courts, under Article 226, the Constitution of India vests the Original Jurisdiction but no Appellate jurisdiction is vested in the High Courts. What is conferred under Article 227 in the High Courts is the power of superintendence. The power of superintendence of High Courts under Article 227 cannot be equated with the Appellate Jurisdiction. Article 227 (4), however, in express terms excludes the powers of superintendence of High Court over the Court Martial. Necessarily, therefore, the grievances against the Court Martial can be considered by Supreme Court under its original jurisdiction under Article 32 and not under Article 132 or 136. Similarly, the High Court can exercise its similar powers under Article 226 and not under Article 227. In Ranjit us. Union of India, AIR 1987 SC 2386, the Supreme Court held that if the sentence passed in Court Martial is grossly disproportionate then it can exercise its jurisdiction.

5. THE WRITS (A) Introductory (B) Writ of Habeas Corpus (i) Meaning and Object. (ii) History. (iii) When can be issued? (iv) When may be refused? (v) Conditions for the issuance. (vi) Who may apply? (vii) Against whom issued. (viii) Procedure. (ix) Refusal to obey the Order of Habeas Corpus. (x) Successive Applications. (xi) Constitution and Habeas Corpus. (C) Writ of Quo Warranto (i) Meaning and Object. (ii) History. (iii) When can be issued? (iv) Who may apply? (v) When can be refused? (D) Writ of Prohibition (i) Meaning and Object.

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(E)

(F)

(G) (H)

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(ii) When can be issued. (iii) When cannot be issued. Writ of Certiorari (i) Meaning and Object. (ii) When may be issued? (iii) Conditions for the issuance. (iv) Grounds of issuance. (v) When may be refused? (vi) Against whom lie? (vii) Against whom not lie? Writ of Mandamus (i) History. (ii) Meaning and Object. (iii) Who may apply? (iv) Against whom it will lie? (v) When can be issued? (vi) Against whom it will not lie? (vii) Condition precedent to the issuance of Mandamus. Difference between Certiorari and Prohibition. Difference between Certiorari and Mandamus.

(A) INTRODUCTORY As is recorded above, it was the Crown's prerogative to know, at all times, everything about the kingdom. Thus, the King wishing to be informed of the wrongdoing would issue a royal prerogative. Later on, indeed, even a "Subject" would apply for the Writ and therefore, it no longer remained the 'prerogative of the King' and, still further, with the advent of time, the 'Prerogative Writ' turned out to be the (i) special or (ii) extraordinary REMEDY available to common man against arbitrary exercise of power by public authorities. The next question falls for consideration is: What are the different Writs which are available? The answer is simple. The (i) Writ of Habeas Corpus, (ii) Writ of Quo Warranto, (iii) Writ of Prohibition, (iv) Writ of Certiorari and (v) Writ of Mandamus are available. (B) WRIT OF HABEAS CORPUS (i)

Meaning and Object. (b) History. (c) When can be issued? (d) When may be refused? (e) Conditions for the issuance. (f) Who may apply? (g) Against whom issued.

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(h) Procedure. (i) Refusal to obey the Order of Habeas Corpus. U) Successive Applications. (k) Constitution and Habeas Corpus. (i)

(ii)

(iii)

Meaning and Object: The word Habeas Corpus is a Latin word. It means 'have the body' or 'bring the body'. It is in the nature of Command calling upon the person (Public or Private) who has detained another to produce latter before the Court in order to let the Court know, on what ground the Prisoner is confined in detention and to set him free if there is no legal jurisdiction for the detention. The object of this Writ is dual. One is, not to punish the wrong-doer but, to secure the release of the prisoner without which he may not be in a position to pursue his legal remedies against the wrong-doer. Another object is to test the legality or otherwise of detention, and, if such detention is not legal, the prisoner will be ordered to be released. History: The Writ of Habeas Corpus is of immemorial antiquity or one of the most ancient writs. It is antecedent to Statute and throwing its root deep into the genus of Common Law. It is the remedial counterpart of the substantive right to .freedom against arbitrary detention guaranteed by the Magna Carta. In India, earlier, there was no legal system whereby the King or the Court could issue a command of Habeas Corpus but it came here with the establishment of the Supreme Court at Calcutta by the Regulating Act of 1774. In re Ammerkhan, (1870) 6 Beng. L.R. 459, it was held that, in India, power to issue Habeas Corpus, within the Mofussil areas, was with the Supreme Court. It was then inherited by the High Courts. Later on, the High Court was given the appellate jurisdiction to issue Writ of Habeas Corpus under Section 491 of the Code of Criminal Procedure after the Criminal Law Amendment Act of 1923. When can be issued? : The Habeas Corpus, in India, can be issued if the Detention Order is illegal. The Detention Order is illegal under the following circumstances:(i) Where the 'Subordinate Legislation' is ultra vires or is otherwise invalid for

(ii) (iii)

(iv) (v) (vi) (vii) (viii)

excessive delegation and the Detention Order is made under such a Law. Where the Detention Order is ultra vires the Statute under which the Order is passed. Where the Law is unconstitutional, being in contravention of Articles 14, 19, 22 (1), 22 (5) of the Constitution of India, and the Detention Order is made under such a Law. Where, though the Statute is valid, the Detention Order in violation of Articles 22 (1), 22 (2) and 22 (5) of the Constitution of India. Where the Detention Order is without jurisdiction inasmuch as the Authority passing the Order is not properly constituted under the Law it passes the Order. Where there is malafide use of power in passing the Detention Order. Where the Detention Order is ex-facie outside the authority delegated to the Officer exercising the powers delegated to him. Where the Grounds of Detention Order are invalid or irrelevant.

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(u)

(ui)

(uii)

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(ix) Where the Detention by the Private Person (child is snatched away by husband from the mother) is without any legal justification. When may be refused?: The prime consideration, in granting and refusing the relief, is the legality of the detention order at the time of seeking the relief. Necessarily, therefore, where the detention is prima facie not illegal, the writ of Habeas Corpus cannot be issued. Even if the detention order is illegal at the time of making the order, yet no Writ of Habeas Corpus is granted if the detention order is not illegal at the time of issuing the writ of Habeas Corpus. It means that the 'illegality' should be at the time of issuing the Writ rather than at the time of passing the Order of Detention. In Naranjan Singh us. State of Punjab, AIR 1952 SC 2197 the Court refused to grant the relief because the prisoner was not in illegal detention on the date of return of the rule nisi. If the Petitioner is released before the Habeas Corpus is issued, the entire cause of action becomes infructuous - Talib Husain us. State of J&K, AIR 1971 SC 62. Conditions for the issuance: If the detention is prima facie illegal, as aforesaid, the Writ of Habeas Corpus is not issued - Batul Chand us. State of WB, AIR 1974 SC 2285. If a foreigner enters the country and to expel him if he is arrested, his arrest is not illegal - Anwar us. State of J&K, AIR 1971 SC 337. The condition of 'Res-judicta' does not apply to the Writ of Habeas Corpus - Lallubhai Jogibhai us. Union of India, AIR 1981 SC 728. Further, in order to apply for the Habeas Corpus, the illegal detention must continue as otherwise the issuance would be infructous - Mohit us. D.M., AIR 1974 SC 2237. It is not the condition that the detained person must be produced before the Court at the time of hearing of Habeas Corpus - Kanu Sanyal us. D.M., Darjeeling, AIR 1983 SC 653. In Dushyant us. Sushma, AIR 1981 SC 1026, father had snatched away the custody his child whereupon the aggrieved mother moved the Writ of Habeas Corpus. The father set up the defence that his wife had also initiated the criminal proceedings for the custody of her child and hence no writ of Habeas Corpus would lie against him. The apex Court held that there is no condition that criminal proceedings must not be pending if the writ of Habeas corpus is to be issued. Who may apply?: No hard and fast rule is laid down anywhere to apply for the Writ of Habeas Corpus. As such, the Prisoner himself can apply for the writ - Charanjit Lal us. Union of India, AIR 1951 SC 41, or his Wife - Emperor us. Vimlabai, AIR 1946 PC 123, or his Father - Sundarajan us. Union of India, AIR 1970 Del, 29 FB or his Relative - Charanjit Lal us. Union of India, AIR 1951 SC 41 or even the Friend can apply for the writ. In Ramesh Kaushik us. B.L. Vig, 1980 Supp. SCC 183, Sunil Batra us. Delhi Admn. AIR 1980 SC 1579, a letter to the Judge regarding illegalities committed on prisoner was treated as the application for the Habeas Corpus. Against whom issued: Article 12 of the Constitution of India defines the word 'State". Briefly it lays down that the 'State' includes Government and Parliament of India, Legislature of each of the State, the all Local Authorities and the 'Other Authorities' within the territory of India. The expression the 'Other Authorities' is the term of wider implication. The writ of Habeas Corpus specifically under Article 32 of the Constitution of India, which is the exclusive original jurisdiction of the Supreme Court of India for enforcement of fundamental rights against the State, is not available against the private person. With this exception, the Writ of Habeas Corpus is

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(uiii)

(ix)

(x)

(xi)

maintainable against a private person or the State. In State of Punjab us. Sukhpal Singh, (1990) 1 SCC 355, the parents of a minor child the writ of Habeas Corpus against the grandfather who had forcibly detained the child. The High Court issued the Writ of Habeas Corpus. Procedure: As a matter of fact, a simple letter to the Judge can be treated as the application for the writ of habeas corpus - Ramesh Kaushik us. B.L. Vig, 1980 Supp. SCC 183, Sunil Batra us. Delhi Admn. AIR 1980 SC 1579. However, it is necessary that the writ of Habeas Corpus is accompanied by an affidavit stating the facts and circumstances leading to the making of such an application and make out a prima facie case against the impugned detention. Although the Court can grant interim bail pending the hearing and final disposal of the hearing of the writ of Habeas Corpus Keshau Singh, AIR 1965 SC 745, State of Bihar us. Ram Balak Singh, AIR 1966 SC 1441, State of UP us. Jairam, AIR 1982 SC 942, Ranjit us. State of Pepsu, AIR 1959 SC 843, it is usual to issue rule nisi at first. The Court by issuing rule nisi calls upon the detaining authority to appear before it on a specified date and show cause as to why the rule nisi should not be made absolute and set free the prisoner. In State of Bihar us. Kameshwar Prasad, AIR 1965 SC 575, it was held that where there is no return to the rule nisi, the prisoner is entitled to be released forthwith. Refusal to obey the Order of Habeas Corpus: When a citizen refuses to obey the authority and majesty of the Court, he is made to suffer punishment for lowering the dignity and majesty of the Court. Therefore, anyone who refuses to obey the order of Habeas Corpus, he is taken to have disobeyed the order of the Court and punished for the Contempt of Court. In Mohd. Ikram us. State of Up, AIR 1964 SC 1625, it was held that the writ has to be obeyed by the person to whom it is addressed. In Jyotirmoy vs. Gout. of WB., AIR 1952 Cal. 562, the Detenue had applied to the Court but it was withheld by the government. It was held to be the Contempt of Court. Successive Applications: The principle of 'Res-judicta' does not apply to the Writ of Habeas Corpus - Lallubhai Jogibhai us. Union of India, AIR 1981 SC 728. The principle of 'Res-judicta' does not apply to a fundamentally lawless order and if it is still applied, the scope of liberty of an individual will be considerably narrowed down. It necessarily leads to the conclusion that the applicant can go from one to another until he could find one more merciful than his brethren in Hastings (No.2), (1958) 3 All. E.R. 625. But surely this view was not accepted and today, the person cannot present successive applications for the writ of Habeas Corpus. However, it may noted that a petition under Article 32 is not maintainable if a similar petition under Article 226 was rejected Daryao us. State of Up, AIR 1961 SC 1457. In Ghulam Sarwar us. Union of India, AIR 1967 SC 1335 it was held that successive petition of Habeas Corpus under Article 32 on the same facts is not barred but it is barred under Article 226. Constitution and Habeas Corpus: The High Courts under Article 226 of the Constitution are vested with the jurisdiction to issue the Writ of Habeas Corpus within the limits of its territorial jurisdiction. The Supreme Court of India is vested with jurisdiction to issue the Writ of Habeas Corpus under Article 32 of the Constitution of India. The jurisdiction under Article 226 or 32 or 136 of the Constitution of India is the original jurisdiction of the Court and not that of the appellate court - State of

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Punjab us. Sukhpal Singh, (1990) 1 SCC 35. As such, the Courts do not sit in appeal over the order of the authority passing the order of detention. The Courts do not call for the records and does not consider if the Tribunal or the authority has exceeded or lacked its jurisdiction. But if the Courts find that the Tribunal or the Authority has exceeded or lacked its jurisdiction then it interferes in the decision of the Tribunal or the Authority - Som Datt us. Union of India, AIR 1969 SC 414. In Makhan Singh us. State of Punjab, AIR 1964 SC 381, the apex Court held that no Habeas Corpus can be issued to set at liberty a person who has been detained under Defence of India Act, 1962. Article 359 of the Constitution of India empowers the President to suspend the right to move the Court for the enforcement of any of the fundamental rights enshrined in Part III of the Constituent. Therefore, in Mohan Chowdhury us. Chief Commr., AIR 1964 SC 173, the Supreme Court rejected the Habeas Corpus petition under Article 32 on the ground that it was barred by the Presidential Order of 26-10-1962. In the case popular known as Habeas Corpus Case, AD.M. Jabulpur us. Shiukant Shukla, AIR 1976 SC 1207, the Supreme Court of India by majority of 4 : 1 held that in view of Proclamation of Emergency by the Presidential Order of 27-6-1975, no person has any locus standi to move any writ petition under Article 226 before a High Court for Habeas Corpus or any other writ or order or direction to challenge the legality of an order of detention on the ground that the order is not under or in compliance of with the Act or is illegal or is vitiated by malafide factual or legal or is based on extraneous considerations. The Legal Pundits indeed hold the view that the apex Court ruling is erroneous, does not lay down the Law of Habeas Corpus correctly and the point was already decided long before by its own rulings, such as Mohan Singh us. State of Punjab, AIR 1964 SC 381, State of Maharashtra us. Prabhakar, AIR 1966 SC 424 Jaichand us. State of WB., AIR 1967 SC 483, Anandan Nambiar us. Gout of Madras, AIR 1966 SC 657, Ram Manohar Lohia us. State of Bihar, AIR 1966 SC 740, District Collector of Hyderabad us. Ibrahim & Co., AIR 1970 SC 1275. After this ruling, and after lifting of the Emergency, the Constitution itself was amended by the Constitution (44th Amendment). By this amendment, the President cannot suspend the enforcement of the rights conferred by Articles 20 and 21 of the Constitution by Proclamation of Emergency.

c. WRIT OF QUO WARRANTO (i) (ii) (iii) (iv) (v) (i)

Meaning and Object. History. When can be issued? Who may apply? When can be refused?

Meaning and Object: Quo Warranto means 'what is your authority?' When a Public Officer occupies his office or holds the public authority he is called upon to explain to the Court by what authority (Quo Warranto) he holds such post. franchise or liberty. If the answer is not satisfactory of the Court, the Person holding the 'Post' has to quit it, or else, he is ousted from his 'Post' by an order of quo warranto. The object of the

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Quo Warranto is to provide a judicial remedy against an occupier of a Public Office or Franchise or Liberty. The Privy Council in Hamid Hasan vs. Banwarilal Roy, 1947 PC 90 said that the quo warranto is a remedy which is used to try the civil right to a public office. Whereas in University of Mysore vs. Govinda Rao, AIR 1965 SC 491 the Hon'ble Supreme Court of India explained the object stating that the quo warranto confers jurisdiction on the Judiciary to control the executive action in the matter of appointments to public office against the relevant statutory provisions; it also protects a citizen from being deprived of public office to which he may have a right; in some cases, persons not entitled to public office may occupy and continue to hold on, then the usurper can be ousted and the person entitled to the post is allowed to occupy it.

(ii)

(iii)

In other words, the State inquires into the legality of the Claim which a party asserts to an office and to oust him from the office if the claim of the party asserting it is not well founded or to forfeit the Claim to the office which once upon a time been rightfully possessed and enjoyed by the party. From the above it should be clear that Quo Warranto proceeding affords a judicial enquiry in which any person holding an independent substantive public office or franchise or liberty is called upon to show by what right he holds the said office, franchise or liberty. If the inquiry leads to the finding that the holder of the office has no valid title to it, the issue of the writ of quo warranto ousts him from that office. History: In England, under Edward I, Quo Warranto was effectively used against the usurpers (wrong user) of franchise (authorization). It was replaced in 1938 by the Injunction made available under Section 9 of the Administration of Justice (Miscellaneous Proceedings) Act of 1938. In India Supreme Court was established in Presidency Towns of Bombay, Madras and Calcutta under a Royal Charter of 26th March, 1774 after the Regulating Act of 1773. The Supreme Court then claimed jurisdiction over all officers of the East India Company, whether British or Indian native, for corrupt and oppressive acts done by them in collection of revenue. The writ jurisdiction was, however, limited to the Presidency towns, namely, Bombay, Calcutta and Madras. But with the introduction of Constitution, the High Courts and the Supreme Court have the powers of issuing the Writ of Quo Warranto. When can be issued?: Before a citizen can claim a writ of Quo Warranto he must satisfy the Court that the office in question is a Public Office - University of Mysore vs. Govinda Rao, AIR 1965 SC 491. From the leading case of Darley vs. R (1845) 8 ER 1513, it may be said that the writ of Quo Warranto can be issued in the following cases:(1) The Office must have been created by Charter or by the Statute or by the Constitution. (2) The Office must'be of a public nature; The following OFFICES are held to the 'Public Offices':,/ University Professor - Ram Singh Saini vs. H.N. Bharagawa, AIR 1975 SC 1852 but not that of the Principal of a private College - Niranjan Kumar vs. University of Bihar, AIR 1973 Pat 85.

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./ ./ ./

High Court Judge - Chandra Prakash vs. Chaturbuj, AIR 1970 SC 1061 . Prime Minister - u.N. Rao vs. Indira Gandhi, AIR 1971 SC 1002 . Municipal or Local Body Officers - Sbuddinsab vs. Municipality, AIR 1955 SC 314. (3) The OFFICE must be of a 'Substantive Character'. 'Substantive Character' means that the holder of the post be an independent official and not merely a deputy or servant of others - University of Mysore vs. Govinda Rao, AIR 1965 SC 491. Therefore, if the appointment is not of a substantive character but that of 'contractual, the writ of quo warranto is not available. (4) The holder must have been in actual occupation and user of the office in question. From the foregoing, it should be clear that no writ of quo warranto is issued unless the holder in actual occupation of the office and has asserted his right to claim it- Chandra Mohan vs. State of Up, AIR 1966 SC 1987. (iv)

(v)

Who may apply?: In Quo Warranto, the General Rule of Locus Standi (that only a person who is individually aggrieved) would not apply because it is the extraordinary special remedy. Thus, Writ of quo warranto can be issued at the instance of anyone, even though one is not personally aggrieved or interested in the matter. It means that in issuance of Writ of quo warranto, the Locus Standi is not relevant and material. In G. V.Venkateshwara Rao vs. Government of Ap, AIR 1966 SC 828, the apex Court observed that ordinarily the right that can be enforced in writ proceedings is the personal or individual right of the petitioner. But that rule does not apply ,to the writ of habeas corpus and quo warranto. When can be refused?: The Writ of quo warranto cannot be claimed as a matter of 'right' . It is at the sole discretion of the Court and it may be refused when ./ it is vexatious - Rameshwar vs. State of Punjab, AIR 1961 SC 816. ./ it would be futile - Hari Shankar vs. Sukhdeo Prasad, AIR 1954 All 227 (Full Bench) . ./ equally efficacious and alternative remedy is available - Pundlik vs. Mahadeo AIR 1959 Born. 2 . ./ the irregularity must be grave and manifest - Surrendra Mohan vs. Gopal Chandra, AIR 1952 Ori. 359 . ./ irregularity of appointment does not make the occupation of the office wrongful - State of Assam vs. Ranga Muhammad, AIR 1967 SC 903 - Statesman (P) ltd. vs. H.R.Deb, AIR 1968 SC 1495 . ./ The Writ of quo warranto cannot be refused merely on the ground of delay. The 'Cause of action' is de del In dleum - the continuing cause of action. In Sonu Sampat vs. Jalgaon Municipality, AIR 1958 Born. 113, the Court held that if the appointment is illegal, every day the holder continues in the office, gives fresh 'cause of action'.

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(D) WRIT OF PROHIBITION (i)

(ii) (iii) (i)

(ii)

(iii)

Meaning and Object. When can be issued. When cannot be issued. Meaning and Object: The writ of Prohibition is issued by a superior Court to an inferior Court (or Tribunal or an administrative body exercising judicial or quasi judicial functions) from usurping jurisdiction not vested in it. The object of the Prohibition is to restrain the inferior Courts or Tribunals or the administrative bodies exercising judicial or quasi judicial functions from exceeding their jurisdiction while they are in motion and thus keep them within the limits of their jurisdiction. This writ is issued only when the inferior Court or tribunal has decided to exercise jurisdiction or in the cases of pending proceedings or when the inferior Court or Tribunal or the administrative body is in motion on the legal philosophy that 'prevention is better than cure'. When can be issued: The Writ of Prohibition would be issued when an inferior Court or Tribunal in the following cases:./ absence or excess of jurisdiction - East India Commercial Co. Ltd. us. Collector of Customs, AIR 1962 SC 1983, Gouinda Menon us. Union of India, AIR 1967 SC 1274, Isha Beeui us. Tax Recouery Officer, AIR 1975 SC 2135, Abdul Kadir us. State of Kerala, AIR 1962 SC 922. It should, however, be remembered that absence or lack of jurisdiction must be patent and apparent on the face of record and should not be latent and should not ordinarily require for its establishment a lengthy enquiry into question of fact - Gouinda Menon us. Union of India, AIR 1967 SC 1274. It is also necessary to bear in mind the distinction between the lack of jurisdiction and the manner or method of taking correct course of action in respect of practice/procedure/wrong decision - Shyam Behari us. State of mp, AIR 1965 SC 427, Abdul Kadir us. State of Kerala, AIR 1962 SC 922, Pearelal us. State of Punjab, AIR 1958 SC 664 . ./ Violation of Principles of Justice - The apex Court takes the view that if principles of natural justice are violated then it is as good as the Court having no jurisdiction to proceed with the matter - Hari Vishnue Kamath us. Syed Ahmed Ishaque, IAR 1955 SC 233 . ./ Unconstitutionality of a statute - S. T.A. us. Budh Prakash, AIR 1954 SC 459, Commissioner, Hindu Religious Endowments us. Lakshmindra, AIR 1954 SC 282 . ./ Infringement of Fundamental Rights - When the impugned action violates the Fundamental Rights enshrined in the Constitution of India, the Superior Courts prohibits the inferior Courts to proceed in the matter. When cannot be issued? The writ of Prohibition is not issued:./ When there is an alternative remedy - The writ of Prohibition is the writ of 'RIGHT' and not a discretionary writ - Bengal Immunity Co. Ltd. us. State of Bihar, AIR 1955 SC 661. This writ, therefore, is not available when there is

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185

alternative, adequate and equally efficacious remedy - State of UP us. Mohd. Nooh, AIR 1958 SC 86, Calcutta Discount Co. us. ITO, AIR 1961 SC 372. However, it is not an absolute bar as it is unnecessary to insist upon a party to first suffer, submit himself to the jurisdiction and then take advantage of alternative remedy - Lakshmindra Theertha Swamiar us. Commr. Hindu Religion Endowments, AIR 1952 Mad. 613. So also the bar of alternative remedy is inapplicable when it is a case of infringement of fundamental rights S. T.A. us. Budh Prakash, AIR 1954 SC 459 . Proceedings before the inferior Court are not pending -The writ of Prohibition lies so long as the proceedings are pending but once the proceedings are concluded, the inferior Court becomes functus officio and the writ of Prohibition cannot be issued. However, the Superior Court can issue the Writ of Certiorari Hari Vishnu Kamath us. Ahmed Ishaque, AIR 1955 SC 233.

(E) WRIT OF CERTIORARI (i)

(ii) (iii)

(iv) (v) (vi) (vii) (i)

(ii)

Meaning and Object. When may be issued. Conditions for the issuance. Grounds of issuance. When may be refused. Against whom lie. Against whom not lie. Meaning and Object: The term 'Certiorari' is a Latin word; it means 'TO CERTIFY'. It is because the inferior Court has "to certify" the Record, Proceedings and the Order of its Court and send it up to the King's Bench Division so that the King's Bench Division can inquire into the legality and, if necessary quash the Order of the inferior Court. The object of the Certiorari, under English Common Law, is to REMOVE the record of the inferior Court OR Tribunal to the Superior Court so that the latter may "inform itself upon every subject essential to decide upon the propriety of the proceedings below". Thus by Certiorari, the Superior Courts keep all subordinate courts, inferior Tribunals and quaSi-judicial authorities within the limits of their jurisdiction and if they transgress their jurisdiction, to quash their Orders - Ryots of Garabandho us. Zamindar of Parlakimedi, AIR 1943 PC 164, Bassappa us. Nagappa, AIR 1954 SC 440, Ghalo Mal us. State of Delhi, AIR 1959 SC 65. Thus, by Certiorari the Superior Courts maintain the 'checks and prevents' on the Inferior Courts, Tribunals and/or Quasi Judicial Authorities functioning under them. When may be issued: The Writ of Certiorari, under English Common Law, may be issued EITHER for purpose of quashing a decision of lower Court, Tribunal or QuasiJudicial Authority OR to remove a case from an inferior Court to the Superior Court. However, in India, it is used for quashing the decision of the lower Court rather than removing the case from the lower Court. It is for two reasons. ONE, the jurisdiction of Supreme Court or that of the High Courts under Articles 32 and 226 respectively of the Constitution of India is regarded as the 'Supervisory' rather than 'Original'

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(iii)

(iv)

jurisdiction. TWO, there are other statutory provisos that enable the Superior Court to withdraw a case to itself. Conditions for the issuance. The Writ of Certiorari may be issued if the following conditions are fulfilled:.I The judicial or quasi-judicial body must have the legal authority. .I Such authority must be an authority to determine questions affects rights of subjects-citizens . .I It must have duty to act judicially and ./ It must have acted in excess of its authority. Grounds of issuance. The Certiorari may be issued on anyone of the following grounds:(A) Abuse of Jurisdiction. (8) Violation of Principles of Natural Justice and (C) Error of Law apparent on the face of record. It may be noted here that the lack of jurisdiction may:(1) be due to the fact that the Statutory provision under which the jurisdiction has been exercised is one which is ultra-vires the Constitution. (2) be due to the fact that the Regulation (for the breach of which the jurisdiction has been exercised) was ultra-vires the Constitution. (3) be due to the fact that the Regulations (for the breach of which the jurisdiction has been exercised) were ultra-vires the Statute (under which the Regulation was made). (4) arise by reason of>- The nature of the subject-matter of the proceedings >- Absence of some preliminary factors or >- Illegal conational of the tribunal. In R vs. Minister of Transport, (1934) 1 kb 277 even though the Minister was not empowered to revoke a license he passed an order of revocation. The order was therefore set aside on the ground of lack of jurisdiction. See also STO vs. Shiv Ratan, AIR 1966 SC 142, Chetkar vs. S. Vishwanath, AIR 1970 SC 1039. In Newspapers Ltd. vs. State Industrial Tribunal, AIR 1957 SC 532, the Court held that the Tribunal has jurisdiction to entertain and decide a dispute is not an 'industrial dispute' as contemplated under the Industrial Disputes Act,. 1947. In Ebrahim Aboobakar vs. Tek Chand, AIR 1953 SC 298, the Order of declaring the property as 'Evacuee Property' was upheld as there was no statutory provision under which, after the death of the person, his property cannot be declared as the evacuee property. In STO vs. Budha Prakash, AIR 1954 SC 459 the Assessment Order of the tax authority was set aside because the tax was sought to be levied in forward contract which was not within the taxable jurisdiction of the Provincial Legislature.

Indeed, Law presumes the existence of jurisdiction but so far as the inferior courts are concerned, the existence of jurisdiction is the condition precedent to the

JUDICIARY -IV (Redress Through Courts)

(v)

(vi)

(vii)

assumption of jurisdiction by the inferior Courts. However, what is 'jurisdiction'? In M.P. vs. D.K. Jadav, AIR 1968 SC 1186 under the relevant Statutes all ~agirs', including lands, forests trees, tanks, wells etc., were abolished and vested into the State. However, all tanks, trees, private wells and buildings on occupied land were excluded. The apex Court held that the question whether the tanks, wells etc., were on occupied land or on unoccupied land was a jurisdictional fact. If the authority is given power to decide the preliminary fact and if it decides wrongly, Certiorari cannot be issued. The proper remedy may be revision or the appeal, if right of appeal is available. When may be refused: In Prabhod Verma vs. State of u.P., AIR 1985 SC 167, the apex Court held that a Writ of Certiorari cannot be issued to call for the record or papers and proceedings of an Act or Ordinance. Also this is a landmark case for the laxity in DRAFfING AND PLEADING. In the given case, a number of teachers had gone on strike. The Government declared it illegal and issued an Ordinance directing striking teachers to report for duty. When teachers did not report for duty, their services came to be terminated. In the meanwhile a number of teachers came to be appointed on temporary basis. Later on, a settlement took place between the Government and the striking teachers' Sangh, pursuant to which the striking teachers reported for duty. Consequently, the services of new recruit teachers came to be terminated. However, Ordinance 10 of 1978 was issued to absorb the newly recruited teachers. This Ordinance was replaced by Ordinance of 22 of 1978. The striking teachers' Sangh filed a Petition for a Writ of Certiorari for quashing Ordinance of 22 of 1978 and consequential relief. The Court HELD, for the sake of future draftsmen of writ petitions, that a Writ of Certiorari in the nature of Certiorari is wholly inappropriate relief to ask for when the constitutional validity of legislative measure is challenged. The proper relief for the petitioners would have been the Writ of Mandamus. The apex Court observed that the High Court granted the correct relief but before that it ought to have insisted upon amending the petition and praying for proper reliefs. The apex Court found laxity in drafting of all types of pleadings and a well-drafted pleading an exception. Against whom lie: Certiorari lies against any constitutional, Statutory and non-statutory body/authority/person exercising judicial, quasi-judicial or administrative functions affecting rights of any citizen. In other words, the Writ of Certiorari lies against an inferior Court or Tribunal or other body exercising judicial or quasi- judicial functions. Against whom not lie: Writ of Certiorari cannot be issued (A) To quash an act or ordinance on the ground that it is unconstitutional - Prabhod Verma vs. State of u.P., AIR 1985 SC 167. (B) When there is an alternative and efficacious remedy is available - State of UP vs. Noah, AIR 1958 SC 86.

(F) WRIT OF MANDAMUS (i) (ii) (iii)

(iv)

187

History. Meaning and Object. Who may apply? Against whom it will lie?

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(v) (vi) (vii)

When can be issued? Against whom it will not lie? Condition-precedent to the issuance of Mandamus.

History: In England, after Norman Conquest, in the five Century, in number of cases, the Mandamus was used in the Orders issued by the then Sovereign Rulers. The first instance when Mandamus was issued was in 1615 when it was issued for enforcing a right of a private citizen. The Mandamus was issued to a Mayor and Corporation to restore burgers unless they (Mayor and Corporation) could show cause to the contrary - James Bagg's case, 11 Co. Rep, 93b 77 E.R. 1271. In early 18th Century, the Mandamus was issued to compel performance of wrongly refused public duties. The Mandamus, in India, came with establishment of Supreme Court at Calcutta by a Royal Charter of 26th March, 1774 issued under the Regulating Act of 1773. But after framing of the Constitution the Supreme Court of India and the High Courts of the State are empowered under the Constitution of India to issue the Writ of Mandamus. (ii) Meaning and Object: Mandamus means a command. It is in the form of Command of the superior court (Supreme Court or High Courts) to the subordinate or inferior courts or Tribunal or Government, Corporation or Public Authority or any Person to perform Public duty or to refrain from doing it. It is the command to do or to forbear from doing some specific act which that body is obliged to do or refrain from doing it, as case may be and which is in the nature of public duty or in certain cases, a statutory duty. In Shenoy & Co. us. C. T. 0., AIR 1985 SC 881, it was held that it should be taken to mean a command issued by the Court of competent to do so to a public servant, amongst others, to perform a duty attached to the office. The main object of this Writ is to compel the performance of Public Duties prescribed by the Sate and to keep the subordinate Tribunals and officers exercising Public Functions within the limit of their jurisdiction Lakhraj us. Dy. Custodian, Bombay AIR 1966 SC 1334. In Sharif Ahmed us. RTA, Meerut, AIR 1978 SC 209 it was held that if the order of tribunal is not implemented, the Mandamus can be issued directing the Government to implement the order. But no Writ of Mandamus would lie against a Company which has no duty to perform either the Statutory Duty or the Public Duty -see Praga Tools Corporation us. lmmanual, AIR 1969 SC 1306. (iii) Who may apply?: The Writ of Mandamus can be applied by a person whose 'Right' under the Constitution of India is infringed, breached or violated. Not only but also that such a right must be an existing right or it.must be subsisting on the date of filing the Writ of Mandamus - Kalyan Singh us. Stae of Up, AIR 1962 SC 1183. In case, a Corporate Body incorporated under any law for time being in force, then such body itself must apply for the Writ Charanjit Lal us. Union of India, AIR 1951 SC 41. (iu) Against whom it will lie?: The Writ of Mandamus may be issued by the Supreme Court of India or the High Court of the States to the Government, inferior Court, Tribunal, Public Authority, Corporation or any other person having public duty to perform. When High Court acts in the judicial capacity, no writ lies against it but if the High Court acts in its administrative capacity, certainly, a Writ would lie against its administrative action too - Prodyot us. Chief Justice, (1955) 2 SCR 1331. (i)

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(v)

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When can be issued?: The Writ of Mandamus can be issued if the following conditions exist:(I) THERE MUST EXIST THE PUBLIC DUTY - There must exist the 'Public Duty'. The 'Duty' created under the Constitution or the Statute or Common Law Rule or the Orders having the force of law is regarded as 'Public Duty' - State of Bombay vs. Hospital Mazdoor Sabha, AIR 1960 SC 610, Commissioner of Police vs. Cirdgawdas, AIR 1952 SC 16, Guru Swamy vs. State of Mysore, AIR 1954 SC 592. The contractual obligations are not the Public Duty and hence no Mandamus can be issued - Kulchhinder Singh vs. Hardayal Singh, AIR 1976 SC 2216, Sri Anandi Mukta Sadgum SHVSS Jayanti Mahotsav Smash Trust vs. v..R. Rydam, AIR 1989 SC 1607, Lekhraj vs. Dy. Custodian, AIR 1966 SC 334. (II) THE DUTY MUST BE (a) Statutory - The duty must be imposed in any Statue passed by the Legislatures - State of Bombay vs. Hospital Mazdoor Sabha, IR 1960 SC 964, Guru Swamy vs. State of Mysore, AIR 1954 SC 592. (b) Under Constitution - Rashid Ahmed vs. Municipal Board, AIR 1950 SC 163, Wazir Chand vs. State of HP, AIR 1954 SC 415. In State of Maharashtra vs. M.P. Vashi, AIR 1996 SC 1, the Supreme Court of India held that plea that the Petitioner has no right to seek a Writ of Mandamus basing his claim on directive principles contained in the Constituent is not tenable. (c) Under Common Law - The duty must be imposed by some of the rules of Common Law - Commissioner of Police vs. Gordhandas Bhanji, AIR 1952 SC 16. (d) Public Nature - Sohanlal vs. Union of India, AIR 1957 SC 529. (III) THE PUBLIC DUTY MUST BE MANDATORY - In order to sustain the Writ of Mandamus it must be show that it is mandatory and not DISCRETIONARY upon the authority to perform the public duty. In State of MP vs. Mandawara, AIR 1954 SC 493, it was held that where, by a rule, the Government was given discretion to grant dearness allowance to its employees, the Writ of Mandamus cannot be issued to compel the government to grant D.A. to its employees. However, in the case of Supreme Court Advocates on record Assn. vs. Union of India, (1993) 4 SCC 441, the Supreme Court took the view that even if the duty is discretionary, a limited Mandamus can be issued directing the public authority to exercise the discretion with reasonable time in accordance with law. EXCEPTIONS in which cases, Writ of Mandamus lie even though it is the discretionary duty• Discretion is exercised arbitrarily or maliciously - Jawaharlal University vs. Narewal, AIR 1980 SC 1666. • Discretion is exercised without application of mind - State of Punjab vs. Hari Kishan, AIR 1966 SC 1081, Nandfaf vs. Bar Council, AIR 1981 SDC 477. Asking the Authority to exercise its Discretion - Irani vs. State of Madras, AIR 1961 SC 1731, Collector of Estate Duty vs. Prayag Dass, AIR 1981 SC 1263.

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• Discretion is exercised on irrelevant considerations - Commissioner of Police us. Gordahandas, AIR 1952 SC 16. (IV) THERE MUST BE LEGAL RIGHT TO COMPEL THE PERFORMANCE OF PUBLLIC DUTY - In Director of Settlements A.P us. M.R. Appa Rao, AIR 2002 SC 1958, it was held that in order to obtain Writ of Mandamus the applicant has to satisfy the Court that he has a legal right to the performance of a legal duty by the party against whom the Mandamus is sought and such right must be subsisting on the date of the Petition. In Umakant us. State of Bihar, AIR 1973 SC 964, the Petitioner contended that his juniors had been promoted and he had been left out. Since the Petitioner was not qualified for the post, he had no legal right to compel the performance and hence his Petition was dismissed. (V) THERE MUST BE DEMAND & REFUSAL - In State of Haryana us. Cham an Lal, AIR 1976 SC 1654, it was held that for the issuance of Mandamus, it is necessary that the Petitioner has called upon the authority concerned to perform its public duty and the authority concerned has refused to do so. SEE also - Kamini Kumar us. Stat of WB, AIR 1972 SC 20bO, S.I. Syndicate us. union of India, AIR 1975 SC 460, Amritlal us. Collector of Central Excise, AIR 1975 SC 538. The Demand for the enforcement of public duty, however, is not necessary:(i) Where there is a prescribed period of limitation and that period of limitation has expired - Guru Charan us. Belonia Vidyapieth, AIR 1955 Tri. 33. (ii) Where the demand is unavailing. (iii) Where by conduct, the Respondent has made the demand impossible. (iv) No one in particular could have demand -where it is a matter of public interest (v) Where the respondent claims that he has performed the required duty and as such, it is not necessary to make the demand. (VI) PUBLIC AUTHORITY HAS (a) Abused the powers - State of Punjab us. Ramjilal, AIR 1971 SC 228, State of Haryana us. Rajindra, AIR 1972 SC 1004. (b) Exceeded it - Calcutta Discount Co. us. ITO, AIR 1961 SC 372. (c) Acted malafide - Pratapsingh us. State of Punjab, AIR 1964 SC 72, Rowjee us. State of Ap, AIR 1964 SC 962. (d) Acted with Non-application of mind - State of Punjab us. Hari Kishan Sharma, AIR 1966 SC 1081, Kishori Mohan us. State of WB, AIR 1972 SC

1749. (e)

(ui)

Has taken into consideration the irrelevant considerations - Rohtas Industries us. SD.Agarwal, AIR 1969 SC 707, Manu Bhusan us. State of WB, AIR 1973 SC 295.

Against whom it will not lie: In England, Mandamus does not lie upon the Crown. However, in India, Mandamus does not lie upon the President and the Governor of a State in their personal capacities under Article 361. But it would lie against the Government of India and the State Governments under Articles 300 and 361 of the Constitution of India. The Constitution of India also further empowers the Courts

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under Article 226. "to issue any person or authority, including in appropriate cases, any Government" any of the writs mentioned therein.

(vii)

No Mandamus will lie, under Articles 122 (2) and 212 (2), against an Officer or Member of the Parliament/Legislative Assembly in whom powers are vested for regulating the procedure or the conduct of business or for maintaining the order in Parliament or the Legislative Assembly, as the case may be. If issuance of the Writ prevents Legislature from considering the enactment of a law alleged to be unconstitutional then no such Writ is issued - Narindra Chand vs. Lt. Governor, Union Territory of HP, AIR 1971 SC 2399. Article 329 of the Constitution of India then precludes any Law Courts from entertaining electoral matters falling under Article 327 and 328 of the Constitution of India. The inferior subordinate ministerial officer is bound to obey his superior officer and hence no writ would lie against such inferior or subordinate officer. The remedy of Mandamus is also not available on any of the following grounds:(i) For enforcement of Private Duty, that is duties arising out of contractual obligations Kulchhinder Singh vs. Hardayal Singh, AIR 1976 SC 2216. (ii) Against Private Body or private individual unless entrusted with Public Duty Praga Tools Corpn. vs. Imanual, AIR 1969 SC 1306. (iii) The duty of the Public Authority must be imperative or mandatory and not discretionary. However, as discussed above, it still is available even if it is 'Discretionary Duty', if it is shown that the 'Discretionary Duty' was exercised arbitrarily, maliciously, without applying mind or on irrelevant considerations. (iv) On the grounds of latches or unexplained 'Delay' - Durga Prasad vs. State of Bombay, AIR 1961 SC 769. (v) On the ground that it would be fruitless or infructuous - Daya vs. Joint Chief Controller, AIR 1962 SC 1766. (vi) On the ground of suppression of material facts in the Petition Ibrahim vs. High Commissioner, AIR 1951 Nag. 38. Condition-Precedent to the issuance of Mandamus (a) The Applicant must have a 'legal right' or the 'legal duty' enshrined under a Statute Constitution or the Common Law. Further, the duty must not be at the 'Discretion' of the authority. So also it must not arise out of a 'Contractual' obligation. (b) The legal duty must be of a public nature and not a private right, such as contract. There are however, some exceptions to this rule. (c) The right must be subsisting on the date of issuance of the writ. (d) The Applicant must have actually suffered some injury, as a general principle, no writ is issued in anticipation of injury.

(G) DIFFERENCE BETWEEN CERTIORARI AND PROHIBITION

The Writ Certiorari can be best explained by quoting the following passage from the ruling given in R. vs. Electricity Commissioners, (1924) 1 K.B. 171 (204):"The matter comes before us (the Court of Appeal) upon rules for writs of prohibition and certiorari which have been discharged by the Divisional Court. Both writs are of great antiquity, forming part of the process by which the King's Courts restrained courts of inferior jurisdiction

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from exceeding their powers. Prohibition restrains the tribunal from proceeding further in excess of jurisdiction, Certiorari requires the record or the order of the court to be sent up to the King's Bench Division to have its legality inquired into and if necessary to have the order squashed. It is to be noted that both writs deal with questions of excessive jurisdiction; and doubtless in their origin, dealt almost exclusively with the jurisdiction of what is described in ordinary parlance as a court of justice. But the operation of the writs has extended to control the proceedings of bodies which do not claim, to be and would be recognized as, court of justice. Whenever any body of persons having legal authority to determine auctions affecting the rights of subjects, and having the duty to act judicially, act in excess of their legal authority they are the duty to act judicially, act in excess of their legal authority they are subject to the controlling jurisdiction of the King's Bench Division exercised in these writs." Certiorari and Prohibition are similar in many respects. Both are issued by superior court to the inferior Court or Tribunal or bodies exercising judicial or quasi-judicial functions both are issued on the similar grounds. The object of both is to restrain the inferior court from exceeding their jurisdciton (Hari Vishnu Kamath us. Ahmed Ishaque, AIR 1955 SC 293). However, the difference lies that Prohibition is issued before the proceedings are completed while Certiorari is issued after the decision is given by the inferior Court or Tribunal. Thus, if the proceedings are not completed, the aggrieved party can approach the superior court for the writ of Prohibition, but once the proceedings are completed and the decision is given and the party is aggrieved, the aggrieved party can approach the superior court for the writ of certiorari. (H) DIFFERENCE BETWEEN CERTIORARI AND MANDAMUS (e) The Certiorari is issued to demolish the Order passed by the subordinate Court!

(J)

Tribunal/Authority performing quasi-judicial functions whereas the Mandamus is issued to compel the performance of duties of public nature. Mandamus is issued even against the administrative authority but, with certain exceptions, Certiorari is not issued against purely administrative authority.

6. WHO CAN AVAIL OF THE WRIT REMEDY? (a) Generally. (b) Who is 'Aggrieved Person'? (c) Locus Standi. (i) Generally. (ii) Traditional View. (iii) Modern View. (a) Generally: Generally, the person approaching the Court must show that he has a 'right' to come to the Court (I) Calcutta Gas Co. us. State of WB., AIR 1962 SC 1044, (2) State of Punjab us. Suraj Prakash, AIR 1963 SC 507 (3) State of Orissa us. Ramchanrda, AIR 1964 SC 688. He also must show that he has the 'direct interest' Chiranjital us. Union of India, AIR 1951 SC 41. Not only that the interest is 'direct' but also it still subsists (I) Director of Endowment, Gouernment of Hyderabad us. Akram Ali, AIR 1956 SC 60 and (2) D. Nagraj us. Karnataka, AIR 1977 SC 876.

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Needless, therefore, to say that 'No Cause of Action' will arise UNLESS the right is breached, infringed or violated. In other words, the person approaching the Court must be the 'AGGRIEVED PERSON'. (b) Who is :4ggrieued Person'?: Who is 'aggrieved' person was considered in A. Phiroze Shah Gandhi us. H.M.Seeruai, AIR 1971 SC 385, an advocate from Maharashtra was convicted by a Court in London on a charge of pilfering some articles from a departmental store and sentenced to fine. Thereupon, the State Bar Council, on its own, called upon the advocate to Show Cause as to why he should not be held guilty of the misconduct. The State Bar Council also gave notice to the State Advocate General under Section 37 of the Advocates Act. The Disciplinary Authority, after hearing the parties, was satisfied that no reason to hold him guilty. The Advocate General thereupon appealed to the Bar Council of India which after hearing the parties held the advocate guilty and suspended him from the practice for one year. The advocate approached the Supreme Court of India and contended that Advocate General cannot be the 'aggrieved person' under Section 37 of the Advocates Act and hence he could not have appealed to the Bar Council of India. Section 37, inter-alia, provides that "any person aggrieved by an order of disciplinary committee may appeal to the Bar Council of India". The Supreme Court of India. inter-alia, per majority held that the person must himself suffer a grievance or must be aggrieved by the very order because it affects him. Any person who feels disappointed is not a person 'aggrieved'. An aggrieved person would be only a person who was a party to a lis and against whom the decision was given. The Advocate General does not represent the Executive or the Legislature or the Judiciary in disciplinary proceedings before the Disciplinary Committee. His function is advisory and more akin to an amicus curie. He is not to take a side except in so far his arguments lend weight to the case of the one side or that of the other. Beyond that he is not interested in the dispute either in his personal capacity or in his capacity as an Advocate General. Indeed, the majority construed the "aggrieved person" very narrowly but be it as it is. However, it may clearly be noted that it relates to the question who can invoke to jurisdiction of the Court or so to say the Locus standi of the person to approach the Court. (c) Locus Standi. (i) Generally. (ii) Traditional View. (iii) Modern View. (i) Generally: The Locus Standi means the LEGAL CAPACITY of the person coming

to the Court to challenge an act or decision. Whether the decision is valid or invalid is wholly irrelevant for the purpose of deciding the locus standi. The question of locus standi (whether the Petitioner is entitled to invoke the jurisdiction of the Court) is most irritating of all the questions in the Administrative Law. In Satyanarayana Sinha us. S. Lal and Co., AIR 1973 SC 2720 and so also in Charan Lal Shahu us. Gianni Sail Singh, AIR 1984 SC 309, the Hon'ble Supreme Court of India held that if the Petitioner has no locus standi he cannot be heard on merits.

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(ii) Traditional View: The tradition view on locus standi is that the JUDICIAL REDRESS is available only to the person who has suffered a 'legal injury' to 'his legal right' or 'legally protected interest' by the impugned action of the State or a Public Authority. The judicial redress is available on the basis of personal injury from violation, actual or threatened, of the legal right or legally protected interest of a person seeking such a redress. In State of Orissa us. Madan Gopal Rungta, AIR 1952 SC 12, it was held that, as a general rule, a person whose fundamental right is infringed can apply to the Supreme Court under Article 32. The existence of a right under Part II of the Constitution is the foundation for the exercise of the jurisdiction under Article 32. In Charanjit Lal us. Union of India, AIR 1951 SC 41, the apex Court held that the RIGHTS that could be enforced under Article 32 of the Constitution must ordinarily be the rights of the Petitioner himself who complaints of the infraction of such rights and approaches the Court for relief. In Calcutta Gas Co. Ltd. us. State of WB., AIR 1962 SC 1044, the apex Court observed that Article 32 of the Constitution does not in terms describe the classes of persons entitled to apply thereunder; but it is implicit in the exercise of the extraordinary jurisdiction that the relief asked for must be one to enforce a legal right. The Court also further held that the right that can be enforced under Article 226 of the Constitution also shall ordinarily be the personal or individual right of the petitioner himself. (iii) Modern View: The above traditional view is undoubtedly confined to the PRIVATE LITIGATION. In S.P. Gupta us. Union of India, AIR 1982 SC 149, it was held that there are,' however, certain EXCEPTIONS to the general but narrow and rigid view on the locus standi. The exceptions can be as follows:-

(I) Where a person is unable to approach the Court for any reasons or for some disability or, it is not practicable for him to move the Court for sufficient reason, such as socially or economically disadvantaged position, some other person can approach the court for seeking the assistance of the Court; for example, a minor person. In his case, as provided under Order XXXII of the Code of Civil Procedure, his next friend can approach the Court. Similarly, a person detained in prison can approach the Court for a Writ of Habeas Corpus through some other person. (II) A rate-payer of a local authority has also locus standi to approach the Court for challenging the illegal action of the authority. He can question the action of the local authority in granting cinema license to a person - (1) Shenoy us. Chief Officer, AIR 1974 SC 217, (2) Ratlam Municipal Council us. Vardhichand, AIR 1980 SC 1622. Also the tax-payer can also question the misuse of public funds by the municipality - Varadrajan us. Salem Municipal Council, AIR 1973 Mad. 55. (III) Any person can challenge the appointment or his continuation as the Public Officer. This can be done by filing a Writ of quo warranto. Although a person who files the Writ of quo warranto need not necessarily be the person aggrieved by the appointment of the Public Officer or his continuation as such in the office yet, as an exception, his locus standi is not put into question. (Calcutta Gas Co.

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Ltd. us. State of WB, AIR 1962 SC 1044, Satyanarayana Sinha us. S. Lal and Co., AIR 1973 SC 2720). (IV) Where there is a 'public wrong' or 'public injury' and particularly when it is caused and inflicted by the Public Authority, the question of locus standi becomes wholly irrelevant when one seeks redressal against the same.

Where there is a failure or the breach of Public Duty, any citizen can seek performance of Public Duty without his locus standi being put into question.

7. WHEN WRIT REMEDY IS REFUSED? (A) Delay and Latches (B) Existence of adequate alternative remedy. (i) General. (ii) Principle. (iii) Violation of Fundamental Rights. (iv) Violation of Non-Fundamental Rights. (v) Alternative Remedy in case of Mandamus. (vi) Alternative Remedy in case of Prohibition. (vii) Alternative Remedy in case of Certiorari. (viii) Alternative Remedy and provisions of Article 227 under the Constitution of India. (ix) Exceptions. (C) Malicious Petitions. (D) Misrepresentation of Facts. (E) Infructuous Petitions and (F) Res-judicta. The extraordinary remedy under the writ jurisdiction is refused on account of (A) Delay and Latches and (B) Existence of adequate alternative remedy, (C) Malicious Petitions, (D) Misrepresentation of facts, (E) Infructuous Petitions and (F) Res-judicta. (A) DELAY AND LATCHES

No doubt when the relief claimed is one relating to the enforcement or protection of fundamental right, the court has to grant it once the right and infringement thereof are established. But otherwise, it is imperative that the citizen comes to the court at the earliest reasonable possible opportunity. Although a citizen is expected to approach the court as fast as possible, nevertheless, there is no period of limitation prescribed. Yet, surely, one must come at the first available opportunity. This leads one to the measure of delay. Since the Limitation Act does not apply to writ petitions and no period of limitation is prescribed under the Constitution of India, it is always open to the Courts to judge it on the measure rod of justice, equity and good conscience. It may be clearly noted that it is not the rule of law but the rule of practice based on the Court's discretion and this discretion is to be exercised in the light of circumstances of each case

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- Ram Chandra us. State of Maharashtra, AIR 1974 SC 1514. In M. L. Cecil D'Souza us. Union of India, AIR 1957 SC 1269 and in Amritlal us. Collector, AIR 1975 SC 538, the apex Court refused to grant the relief only on the ground of delay. But on the facts of in each of case, the apex Court did grant the relief in G.P. Doual us. Chief Seery. Gout. of Up, AIR 1984 SC 1527, P.e. Sethi us. Union of India, AIR 1975 SC 2164. Joginder Nath us. Union of India, AIR 1975 SC 511.

(8) EXISTENCE OF ADEQUATE ALTERNATIVE REMEDY (i)

(ii) (iii)

(iv) (v) (vi) (vii) (viii) (ix) (i)

(ii)

General. Principle. Violation of Fundamental Rights. Violation of Non-Fundamental Rights. Alternative Remedy in case of Mandamus. Alternative Remedy in case of Prohibition. Alternative Remedy in case of Certiorari. Alternative Remedy and provisions of Article 227 under the Constitution of India. Exceptions. General: The underlying object is apparent and obvious. The High Courts, being the highest Courts in the States, it is but natural that the party first avails of the alternative remedy than to approach it in its extraordinary jurisdiction. The Rule of existence of alternative remedy is the rule of Public Policy and not of the Law Venkateshwaran us. Wadhawuan, IR 1961 SC 1506. In BALCO Employees Union us. Union of India, AIR 2002 SC 350, the apex Court refused to entertain the writ petition filed under Article 32 of the Constitution of India on ground of the alternative remedy available to the Petitioners. Principle: It must be clearly noted and remembered that the rule of exhaustion of statuary remedies before a Writ is granted is a rule of self-imposed limitation, rule of policy of Law and Discretion rather than a rule of Law and as such, the Courts in exceptional cases, issue such a writ as is required on the facts and circumstances of the case before it. Therefore, the existence of alternative remedy by itself does not affect, curtail or impinge upon the jurisdiction of the Courts. Whether in a given case, the alternative remedy is equally adequate, efficacious and speedy, depends upon the facts of that case. Any attempt to lay down any rule would be futile. The matter being one of the judicial discretion, no hard and fast rule can be laid down and each case would be dealt with the facts and circumstances of its own. In State of UP us. Mohd. Nooh, AIR 1958 SC 86, the apex Court said that it will ordinarily decline to interfere with but then it has the power to interfere with and it should interfere with in cases referred to by it. In Rakhalddas Mukherjee us. S.P.Ghose, AIR 1952 Cal 171, the Hon'ble Calcutta High Court summarized the principle on the availability of alternative remedy - the exercise of extraordinary powers by the Courts. Those are briefly stated as under:(a) Ordinarily the writs are not issued where there exists an alternative remedy equally efficacious and adequate.

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(b) But there is no inflexible rule and if it is expedient, the Courts may issue the writ. (c) Whether the alternative remedy is expedient or not depends upon the facts of each case. (d) The existence of alternative remedy by itself does not affect or curtail the jurisdiction of the Courts. (e) In cases where (i) there is patent blatant want of jurisdiction, (ii) there is apparent violation of Principles of Natural Justice (iii) alternative remedy is too very costly or ineffective or entails the delay or the remedy might prove valueless, the Court should exercise its extraordinary jurisdiction notwithstanding the fact that there exists an alternative remedy. To the above, the following also be added. (f) As aforesaid, in cases of fundamental rights, the Courts do exercise its extraordinary jurisdiction notwithstanding the fact that there exists an alternative remedy. (g) When a vital question of larger application or implication or public importance or public interest is involved, the extraordinary jurisdiction needs to be exercised notwithstanding the existence of an alternative remedy. (h) Once the Court exercises its extraordinary jurisdiction, it would not be proper to dismiss the Petition on the ground of existence of alternative remedy - Hirday Narain vs. ITO, AIR 1971 SC 33. (iii)

(iv)

(v)

Violation of Fundamental Rights: Article 32 guarantees the right to move the Supreme Court for the enforcement or violation of fundamental rights conferred under the Constitution. Further, Article 32 also casts a duty on the Supreme Court to protect the constitutional fundamental rights. Thus, it is not only the protection of fundamental rights of citizens but also the duty of the Court to protect the fundamental right of citizens. Therefore, it is inconsistent with the duty of the Supreme Court to refuse the remedy and hence the Supreme Court always regards it as its solemn duty to protect the fundamental rights citizens zealously and vigilantly. So is the case with the jurisdiction of the High Court in the matter of enforcement of fundamental rights. Therefore, it is the duty and obligation of the High Courts to enforce and protect the fundamental rights just like the Supreme Court under Article 32. Violation of Non-fundamental Rights: So far as the fundamental rights are concerned, the Supreme Court and so also the High Courts protect them very zealously and vigilantly but so far as non-fundamental rights are concerned, it may be noted, the Courts' jurisdiction is only DISCRETIONARY. As such, if there is an alternative remedy, normally, the Courts would not entertain the grievance and direct the citizen to first avail of the alternative remedy. - Union of India vs. T.R.Varma, AIR 1957 SC 882. Nanhoo Mal vs. Hira Mal, AIR 1975 SC 2140. ntaghar Paper Mills vs. State of Orissa, AIR 1983 SC 603. Veerappa Pillai vs. Raman & Raman Ltd., AIR 1952 SC 192. Alternative Remedy in Case of Mandamus: Despite alternative remedy, a writ of mandamus may lie in the following cases.

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(a)

When the parent Act itself is ultra-uires - Bengal Immunity Co. Ltd. us. State of Bihar, AIR 1955 SC 661. (bJ When alternative remedy is NOT EQUALLY efficacious, effective or convenientSTO us. Shiu Ratan, AIR 1966 SC 142. (c) When alternative remedy is onerous and costly - Himmatlal us. State of MP, AIR 1954 SC 403. (d) When conditions giving authority to Executives to exercise his powers were not satisfied and yet the Executive exercised his power and passed the Order Coouerjee us. Excise Commissioner, AIR 1954 SC 220. (e) When there is no proper hearing or when no order is passed or the matter is adjourned sine-die for order. (f) When fundamental rights are infringed or violated.

(ui)

(uii)

(uiii)

(ix)

Alternatiue Remedy in Case of Prohibition: The Prohibition is not a writ of course, but a writ of right and not discretionary - Bengal Immunity Co. Ltd. us. State of Bihar, AIR 1955 SC 661. However, the existence of alternative remedy may be taken into consideration in issuing the writ of prohibition - State of UP us. Mohd. Nooh, AIR 1958 SC 86. In Lakshmindra Theertha Swaminar us. Commissioner of Hindu Religious Endowments, AIR 1952 Mad. 613, it was observed that writ of probation lies to prevent an inferior Tribunal from exceeding its jurisdiction or even from assuming a jurisdiction. It is unnecessary to insist upon a party complaining that he should first suffer and submit himself to the jurisdiction which is being wrongly exercised or it is wrongly exceeded. Alternatiue Remedy in Case of Certiorari: A writ of certiorari is a discretionary remedy and as such, the Court may refuse to exercise its extraordinary powers vested in it under the Constitution if the aggrieved party has another adequate and efficacious alternative remedy. Whether it is adequate and efficacious is a question of fact and therefore would very much depend upon the facts of each case. But suffice it to record that if it is adequate, efficacious and available, the Court has the discretion to refuse to issue the writ of Certiorari. Alternatiue Remedy and Prouisions of Article 227 Under the Constitution of India: The powers under Article 227 of the Constitution of India are supervisory in the nature and as such, it cannot be claimed as of right. Therefore, necessarily, it is always at the discretion of the Court to exercise its powers or not to exercise them in the given case before it. And normally, the Court refuses to exercise its powers under Article 227 if there is alternative, efficacious and adequate remedy available to the party seeking to invoke its jurisdiction under Article 227 of the Constitution of India. However, there is no dearth of case laws in which the Courts have exercised its powers under Article 227 of the Constitution of India when it considered it necessary to exercise them. Exceptions to Existence of Alternatiue Remedy: The topic is already discussed above stating that if it is an infringement of fundamental right, the existence of alternative remedy holds no water in moving the apex Court under Article 32 or even moving the High Courts under Article 226 of the Constitution of India. In this connection, it may be noted that the Writ of Habeas Corpus can be asked for not only by the person detained but also by any person who is not absolute stranger -Charanjit Lal us. Union

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of India, AIR 1951 SC 41. The rule of existence of alternative remedy is also not applicable in the cases of Public Interest Litigation. What is Public Interest Litigation is separately discussed below. (C) MALICIOUS PETITIONS:

The Law always helps those who are the sufferers. But at the same time, it does not help those desirous of taking undue advantage of law. In Kini us. Union of India, AIR 1985 SC 893 the apex Court held that the Courts can dismiss the petition if it finds that petition is maliciously filed or that it is ill motivated. A decision based on misrepresentation of vital facts in vitiated. AL. Ranjane us. Rauindra Ishwardas, AIR 2003 SC 300. (D) MISREPRESENTATION OF FACTS: The Courts also take it seriously if the party before it takes liberty to file the petition in which facts are misrepresented. In Welcome Hotel us. State of AP. AIR 1983 SC 511, the apex Court held that if Courts find that the Petitioner has misrepresented the facts, the Courts may dismiss the petition only on that ground at any stage of the matter. A L. Ranjane us Rauindra Ishwardas AIR 2003 SC 300 the apex court held that a decision based on misrepresentation of vital feels is vitiated. (E) INFRUCTUOUS PETITIONS: Infructuous means fruitless or unfruitful. The sound cardinal principle is that Courts should not entertain and hear a petition which bears no fruit. Therefore, if the petition aims at nothing, the Courts should not exercise its jurisdiction for nothing. In Mohit us. D.M., AIR 1974 SC 2237, the Petition was filed for a writ of Habeas Corpus, after the detenue was freed. The apex Court refused to entertain the petition of Habeas Corpus. However, in Madhu Limaye us. Suptdt., AIR 1975 SC 1505, Himmatlal us. Commr. of Police, AIR 1973 SC 87, the apex Court took the view that Courts may decide an issue or unconstitutionality, even if the immediate cause has disappeared for the time-being.

(F) RES-JUDICATA: For the first time, in Sharma us. Krishna Sinha, AIR 1960 SC 1186, the Hon'ble Supreme Court of India held that the general principles of rest judicata apply even to writ petitions filed under Articles 32 or 226 or 227 of the Constitution of India. Thereafter there is no dearth of rulings laying down that there is no good ground to preclude decisions in matters in controversy in writ proceedings from operating as res judicata in subsequent petitions on the same matters in controversy between the same parties.

8. PUBLIC INTEREST LITIGATIONS (i) (ii) (iii) (iv) (i)

General. Nature. Object. Reasons for the Development. General: LEXICALLY, the expression 'Public Interest Litigation' means a legal action initiated in a Court of Law for the enforcement of legal rights of general interest or Legal Rights in which public is interested. Public is interested when their legal rights or

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(ii)

(iii)

(iv)

liabilities are affected. The expression Public Interest Litigation initially was not in vogue. In Fertilizer Corporation Kamgar Union vs. Union of India, AIR 1981 SC 344 the expression 'epistolary jurisdiction' was used. One may call the epistolary jurisdiction, a Post Card Justice. Then the Post Card Justice gained momentum day by day, burgeoned more and more, expanding its branches in the cosmos of Public Interest Litigation, host its roots firmly in the Indian Judiciary and fully blossomed with fragrant smell. Nature: The Public Interest Litigation is brought before the Court not for the purpose of enforcing the right of one individual against another as happens in the case of ordinary litigation but is intended to promote and vindicate public interest which demands that violations of constitutional or legal rights of large number of people who are poor, ignorant or in a socially or economically disadvantaged position should not go unnoticed and un-redressed. Object: The object of the Public Interest Litigation is not in the nature of adversary litigation. It is in the nature of challenge which gives an opportunity to the Government and its Officers to make basic human rights meaningful to the deprived and vulnerable sections of the society and to assure them social and economic justice enshrined in the Constitution of India. The Court merely assists public spirited citizen to achieve the Constitutional mandates. In Bihar Legal Support Society vs. c.J. of India, (1986) 4 SCC 767, the apex Court held that the Public Interest Litigation has been evolved with a view to bring justice within the easy reach of the poor and the disadvantaged sections of the Community. Reasons for the Development: There has been a rapid growth of public interest litigation. The fast development can be attributed to the following reasons: (1) A citizen suffering legal injury was unable to take legal steps for various and diverse reasons. As a result, the grievances used to remain un-redressed, despite the fact that legal remedy is/was available. A public spirited person comes forward to render his help in overcoming the disadvantage of the in moving the Court. Thus legal wrong or injury cased to citizens does not go un-redressed and justice is done - Bandhua Mukti Morcha vs. Union of India, AIR 1984 SC 802, M. C.Mehta vs. Union of India, AIR 1987 SC 1086. (2) Action of local authority often arises on account of maladministration. The tax payer comes forward to put the maladministration in its proper order - Municipal Council, Ratlam, vs. Vardichand, AIR 1980 SC 1622. (3) There is steady increase in public injury, public wrong and breach of public duty. The observance of Law is left to the sweet will of authority. The rule of law is seriously impaired. It is absolutely essential that the rule of law wean the people away from the lawless street and win them for the Court of law - S.P. Gupta vs. Union of India, AIR 1982 SC 149. (4) Where there is legal wrong there is legal remedy. It has now wide recognition and enlightened citizens are now taking use of the legal remedy available. (5) The Constitutional provisions - more particularly the fundamental rights - have given several rights and that have encouraged the citizens to take advantage of the provisions of the constitutional provisions.

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(6) The jurisdiction of the High Courts under Article 226 of the Constitution of India has also encouraged the citi~en to avail of the remedy available under the wider jurisdiction of the High Courts. (7) Locus Standi in public interest litigation has lost its shine and therefore, that is encouraging the citizens in taking up the cause against the State under Article 12 of the Constitution of India. CASE LAWS

In Gaurav Jain vs. Union of India, AIR 1997 SC 3021, the apex Court noted that the practice of Devadasis, Jogins and Venkatasin is prevalent in A.P., Karnataka and Maharashtra and in particular the practice of prostitution is notorious. Such practices are void under Article 13 of the Constitution of India and punishable under the Law. They are anti-thetical to the constitutional scheme. The Court directed the Social Welfare Department to undertake the rehabilitation program for such women. In Vineet Narain vs. Union of India, AIR 1998 SC 889, gave several directions to CBI and CVC to make it more efficient and effective. In Bhavani River vs. Sakthi Sugars Ltd., AIR 1998 SC 2578, objectionable effluents from distillery were discharged into the river and adjoining areas. The High Court disposed off the writ petition on the consent of the Pollution Control Board. However, the apex court took it seriously and remanded the matter back to the High Court for its fresh consideration. In Indian Council for Enviro-Iegal Action vs. Union of India, AIR 1999 SC 1502, the apex Court directed the Andhra Pradesh State Pollution Control Board and the Central Pollution Control Board to jointly prepare a scheme for containing the industrial pollution and for disposal of industrial waste as to also for reclaiming the polluted lands and the polluted water supply. In Narmada Bachao Andolan vs. Union of India, AIR 2000 SC 3751, the apex Court held that change in environment does not per-se violate any right under Article 21 of the Constitution especially when ameliorative steps are taken not only to preserve but to improve ecology and environment and in case of displacement, prior relief and rehabilitation measures take place pari passu with construction of dam. In M.C.Mehta vs. Union of India, (1987) 4 SCC 463, a social worker brought to the notice of the court the pollution of the river Ganga. The Court ordered the closure of the tanneries near Kanpur polluting the river Ganga. The Court also directed the Government to spread the information relating to environment through audio-visual media. It also directed the Government to introduce environment as a compulsory subject in schools and colleges. In M.C.Mehta vs. Union of India, AIR 1987 SC 1086, the victims of gas leak at Bhopal were successful in claiming damages through the Public Interests Litigation. In M.C.Mehta vs. Union of India, AIR 1992 SC 382, by a Post Card, the apex Court was informed through a post card that Bounded Labour was in existence in stone-quarries in Faridabad. The apex Court appointed a Commission to visit the said stone-quarries and make inquiries and submit its report to the Court. On receiving the report, the apex Court made it clear that the State is bound to ensure the observance of the labour legislation enacted for

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securing the workmen a life of human dignity and in action the part of the State in implementation of such legislation would amount to denial of the right to live with human .dignity. In M.C.Mehta us. State of Tamil Nadu, AIR 1999 SC 41, the apex Court held that employment of children in the match factories directly connected with the manufacturing process upto final production of match sticks or fireworks should not at all be permitted. The apex Court laid down that children below 14 years cannot be employed in any hazardous industry or mines or other work. In fact, apex Court then issued several directions in the interest of children. In M.C.Mehta us. Union of India, AIR 1998 SC 2963, the apex Court issued directions for checking the vehicle pollution in Delhi. These directions were however modified by the apex Court in M.C.Mehta us. Union of India, AIR 1999 SC 291. M.C.Mehta us. Kamal Nath and Drs, AIR 2000 SC 1997, the apex Court held that environmental pollution is a tort against the community and the Court, in proceedings under Article 32 and 226 can levy exemplary damages on the person found guilty of disturbing the environment.

DOD

CHAPTER-ll ORDINARY REMEDIES OR EQUITABLE REMEDIES SYNOPSIS

1. 2. 3. 4. 5.

What is 'State' Article 12 of the Constitution of India Injunctions and Declaratory Orders as Part of Prerogative Writs History of Specific Relief Injunctions (a) What is injunction? (b) Types of injunctions (i) Prohibitory Injunctions (ii) Temporary Injunctions (iii) Interlocutory Orders (Order XXXIX, Rule 6 of CPC) (iv) Permanent or Perpetual Injunctions AND (v) Mandatory Injunctions (c) When injunctions refused (d) Difference between Injunction and Mandamus 6. The Other Remedies (a) Introduction (b) Liability of the State in Tort (i) Generally (ii) Tortuous Liability How Arises? (iii) Tortuous liability in England, USA and in India (a) England (b) U.S.A (c) India (203)

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204

(I) Pre-Independence Period

(II) Post-Independence Period (iv) Bill under Article 300 of the Constitution of India (c) Liability of the State in Contract (i) Action against the Crown for breach of Contract (ii) Contractual liability in India (I) Pre-independence period (II) Post-independence period (a) Generally (b) Article 299 of the Constitution of India (c) Election Laws and Article 299 of the Constitution of India (d) Ratification (iii) Government Contracts and Article 14 of the Constitution of India (iv) Quasi-Contractual Liability (v) Applicability of Section 65 of the India Contract Act (vi) Contractual Obligations and Writ Jurisdiction (vii) Article 32 of the Constitution of India (viii) Article 226 of the Constitution of India (ix) Contract of Personal Service (x) Liability of the 'State' under Enactment (xi) Doctrine of Estoppel (xii) Estoppel against the Statute

1. WHAT IS ISTATE' Every case in Administrative Law arises out of a controversy between a Citizen and the 'State'. Therefore, it is necessary to understand the meaning of the term 'State'. The King rules his Kingdom. But where there is no monarchism, the 'Kingdom' is ruled by a special 'Devise'. The Special 'Devise', in India, is the Constitution of India. The 'Kingdom' of India's territory is delineated in Article 1 (Schedule 1) of the Constitu.tion of India. While Article 1 (Schedule 1) delineates the territory of Kingdom (of India), Article 12 defines the term 'State' (the King) against whom the citizens can seek redressal of their grievances. In other words, in Article 1 (Schedule 1), the term 'Kingdom' is replaced by the phrase 'territory of India' and, in Article 12, the term 'King' is replaced by word 'State' who is responsible for the deeds and misdeeds in the Kingdom of the territory delineated in Article 1 (Schedule 1) of the Constitution of India.

2. ARTICLE 12 OF THE CONSTITUTION OF INDIA The term 'State' under Article 12 of the Constitution of India (unless context requires otherwise) means and includes (i) the Government (Executives) of India, (ii) the Parliament of

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India, (iii) each of the State Governments (Executives), (iv) each of the State Legislatures and all (v) Local or the (vi) 'Other' authorities within the territory of India. There is much controversy on the 'Other' authorities. In Uniuersity of Madras us. Shanta Bai, AIR 1954 Mad. 67, the Hon'ble Madras High Court had held that the legal phraseology "other authorities" should be construed ejusdem generis with the Government or Legislature and, it so construed; it only means the authorities exercising Governmental functions. But the Hon'ble Supreme Court of India did not accept the view of the Hon'ble Madras High Court and in Ujjam Bai us. State of Up, AIR 1962 SC 1621 and Electricity Board us. Mohan Lal, AIR 1967 SC 1857 it held that the doctrine of ejusdem generis cannot be applied in interpreting the words the "other authorities". From several apex Court rulings and particularly given in Electricity Board us. Mohan Lal, AIR 1967 SC 1857, Ujjam Bai us. State of Up, AIR 1962 SC 1621, Sukhdeu Singh us. Bhagatram, AIR 1975 SC 1331, Gujarat State Financial Corporation us. Lotus Hotels Ltd, AIR 1983 SC 848, the law emerges that the words "other authorities" includes all the authorities created by the Constitution or Statute and on whom powers are conferred by Law, whether or not they are engaged in performing Governmental or sovereign functions. Therefore, the following fall under Article 12 of the Constitution of India:LIC

Sukhdeu us. Bhagatram, AIR 1975 SC 1331

Industrial Finance Corporation

Sukhdeu Singh us. Bhagatram, AIR 1975 SC 1331

Road Transport Corporation

Mafatlal Barat us. Road transport Corporation, AIR 1966 SC 1364

State Electricity Boards

Electricity Board of Rajasthan us. Mohan Lal, AIR 1967 SC 1857

ONGC

Sukhdeu us. Bhagatram, AIR 1975 SC 1331

Whether or not a body falls under Article 12 of the Constitution being the instrumentality of the State is a difficult issue to be determined. However, in Ramana Dayaram Shetty us.· International Authority of India, AIR 1979 SC 1628, the apex Court laid down the following tests for determining as to whether a body is an agency or instrumentality of the Government .I .I .I .I .I .I .I

whether there is any financial assistance given by the State . if financial assistance is given then what is the magnitude of such financial assistance . if financial assistance is given then whether it is of usual kind or it is extraordinary. whether there is any control of the management and policies of the Corporation by the State . if there is control then what is the nature and extent of such control. whether the Corporation enjoys the State conferred or State protected monopoly status and whether the functions carried out by the Corporation are public functions or closely related Governmental functions.

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3. INJUNCTIONS AND DECLARATORY ORDERS AS PART OF PREROGATIVE WRITS The Extraordinary Remedy of Prerogative Writs is the branch of Public Law Remedy. Notwithstanding the fact that any Extraordinary Remedy of Public Law is available, the citizens always have the recourse to the Ordinary Civil Remedy. It is because the 'Law of the Land' sets up a machinery whereby the controversies, wherever and whenever arise. are amicably and constitutionally resolved. The Ordinary Civil Remedy is also called as the Equitable Remedy which is the branch of Private Law Remedy. The remedies like the Injunctions and Declaratory Orders undoubtedly fall under the Civil Law or the Private Law but the remedies (of Injunctions and Declaratory Orders) are absorbed in the Public Law Remedies or the Prerogative Writs. In other words, Injunctions and Declaratory Orders fall both in (1) Civil Law and (2) Law of Prerogative Writs. The discussion on Injunctions and Declaratory Orders is taken up here NOT as a part of Civil Law but as part of Law of Prerogative Writs, falling under Public Law or the Administrative Law. The remedy of Injunction and the Declaratory Order (as a Public Law Remedy -in contradistinction to Private Law Remedy) was more used in India than in England. In this connection, it may be stated that in England, the Courts were vested with powers of exercising Prerogative Writ jurisdiction and hence it was not necessary for the Courts in England to exercise the jurisdiction under Declaratory Orders and hence in England, the remedy of Injunction and the Declaratory Orders was not in much use. But, in India, Prerogative Writ jurisdiction was limited to three Presidency towns -Bombay, Calcutta and Madras. As a result, the Courts used to fall back on the jurisdiction of Injunctions and Declaratory Orders which explains the reason as to why in India, the use of the remedy of Injunctions and Declaratory Orders was more. The remedy in the form of Injunctions and Declaratory Orders, in India, was absorbed in the Specific Relief Act of 1877. The Specific Relief Act of 1877 was replaced by the Specific ,Relief Act of 1967. The specific relief may be explained as relief in specie. It is a remedy which aims at the exact fulfillment of an obligation. For example, a party contracts to sale a century old rare idol. The vendor can be compelled to sell the rare idol in exact fulfillment of the agreement because monetary value is meaningless in the case. The legal remedy, in civil law, is either compensatory or specific. The compensatory remedy is by way of damages. But this remedy may be useless where man is insolvent or where the value of the property -movable or immovable, is incapable of monetary evaluation, say, like a wedding ring or an ancestral idol of family God. In such cases, remedy in 'Specific' is more suitable than the 'Compensatory' relief.

4. HISTORY OF SPECIFIC RELIEF It is difficult to understand the concept and purpose of Specific Relief Act without forming a mental picture of the Britain during the period from 4 th Century to 13th Century because the Act of 1877 is based on the rules and practices of the English Law in relation to the Doctrine of Specific Performance -although the Act of 1877 was drafted mainly basing upon the New York Civil Code of 1862. Britain enjoyed the benefits of Roman Institutions till the recall of the Roman Legion (sort of a military rule) from the Britain about 410 A.D. After the withdrawal of the

ORDINARY REMEDIES OR EQUITABLE REMEDIES

207

Romans, a Collection of Dooms Oudgements} was made available to the Subject of Britain. The Collection of Dooms can be identified as the Written Law of England. But the Collection of Dooms contained only the novel and uncertain portion of Law and the normal and undoubted rules of customary law were not included in that Collection of Dooms. Apparently, because they were too well-known to elders to require any formal enunciation in writing. This unwritten portion of law in Britain came to be known as the Common Law of England. The Collection of Dooms in Britain provided legal remedy to a 'Subject' of England. But if a subject found no remedy in the Common Law, he would complain to the King, as the fountain head of Justice. As a matter of fact, during the late 13 Century, the Common Law Courts had become rigid, stereotyped and incapable of meeting the requirements of the people. The requisite elasticity was provided by the judicial activity of the Chancellor. Hence, the number of such petitions to the King increased to a very great extent and when the Petitions became too numerous, they were made to the Chancellor (a Domestic Chaplain who attended to the secretarial work) as the Keeper of Royal conscience. In this way, the Chancery began as ministerial department and ended as a Law Court. The Remedy of Injunction may be obtained from the Chancery Division if there is no alternative remedy in the form of statutory appeal.

5. INJUNCTIONS (a) What is injunction? (b) Types of injunctions. (i) Prohibitory Injunctions. (ii) Temporary Injunctions. (iii) Interlocutory Orders (Order XXXIX, Rule 6 of CPC) (iv) Permanent or Perpetual Injunctions AND (v) Mandatory Injunctions. (c) When injunctions refused. (d) Difference between Injunction and Mandamus.

(a) What is injunction? The Equitable Remedy is in the form of 'INJUNCTIONS'. The Injunction is similar to the Writ of Mandamus. It is also a Discretionary Remedy. But the 'Discretion' must be exercised judicially. Further, the plaintiff must be an aggrieved person by an act of invasion or is threatening of invasion of his legal or equitable rights. An injunction is (i) an ORDER of the Court (ii) addressed to a party to proceedings before the Court granting the injunction. It is the judicial process by which one who has invaded or is threatening to invade the rights of another is restrained from continuing or commencing such wrongful act. Formerly, the Order of injunction could be obtained against administrative agency but NOT against the Crown because it is an accepted norm that 'Crown Can Do No Wrong'. But in modern India, the 'State' can sue and can be sued. In India, Injunctions can be obtained under Chapter VIII (Sections 36 to 42) of the Specific Relief Act, 1963. But the provisions in Order XXXIX of Code of Civil Procedure, 1908 also apply in the grant of the Injunctions.

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208

Broadly speaking, injunctions are granted for the following:(1) What the administrative agency proposes to do is or would be ultra-vires. (2) The person seeking the Order of Injunction has the 'sufficient interest'. (3) The person seeking the Order of Injunction is aggrieved by the proposed action of the administrative agency. (4) There is no alternative remedy available. The remedy of Injunction is not often used because of the availability of the Writ of Certiorari but (only) if it is not alternative remedy. In Metropolitan Asylum District vs. Hill, (1881) 6 A.C 193, the Court granted injunction to Plaintiff restraining the authority to build Small Pox Hospital for children. In Harrington vs. Sendall, (1908) 1 Ch. D 921 a permanent member was expelled for the reason that he had not paid his increased membership fee. The membership fee was enhanced by majority in the general body meeting in whic)'i the Plaintiff was not present. The unanimous resolution was in breach of the rule of the club. The Court granted injunction restraining I the Club from expelling the Plaintiff. In Bradbury vs. Enfield London Borough Council, (1967) 3 All. E.R. 434, it was incumbent upon the Authority to give Public Notice and invite their objections before setting up any construction. The authority set up the comprehensive school without giving any such notice and without inviting the public objections. The Court restrained the authority by order of permanent injunction from setting up the school. The authority raised the defence that the order of injunction will create chaos. The rejected the defence of the authority holding that if the authority does not fulfill its statutory obligations of giving public notice for inviting public objections and consider them, the Court must see that the authority fulfills its statutory obligations. Further, even if chaos results, Rule of Law must be maintained and obeyed. In B. Prabhakar Rao vs. State of A.P., AIR 1986 SC 210, the Supreme Court of India followed the law laid down in Bradbury vs. Enfield London Borough Council, (1967) 3 All. E.R. 434. In this case before the apex Court, the Government had reduced the age of retirement from 58 to 55. Several Petitions were filed and while those were pending the Government restored back the original age of retirement. The issue was whether the employees who were retired should be taken back in the service. Same defence of 'chaos' was taken and the apex Court The observed "those that have stirred up a hornet's nest cannot complain of being stung". apex Court observed . we are governed by the Constitution and constitutional rights have to be up held. Surely, the constitution must take precedence over the convenience and a judged may not turn a bureaucrat". (b) Types of Injunctions

From the language of Sections 36,37,38 and 39 of the Specific Relief Act, 1963 read with Order XXXIX, Rule 6 of Code of Civil Procedure, 1908, it is clear that there can be following types of Injunctions:(a) Prohibitory Injunctions. (b) Temporary Injunctions. (c) Interlocutory Orders (Order XXXIX, Rule 6 of CPC)

ORDINARY REMEDIES OR EQUITABLE REMEDIES

209

(d) Permanent or Perpetual Injunctions AND (e) Mandatory Injunctions.

(i) Prohibitory Injunction: The Law imbibed in Section 36 of the Specific Relief Act, 1963 makes it abundantly clear that the relief of injunctions is the Preventive Relief. The Preventive Relief is also referred to as the Prohibitory Injunction. A Prohibitory Injunction forbids the defendant to do a wrongful act which would infringe the right of the Plaintiff. Section 36 itself lays down that the Prohibitory or Preventive Injunction may be Temporary or Perpetual. (ii) Temporary Injunction: It is provided in Section 37(1) of the Specific Relief Act, 1963 that the Temporary Injunctions are such: (1) As to continue until a specified time, (2) Until the further order of the Court (3) May be granted at any stage of a suit and (4) Regulated by the Code of Civil Procedure. The Temporary Injunctions are always granted pending the hearing and final disposal of the Suit whereas a Perpetual Injunction is granted after hearing the suit finally. The Temporary Injunction is granted as an interim measure or to preserve the Status Quo or preventing the change in Status Quo. The Temporary Injunction is provisional in nature and it does not conclude or determine the rights of the parties before the Court. Further, a temporary injunction is a mere Order of the Court. It is at the sole discretion of the Court to grant or to refuse to grant the injunction. The 'Discretion' indeed must be judiciously exercised and not capriciously or on extraneous considerations. The Plaintiff seeking Temporary Injunction must, inter-alia, show that he has (i)

an arguable point of law to be tried and therefore, the Court must be satisfied that the Plaintiff's legal rights are infringed - Chandulal us. Delhi Mun. Corpn. AIR 1978 Del. 174. (ii) The Court must be satisfied that there is no adequate remedy open to the Plaintiff for protection of his right. (iii) There is a prima-facie good case. In other words, the Court must be satisfied that the Plaintiff has a prima-facie good case. (iv) The balance of convenience favours the grant of relief pending the trial. or the comparative hardship will be more to the Plaintiff than the Defendant. The Courts must, therefore, be satisfied that the balance of convenience tilts in favour of the Plaintiff. (v) Great prejudice, untold hardship and loss incapable of monetary evaluation, will be caused if injunction is refused. The Court must, as such, be satisfied that its intervention is necessary to protect the Plaintiff from irreparable loss or at least serious injury. Since Provisions of Order XXXIX of Code of Civil Procedure also apply, it is worthwhile to notice those provisions also.

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0.39 R. 1 Where it is proved by affidavit or otherwise that:(a) any property in dispute is in danger of being wasted, damaged or alienated by any party to the suit or wrongfully sold in execution of a decree (b) the Defendant threatens or intends to remove or dispose of his property with a view to defrauding his creditors (c) the Defendant threatens to dispossess the Plaintiff or otherwise cause injury to the Plaintiff. The Court may grant the Temporary Injunctions.

0.39 R. 2 If a Suit is filed restraining the Defendant from committing a breach of contract or other injury, whether compensation is claimed or not, a Temporary Injunction can be claimed, before or after the judgement, restraining the Defendant from (a) committing the breach of contract or (b) causing any injury.

0.39 R. 3 Before granting an injunction, the Court should direct the Plaintiff to give Notice to the Opposite Party. However, no such notice is required to be given before granting the Injunction, where it appears that the object of granting injunction would be defeated by the delay. It is incumbent upon the Court to record its reason as to why it decided to grant injunction without prior notice to the opposite party. In the event the injunction without prior notice to the other side, it is incumbent upon the Plaintiff to serve the other side:The copy of the Application for injunction. (ii) A copy of the affidavit filed in support of the said application. (iii) A copy of the Plaint. (iv) Copies of documents on which the Plaintiff seeks to rely upon. It is also incumbent upon the Plaintiff to file an Affidavit of Service stating that he has given all the above to the other side. The Affidavit of Service has to be filed either on the day of passing the order of Injunction or on the next day. (i)

It may be clearly noted that if Order of Injunction is passed without giving notice to the other side, such relief is called as ad-Interim relieJlOrder. It is usual to hear the parties after the notice. The Court after hearing both sides, may continue to relief it granted earlier until the hearing and final disposal of the suit. In that case, the relief undoubtedly is the interim measure and then such a relief, pending the hearing and final disposal of the suit, is called as the interim relief. The distinction between the ad-interim relief and interim relief is that (usually) the adinterim is granting without notice to the other side and without hearing him. Indeed, the Court may, in order to ascertain prima-facie case hear the parties and for the reasons of urgency and time-limit may grant the ad-interim relief and then again hear the parties before it decides as to whether it is a fit case to grant the interim relief (by way of an injunction) which is always pending the hearing and final disposal of the suit.

ORDINARY REMEDIES OR EQUITABLE REMEDIES

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0.39 R. 4 The order of injunction can be discharged or varied on the application of the party dissatisfied with the order of injunction. The Court can also vacate the Order if it is found that the order of injunction was obtained on false or misleading statements. The Court is vested with powers to discharge or vary or set aside the order of injunction granted by it earlier but after giving notice to the other side for the reason that discharge, variance and setting aside is necessitated by the change in the circumstances or for the reason that the Court is satisfied that by the order of injunction has caused undue hardship to the other party.

0.39 R. 5 If the order of injunction is made against the corporate body, then, such an injunction will also be binding upon the officers of the said Corporation. (iii)

Interlocutory Orders: The term INTERLOCUTORY order is coined in the title of O. 39 R 6 of C.P.e. An interlocutory Order is an Order by way of an aid to the proper adjudication of the claims and disputes, for example, issuing commissions for recording evidence, appointing Court Receiver etc. Such Orders do not finally dispose of any dispute or claims - German D Republic us. Dynamic, AIR 1972 Bom. 27. Section 397 (2) of Cr. P.e. lays down that the powers of revision shall not be exercised in relation to any interlocutory orders. Necessarily, therefore, the Courts exercising the revisional powers under Criminal Procedure Code will have to decide whether the order impugned before it is an interlocutory order or not and if it is interlocutory order, it must not exercise its powers. Whether it is an interlocutory order or not cannot be decided by merely looking at the order. So also, because the order was passed at an interlocutory stage it cannot be said that it is an interlocutory order. The feasible test is whether by upholding the objection it would result in culminating (ending) the proceedings; if they would then the order is not an interlocutory order - Bhaskar Industries Ltd. us. Bhawani Denim & Apparels Ltd. 2002 (1) M.L.J. 81. The interlocutory order as well as the interim relief order, both, are passed at interlocutory stage or pending the hearing and final disposal of the case but the interim relief order is passed on the basis of urgency. Whereas, urgency is no criteria in the case of interlocutory order because the interlocutory order is passed to assist the Court or to assess and ascertain the nature of dispute and it is passed in aid of proper adjudication of the claims. It is prudent rule of law not to grant the final relief at the interim stage, nevertheless such orders of interim relief are passed. For example, an employee seeks reinstatement and urgency demands, in the case, that the Court grants reinstatement because it may be futile for an employee if he is granted reinstatement after the final hearing of the case. Therefore, by interim relief, the Court may grant the reinstatement. What is noteworthy is that interim relief is granted looking at the urgency in the matter and delay might defeat the purpose. Now take a case in which not one employee but large number of employees seek reinstatement and it is not possible for the Court to record evidence by itself. The Court may, therefore, by an interlocutory order, appoint a Commissioner to record evidence. This order is passed in aid of proper adjudication of the case and urgency is no criteria to pass the order.

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(iv)

Perpetual or Permanent Injunctions: The Specific Relief Act, 1963 under Sub-Section

(2) of Section 37 lays that a perpetual injunction can ONLY be granted by the Decree (final Order) made at the hearing and upon the merits of the suit. On Court granting the Perpetual Injunction, the Defendant is perpetually or permanently restrained from assertion of a right, or from the commission of an Act which would be contrary to the rights of the Plaintiff. Section 38 makes it abundantly clear that the Perpetual Injunction can ONLY be granted SUBJECT to the provisions contained in or referred to by Chapter VIII of the Specific Relief Act. The Perpetual Injunction under Section 38 can be granted:(1) To prevent the breach of an obligation. (2) The obligation must be in favour of the Plaintiff. (3) It must be an existing obligation. (4) The obligation may be express or implied. (5) If the obligation arises under any Contract, the Court shall be guided by the provisions of Chapter II of the Specific Relief Act, 1963. (6) When Defendant invades or threatens to invade Plaintiff's right to or enjoyment of property. (a) Where the defendant is trustee of the property for the Plaintiff. (b) Where there exists no standard for ascertaining the actual damage caused or likely to be caused. by the invasion of Defendant. (c) Where the invasion is such that compensation in money would not afford adequate relief. (d) Where the injunction is necessary to prevent a multiplicity of judicial proceedings. From the above provisions of the Specific Relief Act, it should be clear that when a Suit filed by the Plaintiff and it is finally heard and disposed of by the Court, it grants the relief in the nature of Perpetual or Permanent Injunction. However, the Permanent or Perpetual Injunction may not have the perpetual effect. It may be for a fixed period or for a period which is extendable with the leave of the Court or for an indefinite period terminable when conditions imposed by the Court have been complied with or its operation may be suspended for a period during which the defendant is given the opportunity to comply with the conditions imposed on him in which case, the Plaintiff is given leave to reply. (v)

Mandatory Injunctions: The Specific Relief Act, 1963 under Section 39 lays down that

the Court may grant Mandatory injunction (1) to prevent the breach complained of and (2) to compel the performance of the requite acts so as (3) to prevent the breach of an obligation or (4) when it is necessary to compel the performance of certain acts which the court is capable of enforcing. Thus, the Mandatory injunction:is the COMMAND to prevent the breach complained of and (b) to do a particular act; (a)

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213

to compel the performance of the requisite act. (d) to restore things to their former condition; (e) to and it that which was done. (c)

PROHIBITS

the Defendant from continuing with wrongful act and IMPOSES DUTY

upon Defendant to do a positive act.

If the Plaintiff complains that his house is likely to be demolished by the civic authority, he can obtain an injunction retraining the authority from demolishing the house. He can also ask the authority to rebuild his house, if already (wrongfully) demolished. It must be clearly noted that for the grant of an injunction, there must exist legal obligation upon the Defendant to perform certain acts and in addition to it, the Court must be capable to enforce them. (c) When injunctions refused

Section 41 of the Specific Relief Act clearly lays down as to when an injunction can be refused. An injunction can be refused:(i) (ii) (iii) (iv) (v) (vi) (vii)

to restrain a person from prosecuting his legal remedy, civil or criminal or to approach the superior court. to restrain a person from applying to any legislative body. to enforce a contract incapable of performance either because it is prohibited by law or it is not possible to execute, or the contracts of personal performances. to prevent continuing breach when plaintiff has acquiesced or agreed to it. when equally efficacious remedy is available. when the conduct of plaintiff is such that he has disentitled himself from the relief or when plaintiff has not approached the Court with clean hands. when the plaintiff has no locus or has no personal interest.

(d) Difference between Injunction and Mandamus

When a dispute or 'lis' between a citizen and the 'State' arises, it can be resolved in two ways, (1) by adopting ordinary civil remedy and (2) by resorting to extraordinary remedy. The extraordinary remedy is as given by the Constitution. The ordinary civil remedy, inter-alia, is that of the 'injunction'. The remedy of 'injunction' though originally pre-eminently Private Law remedy, but has come to be absorbed in Public Law -as discussed above. A fine distinction between the two is most difficult, however, it can be said that the two differs in the following way:(1) The mandamus can be issued only by the High Courts injunctions can be issued by any court of competent jurisdiction - Manoharlal us. Seth Hiralal, AIR 1962 SC 527. (2) Mandamus cannot be issued against the private parties injunctions can be issued even against the private parties. (3) The injunctions can be barred under a Statute, not the mandamus, it being a constitutional remedy.

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(4) The Courts do entertain 'disputed questions of fact' but refuse to go into 'disputed questions of facts' under mandamus. (5) The mandamus, being extraordinary remedy, is refused if alternative remedy is available but not the injunction if mandamus is available. (6) A notice of two months under Section 80 of c.P.C. is necessary unless dispensed with by the Courts for seeking injunction against the government. No such notice is required for seeking relief under mandamus. (7) Article 226 (6) of the Constitution of India imposes s ban on injunction or stay in specified cases. No such restriction is found in the Specific Relief Act and hence the powers of civil courts to this extent are wider than the powers of High Courts under Article 226 of the Constitution of India.

6. THE OTHER REMEDIES (a) Introduction. (b) Liability of the State in Tort. (i) Generally. (ii) Tortuous Liability How Arises? (iii) Tortuous liability in England, USA and in India. (a) England. (b) U.S.A. (c) India. (I) Pre- Constitution Period. (II) Post- Constitution Period. (iv) Bill under Article 300 of the Constitution of India. (c) Liability of the State in Contract. (i) Action against the Crown for breach of Contract (ii) Contractual liability in India (I) Pre-independence period (II) Post-independence period (a) Generally (b) Article 299 of the Constitution of India (c) Election Laws and Article 299 of the Constitution of India (d) Ratification (iii) Government Contracts and Article 14 of the Constitution of India (iv) Quasi-Contractual Liability (v) Applicability of Section 65 of the India Contract Act (vi) Contractual Obligations and Writ Jurisdiction (vii) Article 32 of the Constitution of India

ORDINARY REMEDIES OR EQUITABLE REMEDIES

(viii) (ix) (x) (xi) (xii)

215

Article 226 of the Constitution of India Contract of Personal Service Liability of the 'State' under Enactment Doctrine of Estoppel Estoppel against the Statute

(a)

Introduction: The Legal maxim says 'ubi jus ibi remedium' (wherever there is a right there is a remedy). But what remedies are available to an aggrieved person, it will have to be considered in the light of the maxium, especially against the Crown or the State or the Government of the day. In the foregoing paragraphs it has come to be recorded that it was the Crown's prerogative to know, at all times, everything about the kingdom. Thus, the King wishing to be informed of the wrongdoings of his Kingdom would issue a royal prerogative or the Writ. But with the advent of time it no longer remained the prerogative of the King, inasmuch as even the "Subject" could apply for the Writ. Therefore, it is the FIRST REMEDY to seek Writ against the Crown or the State or the Government. The SECOND REMEDY is the Equitable Remedy in the form of 'Injunctions' and the 'Declaratory Orders'. However, it must clearly be noted from the foregoing discussion that the Injunctions and Declaratory Orders although fall under Public Law nevertheless have been absorbed in the Public Law or under the Law of Writs. As such, the Injunctions and Declaratory Orders may not be treated as a separate remedy, different than the Writs, nevertheless, Injunctions and the Declaratory Orders are the another form of the remedy available to aggrieved citizens against the Government. Barring the above TWO remedies, viz., Writs and Injunctions-Declaratory Orders, there is yet the THIRD REMEDY. It is identified as the OTHER REMEDIES. It is in the form of Ordinary Civil Remedy. The Ordinary Civil Remedy is in the claiming of Compensation and Damages in Torts and Contracts.

(b)

Liability of the 'State' in Torts (i) Generally: "The King can do no wrong" is the most eloquent theory having its roots in the feudalism. But in the political sphere too it came to be accepted on the analogy that when the administration was badly conducted, it is not the King who can be faulted with but his Majesty's Ministers who must have given the faulty advice! Therefore, the Crown servant could be sued in respect of a tort he committed in the course of his employment. No doubt. the Crown Servant held personally liable could rely on an indemnity from the Crown. However, when the practice of putting up 'nominated defendants' (the dummies as defendants, to save the skin) - who were well indemnified by the Crown - grew up, the Courts refused to accept such a device. In Adam vs. Naylor, (1946) 2 All E.R. 241, the House of Lords refused to tolerate 'palpable fiction'. The device of nominated defendant suggested that the Courts were concerned with the Plaintiff and the Defendant and had nothing to do with the fact that the Crown stood behind the defendant (dummy put up by the concerned department). After this ruling and subsequent widespread discussion, the British Parliament abolished the immunity of Crown under the Crown Proceedings Act, 1947. This enactment deals with the Crown's liability in Torts and Contracts.

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(ii)

(iii)

(a)

(b)

(1) (2)

(3)

(c)

Tortuous Liability How Arises? Tort is the Civil Wrong independent of Contract. But if the 'King can do no wrong', he cannot be faulted with and held liable for the civil wrong. Although not the King himself personally be held responsible for the civil wrongs yet, if his Ministers who must have given the faulty advice can be faulted with and held liable for the civil wrong. In modern world, when there is no monarchism, it can be understood with reference to the 'State'. The 'State' is not the living person and hence it cannot by itself carryon its activities. It, therefore, carries on its activities through the human agency of its servants and agents. The servants and agents of the State therefore can be held liable for the civil wrong they have done in the course of their employment with the State. Tortuous liability in England, USA and in India ENGLAND: The old artificial theory of "King can do no wrong", as aforesaid, was finally abolished and the Crown could be sued for contracts, torts and allied matters. However, the escape clauses were very limited and hence the question remained whether the Executive in the national interest could retain the right to change its mind after entering into a contract and whether he could not be hindered in his contractual obligations. It is thus not clear, whether the Doctrine of "Executive Necessity" could be set up as Defence, unless specifically averred in contract, in an action for breach of contract by the Crown. U. S. A.: The Federal Tort Claims Act was passed in U.S.A. in 1946 by the Congress with the object to abrogate the immunity of Federal Government's liability for the torts committed by its servants. However, the following exceptions were carved out. Specified administrative functions or agencies and the claims arising in foreign countries are excluded. No liability arises for the Claims arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander etc. No liability accrues when Federal Officers or the Employees exercise their discretionary powers with due care and caution, notwithstanding the fact that the act causing the damage was done negligently. INDIA

(I) PRE-CONSTITUTION PERIOD

The old theory, "King can do no wrong" was not accepted in India also. Section 65 of the Government of India Act, 1858 in substance, provided that Secretary of State-in-Council shall and may sue and be sued and may have and take the same units, remedies and proceedings, legal and equitable, against the Secretary of State-in-Council of India as they could have against the East India Company. The Government of India Act, 1858 was replaced by the Government of India Act, 1915 but the new Act maintained the same old position. The Government of India Act, 1915 was then replaced by the Act of 1935 but the position remained substantially the same. The Government of India Act, 1935, in fact, is considered to be the then Constitution of India.

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217

In Peninsular and Oriental Steam Navigation Co. vs. Secretary of State of India, 5 Born. H.C.R. App. 1, the Plaintiff's servant was passing through the dockyard area in a carriage driven by horse. Some workmen, ahead of the carriage, walking in the middle of the road, were carrying a heavy piece of iron for the repair of a steamer. Seeing the carriage, the workmen negligently dropped the iron piece and moved to the side of the road. The horse, frightened by the clang of the iron, rushed forward against the iron and was injured. The then Supreme Court of Calcutta noted that the East India was not only carrying on the administration of the country on behalf of the British Crown but also it was engaged in commercial functions, the nonsovereign functions but as the maintenance of dockyard was not a sovereign function, it held that the Secretary of State of India was liable for the negligence of his servants. (II) POST-CONSTITUTION PERIOD

After, framing of the Constitution of India, it is provided under Article 300 of the Constitution of India that the Union of India or a State is a juristic person and they may sue or be sued by the name of the Union of India or of the State respectively. It also lays down the Union of India or a State may similarly sue or be sued for the corresponding Provinces or the corresponding Indian States, as they might have sued or been sued if this Constitution would not have been enacted. In State of Rajasthan vs. Vidyawati, AIR 1962 SC 933, after the jeep was repaired, the government servant was driving it from workshop to the residence of the Collector rashly and negligently. He knocked down a pedestrian who died after three days. The government was held vicariously liable for the tortuous acts of its servants. In Kasturilal Ralia Ram Jain vs. State of Up, AIR 1965 SC 1039, the apex Court took the view that the case of Vidyawati appears to be confined to tortuous liability of the 'State' not arising from the exercise of sovereign functions. In this (Kasturilal's) case, on suspicion of possessing stolen property, the Police had arrested the Plaintiff, searched him and seized large quantity of gold from him. Later on, the Plaintiff was released but the seized gold was not returned to him because the Head Constable in charge of Malkhana was absconding with valuable property including the gold. The Plaintiff filed a suit for the gold or compensation therefor. The arrest, search and seizure being the part of the 'sovereign functions', the Government of U.P' was not held liable for the compensation for loss of the Gold. The Court held that if tortuous act is committed by a public servant and it gives rise to a claim for damages, the question to ask is: was the tortuous act committed by the public servant in discharge of statutory functions which are referable to and ultimately based on, the delegation of sovereign powers of the 'State' to such public Servant? If the answer is in affirmative, the action for damages or loss caused by such tortuous act will not lie. But if the answer is negative, an action for damages will lie. In State of Gujarat vs. Memon Mohamed Hasan, AIR 1967 SC 1885, Respondent's certain goods were seized by the Custom Authorities but finally, the order of confiscation was set aside and the authorities were directed to return the goods. The Court held that the government is bound to return the property or to pay its value if it had disabled itself from returning it either by its own act or by any act of its agents and servants. In Basawvva (Smt) Patil vs. State of Mysore, AIR 1977 SC 1749, some ornaments were stolen from the house of appellant. They were recovered by the Police. While the accused was produced before the Court, the Police retained the property but later on those were stolen. After

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the disposal of the case, the appellant applied to the Magistrate for the return of the property. The Magistrate rejected the application for the return of the property on the ground that the property was not given to the Court. The Magistrate's Order was confirmed by the Session Court and the Mysore High Court. The Supreme Court set aside the orders of the lower courts and ordered the State to pay cash eqUivalent of the property to the appellant. In this case, the apex Court did not refer to the cases of Vidyawati -AIR 1962 SC 933, Kasturi Lal - AIR 1965 SC 1039 and Memon Mahmed AIR 1967 SC 1885. But the ruling given in Memon Mahmed AIR 1967 SC 1885 was confirmed. The TEST or PRINCIPLE that emerges is so simple as to say that if it is the sovereign function, the State is not liable in Tort. But it is difficult to be so simple because the test to decide 'sovereign function' eludes simplicity. In Shyam Sunder us. State of Rajasthan, AIR 1974 SC 891, the PWD truck was engaged in the famine relief work. The driver while driving it negligently killed a person. The apex Court held that famine work is not the sovereign function and hence the State was liable for damages. (iu)

(c) (i)

Bill under Article 300 of the Constitution of India: All said and done, the position of law is as is unclear as it is and hence it is desirable that a legislation, on the subject matter, is enacted; it is all the more so when the legislature is fully competent to do so under Article 300 of the Constitution of India. In fact, a Bill was prepared and introduced in Parliament in 1965 it lapsed. It was reintroduced in 1967 but again it lapsed; and there it stands as it is. However, the bright feature is that the liability of Government for violation of the right to life and personal liberty and the other fundamental rights is concerned the citizens are well protected under the Constitution of India. Not only that but also wherever the Courts are vested with Writ Jurisdiction the citizens are equally well protected. It is only when no writ jurisdiction is vested in the Courts and the citizen is seeking ordinary civil remedy in the ordinary civil Court that he has to fall on the provisions of Article 300 of the Constitution of India. Liability in Contract Action against the Crown for breach of Contract: The subject wishing to sue the Crown for the breach of contract had to file a 'Petition of Right' requesting the Crown to do 'right' thing in the matter. The procedure of the "Petition of Right" was rationalized by the Petitions of Right Act, 1860. It is argued that the Executive, in the interest of the nation, must in certain (undefined) circumstances retain the right to change its mind and may not be hindered by contractual obligations. It was the "Executive necessity". Crown did not intend to make a binding promise, but only expressed its future intentions, which in the event were subsequently altered. In Rederiaktiebolaged Amphitrite us. R, (1921) 3 KB 500, there was an arrangement between the Swedish Owners of a ship and British Legation. This arrangement was subsequently changed by the Home Department. In a proceedings under the 'Petition of Right', it was held that an expression of intention to act in a particular manner made on behalf of the Crown could not be made binding on the Government. As such the petition was unsuccessful. The immunity of Crown for breach of contract, in nineteenth Century, was rigidly applied. However, after passing of the Crown Proceedings Act, 1947, the Crown is just like an ordinary litigant.

ORDINARY REMEDIES OR EQUITABLE REMEDIES

(Ii)

219

Contractual liability in India

(I) Pre-independence period Before independence, the liability of the Government of India was clearly spelt in provisions of the Government of India Act, 1833. This Act was replaced by the same title in 1858, then in 1915 and again in 1935. However, there was not much difference in the provisions so far as the liability of the government was concerned. Section 175 of the Government of India Act, 1935 contained the similar provisions as are given in Article 298 of the Constitution with regard to the Government's liability. From the ruling of the apex Court given in the case of State of Rajasthan us. Vidhyawati, AIR 1962 SC 933, it is noticed that the liability of the government for breach of contract in India was recognized inasmuch as the East India Company was held liable to pay interest on promissory notes in the case of Bank of Bengal us. East India Co. (1831) 1 Bign. Rep. 120. (II) Post-independence period (a) Generally: Article 298 of 'the Constitution of India vests powers in the Union of India and each State in the Union of India (i) to carry on any trade or business and (ii) to acquisition, (iii) holding and disposal of property and (iv) making of contracts for any purpose. Article 299 of the Constitution of India then states that all contracts shall be expressed to be made either by the President of India or the Governor of the State, as the case may be. However, the contracts and the assurances of property can be executed by such person and in such manner as may be directed or authorized by the President or the Governor. But the President or the Governor is not personally liable. Necessarily, therefore, it means that the Contract with the Government (Central or State) will be valid only and only if:(i) The Contract must be executed. The term 'executed' shows that it must be in writing - Bukhraj Jaipuria us. Union of India, AIR 1962 SC 879, Chatturbhuj VehaldasJaswani us. Moreshwar Parashram, IR 1951 SC 236. Karmarhi us. State of Bombay, AIR 1964 SC 1714. However, the term 'executed' cannot be stretched too far to say that there must be a formal Agreement or Contract. If 'offer' and 'acceptance' can be read in the correspondence, a valid Contract can be construed in compliance with the provisions of Article 299 of the Constitution of India - Union of India us. Rallia Ram, AIR 1963 SC 1685. (ii) The Contract must have been made in the name of the President of India, if the Contract is with the Central Government or the Contract must have been made in the name of the Governor of the concerned State, if the Contract is with the State Government. In Union of India us. S.S.H. Syndicate, AIR 1976 SC 879, it was held that the contract will not be binding on the Government if it is not expressed to be made in the name of the President or the Governor and just because it was made by the person authorized by the President or the Governor . will not make the contract binding on the Government. (iii) The Contract is not valid if it is not executed by the person authorized by the President or the Governor. In Union of India us. N.K.Ltd., AIR 1972 SC 915, the Director was authorized to execute the Contract but instead of Director the Secretary executed the contract. It was held that the contract was not valid because it was not executed by the Officer who was authorized by the President.

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While it is true that only the person authorized must execute the contract, it is also equally true that the 'authority' of the person executing the contract can be read from correspondence, evidence or the facts of the case and it is not necessary that the 'authority' should have been given under some Rules or under formal notification. In other words, the 'authority' may be express or implied. In Bhikraj Jaipuria us. Union of India, AIR 1962 SC 113, the apex Court held that although no formal authority was given to the Divisional Superintendent, he had the implied authority to execute the contract, but the contract itself was invalid because it was not made on behalf of the then Governor-General. In State of Bihar us. KC. Thaper, AIR 1962 SC 110, the Government had given authority by special mode and hence, on the facts of the case, it was held that the officer had the authority to enter into contract on behalf of the Government. (b) Article 299 of the Constitution of India: Article 299 of the Constitution of India

is applicable only to contracts executed in exercise of 'Executive' powers and not to those (contracts which are executed) under 'Statutory' powers - Steel Authority of India us. State of MP, AIR 1999 SC 1630. But if Article 299 is attracted then the provisions contained in Article 299 are mandatory and not directory. Therefore, the contracts in contravention of the provisions in Article 299 are void and unenforceable. In Mulam Chand us. State of M.P, AIR 1968 SC 1218, the apex Court held that if the contract is made in contravention of the provisions of Article 299, it is void, and in that case, there is no question of ratification. However, an exception can be carved out to say that when government derives the benefit from such a void contract, the Government is held liable under Section 70 of the Indian Contract Act. Section 70 prevents an unjust enrichment and lays down that where a person lawfully does anything for another person or delivers anything to him and such person enjoys the benefit, the latter is bound to make compensation to the former. Section 70 of the Indian Contract Act is applicable to the Government as much as it is applicable to individuals - State of Bihar us. B.KMondal, AIR 1962 SC 779. In fact, it is necessary to note that Section 70 of the Indian Contract Act is not based on any subsisting contract between the parties but it is based on quasi-contract or restitution. In Raunaq International Ltd. us. 1. VR. Constructions Ltd. AIR 1999 SC 393, the Supreme Court of India held that in case of Government Contract, the Court should not interfere with it unless substantial public interest is involved or grant is malafide. However, in Mahabir Auto Stores us. Indian Oil Corporation, AIR 1990 SC 1031, the apex Court held that if the contractual action of the Government is arbitrary, it (arbitrary contractual action of Government) can be questioned in the proceedings under Article 32 or 226 of the Constitution of India. (c)

Election Law and Article 299 of the Constitution of India: In Chaturbhuj Vithaldas Jasani us. Moreshwar, AIR 1954 SC 779, it was contended that a partner in a company cannot contest the election for being elected as Member of Parliament if the Company has entered into a contract with the Government. It was contended that since the agreement with the government did not comply with the provisions of Article 299 of the Constitution, it was not a valid contract and as such null and void. In the

ORDINARY REMEDIES OR EQUITABLE REMEDIES

221

circumstances, the partner of the company can contest the parliamentary election. The apex Court held that though the requirements of Article 299 of the Constitution are mandatory, the non-compliance with the article did not make the contract nonexistence for the purposes of the election law. In Abdul Rahiman vs. Sadasiva, AIR 1969 SC 303, the apex court reiterated the legal position and held that although civil suit for enforcement of a contract which does not comply with Article 299 would not lie; the existence of such an invalid contract also may act as disqualification for being a Member of Parliament.

(d) Ratification: In Mulam Chand vs. State of M.P., AIR 1968 SC 1218, the apex Court held that if the contract is made in contravention of the provisions of Article 229, it is void, and in that case, there is no question of ratification. (iii)

Government Contracts and Article 14 of the Constitution of India: Article 14 of the Constitution of India lays down that the State under Article 12 of the Constitution of India shall not deny to any person equality before the Law or the equal protection of the laws within the territory of India. In S.K. Achutan vs. State of Kerala, AIR 1959 SC 590 took the view that in the matter of Contract, it is left to the State to choose any person it chooses. If the Government chooses one person in granting the contract against the other person who is refused in awarding contract cannot claim protection of Article 14 of the Constitution of India. However, in Ramana Dayaram Shetty LIS. International Airport Authority, AIR 1979 SC 1628, Union of India vs. Hindustan Development Corporation, (1993) 3 SCCC 499, Tata Cellular vs. Union of India, AIR 1996 SC 11 the apex Court took the view that the Government does not enjoy an absolute discretion and it must choose the party in non-discriminatory manner. In Hansraj H. Jain vs. Sate of Maharashtra, (1993) 3 SCC 634, Tata Cellular LIS. Union of India, AIR 1996 SC 11 the apex Court held that if Government is dealing with public, it cannot act arbitrarily and at its sweet will. The Government is bound to act reasonably, fairly and in conformity with laid down norms which are not arbitrary, irrational or irrelevant. The Government has the liberty to refuse to enter into Contract with anyone. But when it chooses to enter into Contract then it cannot arbitrarily choose any person it likes for entering into such contractual relationship and discriminate between persons similarly circumstananced. In such condition, it must act in conformity with some standard or principle which meets the test of reasonableness and non-discriminatory grounds. In Food Corporation of India vs. Kamdhenu Cattie Feed Industries, (1993) 1 SCC 71, the apex Court held that the fairness and non-arbitrariness in action and due consideration of legitimate expectation of affected party are essential requisites for a valid State action. In Tata Cellular vs. Union of India, AIR 1996 SC 11 the apex Court held that the Government has a right to refuse the lowest tender inasmuch as right to choose cannot be considered to be an arbitrary power. But in no case the Government can ignore the principles laid down in Article 14 of the Constitution of India. In Joseph Vilagadan us. Executive Engineer, AIR 1978 SC 930, Harshankar vs. Deputy Excise and Taxation Commissioner, AIR 1975 SC 1121 the apex Court held that before a person is black listed for entering into contract with the Government, he must be given an opportunity of being 'heard'.

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(iv)

Quasi-Contractual liability: There may not be a Contract between the parties but Section 70 enables the party who has actually supplied goods or renders some services, not intending to do gratuitously, to claim compensation, on equitable grounds, from the person who has enjoyed the benefit - Hansraj Gupta & Co. vs. Union of India, AIR 1973 SC 172. Section 70 of the Indian Contract Act is not based on any subsisting contract but it is based on quasi-contract, State of Bihar vs. B.K.Mondal, AIR 1962 SC 779, Mulchand vs. State of MP, AIR 1968 SC 1218. It means that if provisions of Article 299 are not complied with, the Contract is null and void and hence the party entering into a contract with the Government cannot base its claim on such a void contract. However, if the requirements of Section 70 of the Indian Contract Act are fulfilled, the party who has actually supplied the goods or rendered the services to the Government can claim compensation from the Government which has enjoyed the fruits of the void contract - Mulam Chand vs. State of MP, AIR 1968 SC 1218. In State of Bihar vs. B.K.Mondal, AIR 1962 SC 779, the apex Court held that while a party is entitled to recover compensation from the other party (Government) under Section 70 of Indian Contract Act, nevertheless, the Other Party must have the freedom to accept or reject the contract and acceptance and enjoyment of benefits must be voluntary.

(v)

Applicability of Section 65 of the India Contract Act: Section 65 of the Indian Contract Act lays down that when the Contract is discovered to be void or when a contract becomes void, the One party which has advanced any amount to the other party can recover the same from the other party. As such, if contract is discovered to be void or when the contract becomes void for non-compliance of Article 299 of the Constitution of India, the Government under Section 65 of the Indian Contract Act can recover the amount advanced to the party which has entered into the contract with Government. Contractual Obligations and Writ Jurisdiction: It must be recalled that it was the Crown's prerogative to issue 'Royal Prerogative' or the Writ. But with the advent of time, even the "Subject" could apply for the Writ and that is how, the Writ became available to subject or the ordinary citizen. The Writ became available to Subject or the ordinary Citizen over and above (i) the 'Injunction' or 'Declaratory Orders' and (ii) the Compensation and Damages in Torts and Contract. While the Writ is the 'Extraordinary Remedy' the other remedies are not, and as such, the Writ remedy could be availed of only when no other remedy was available. When Writ remedy is available and when not available is discussed in detail in earlier chapter of this book and therefore further discussion on Writ remedy is avoided but a discussion on its broad features could not be avoided to render clear understanding of the 'Contractual Obligations' of the Government. Article 32 of the Constitution of India: The jurisdiction of Supreme Court under Article 32 of the Constitution is not intended to facilitate avoidance of contractual obligations voluntarily incurred - Premji Bhai Parmar vs. Delhi Development Authority, AIR 1980 SC 738. The Supreme Court under Article 32 of the Constitution of India can issue Writ for enforcement of fundamental rights. Since 'Contractual Rights' are not the fundamental rights, no writ can be issued for the enforcement of the 'Contractual Obligations' -

(vi)

(vii)

ORDINARY REMEDIES OR EQUITABLE REMEDIES

223

Satish Chandra vs. Union of India, AIR 1953 SC 250, Cooverjee vs. Excise Commissioner, AIR 1954 SC 220. A person enters into a contract with the Government and is entitled to certain benefits under the said contract. He cannot approach the Supreme Court under Article 32 of the Constitution for enforcement of his contractual rights - Achutan vs. State of Kerala, AIR 1959 SC 490, Radhakrishna Agarwal us. Suptd. Of Bihar, AIR 1977 SC 1496. The Petitioner purchased a flat from the Respondent Authority. He filed a petition under Article 32 of the Constitution contending that the surcharge collected by the authority was illegal and violative of Article 14 of the Constitution. The apex Court rejected the petition and held that even if the Petitioner's rights under Article 14 are violated, the relief of refund cannot be the subject matter of petition under Article 32 of the Constitution - Premji Bhai Parmar vs. Delhi Development Authority, AIR 1980 SC 738.

(viii)

(ix)

Article 226 of the Constitution of India: Powers of High Courts under Article 226 of the Constitution are very wide and not confined to fundamental rights; nevertheless, remedy under Article 226 is not intended to be used for the purpose of declaring the private rights of the parties. High Court will not exercise its writ jurisdiction to enforce contractual obligations - Radhakrishnn Agarwal vs. Suptd. of Bihar, AIR 1977 SC 1496, State of Punjab vs. Balbir Singh, AIR 1977 SC 1717. Where a Petitioner makes a grievance of breach of promise by the State, in cases where on assurance or promises made by the State, he has acted to his prejudice and • predicament, but the agreement is sort of a contract within the meaning of Article 299 of the Constitution, the contractual obligations arising from such promises and assurances of the State are enforceable under Article 226 of the Constitution of India on applying the doctrine of 'Promissory Estoppel - Radhakrishna Agarwal vs. Suptd. of Bihar, AIR 1977 SC 1496, Union of India vs. Anglo-Afghan Agencies, AIR 1968 SC 718, Express Newspapers (P) Ltd. vs. Union of India, AIR 1986 SC 872. If a contract is entered into in exercise of statutory powers under certain enactments or rules framed thereunder and if there is a breach, by the State, the aggrieved citizen can move the Court under Article 226 and the Court in exercise of its writ jurisdiction can grant the relief to the aggrieved person - District Forest Officer vs. Ram Sanchi Singh, AIR 1973 SC 205, Radhakrishna Agarwal vs. Suptd. of Bihar, AIR 1977 SC 1496. Contract of Personal Service: In England, the Servant of the Crown holds his post during the "pleasure" of the King. The King, therefore, has the power to dismiss a servant at his pleasure. As such, the Crown is not bound to show good cause for dismissal and, if a servant has any grievance, his remedy is appeal. However, where the law authorizes the making of 'Doctrine of Pleasure' to be qualified, it has to be given effect to. As such, in Reilly vs. The King, (1934) A.c. 176, the Privy Council held that if terms of appointment expressly provide for power to determine the contract 'for cause', it necessarily follows that power to dismiss 'at pleasure' is excluded. It may further be noted that the general principle of law is that the 'Contract of Personal Services' cannot be enforced. As such, in several cases, like Arya Vidya Sabha vs. K.K. Sirvastave, AIR 1976 SC 1073, Ku/chhinder Singh vs. Hardaya Singh, AIR 1976 SC 2216, it is held that even by filing Writ Petition, the Contract of Personal

224

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(x)

(xi)

Services cannot be enforced. However, there are always exceptions to the general rule. The EXCEPTIONS to the general rule that personal contracts cannot be enforced are (1) cases of public servants falling under Article 311 of the Constitution of India, (2) cases where the statutory bodies have flouted the mandatory provisions and (3) cases falling under the Labour Laws. In UP State Warehousing Corpn. us. C.K.Tyagi, AIR 1970 SC 204, the Hon'ble Supreme Court of India held that when statutory status is given to an employee and if there is violation of statute, he is entitled to get the relief (a) of declaration that the termination is null and void and (b) for continuity of service because it is not a mere case of master terminating the services of his servant. Liability of the 'State' under Enactment: The modern trend in administrative law is to arrive at a more perfect equation between the State and citizens and, therefore, the 'State' under Article 12 of the Constitution of India, is also subjected to the same rights and liabilities which the State has imposed on others. In Director of Rationing and Distribution us. Corporation of Calcutta, AIR 1960 SC 1355, the majority view was that State was not bound by the penal or taxing law. However, dissenting view was that such a view inconsistent with the democratic and republican nature of the government which the Indian Constitution envisages. The dissenting view was later on adopted in State of WB us. Corporation of Calcutta, AIR 1976 SC 997. In this case, the State of West Bengal was carrying on the business of running a daily market without a license from the Civic Authority as required under the Calcutta Municipal Act. Therefore, the Calcutta Municipal Corporation filed a complaint in the Court of the Presidency and Municipal Magistrate for contravening the provisions of the enactment. The apex Court then overruled its earlier ruling -given in the case of Director of Rationing and Distribution AIR 1960 SC 1355 and held that State is bound by the statute. The apex Court also held that in any case, if it so chooses, the State can exempt itself from the vigor of the enactment. Such an exemption can be express or implied and whether the State has exempted itself from the vigor of the Act or not can be read from the intent and purport of the Act. Using enabling statutory power to interfere in binding agreement between two companies is improper. Central Dairy Farm us. Glindia Ltd. AIR 2003 SC 450l. Doctrine of Estoppel: The Doctrine of Estoppel is often described as a rule of evidence but it is in fact, the Rule of Law, nevertheless, in Section 115 of the Indian Evidence Act, 1872 it is fully embodied. The Doctrine of Promissory Estoppel is species of Estoppel and it lays down that a person, who by some statement or representation of facts causes another person to act to his detriment in reliance on the truth of it, is not allowed to deny it later even though it is wrong. This doctrine is evolved by equity to avoid injustice or to say that justice prevails over truth. In Huges us. Metropolitan Rly Co., (1972) 2 A.C.439, the Court observed that it is the first principle upon which all Courts of Equity proceed. In Moti/al Padmpal Sugar Mills us. State of Up, AIR 1979 SC 621, Union of India us. Godfrey Phillips India Ltd. AIR 1986 SC 806 and in several other cases, the apex Court held that when a promise or representation is made, it is binding on the person making it and he would not be entitled to go back upon it. It would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties.

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In England, it was an accepted and settled that the doctrine of Promissory Estoppel is a shield and not a sword. In Moti/al Padmpal Sugar Mills us. State of Up, AIR 1979 SC 621, the Court observed that estoppel traditionally invoked by way of defence and as such it has come to be identified as the 'Defence'. In Combe us. Combe, (1951) 1 All E.R. 314, it was observed that the Principle stated in Central London Property Trust Ltd. us. High Trees House Ltd, (1947) 1 KB 130, is undoubtedly very important. nevertheless, that principle should not be stretched too far lest it should be endangered. It does not create new causes of action where none existed before. The Doctrine of Equitable Estoppel or Promissory Estoppel applies to private individuals and does not apply to the Crown. In R. Amphitirite us. R. 91 LJKB 75 the Government gave an undertaking to the Ship-owner that, on certain conditions being fulfilled, the ship will not be detained. However, the ship was detained and as such, the Ship-owner filed a suit to recover damages from the Government. But the Court dismissed the suit holding that the promise did not bind the Government. But the modern view is that the doctrine of Promissory Estoppel need not be inhibited by the same limitation as Estoppel in the strict sense of the term. In Crabb us. Arun Distt. Council, (1975) 3 All. E.R. 865, it was observed that there are estoppels and estoppels. Some do give rise to cause of action, some do not. The species of estoppel called as 'Promissory Estoppel' does give rise to a cause of action. In India the doctrine of Promissory Estoppel not only applies but it is also recognized that it gives cause of action. In Moti/al Padmpal Sugar Mills us. State of Up, AIR 1979 SC 621 the Court held that rule of estoppel applies to the Crown as well. In the classic case of Union of India us. Anglo Afghan Agencies, AIR 1968 SC 718, Export Promotion Scheme was published by the Textile Commissioner. It was provided that the exporters will be entitled to import raw materials upto 100 per cent of the export value. The Petitioner exported goods worth Rs. 5 lakhs. The Textile Commissioner did not grant the import certificate for the full value. When it was challenged, the Government contended that there was no formal contract envisaged in Article 299 of the Constitution and that the scheme was merely administrative in character and did not create any enforceable right in favour of the Petitioner. The apex Court held that even though the scheme was merely executive in nature and even though the promise was not recorded in formal contract as required under Article 299 of the Constitution, still it was open to a party to claim that the Government was bound to carry out the promise made by it. However, it may clearly be noted that in Jit Ram us. State of Haryana, AIR 1980 SC 1285, the apex Court had refused to apply the principle. But by and large, it is believed that this ruling did not lay down the correct law. The contract, if is void, for non-compliance of Article 299, cannot be enforced on the broad and spacious plea of the doctrine of estoppel - Mulam Chand us. State of M.P AIR 1968 SC 1218, State of UP us. Murari/al, (1972) 1 SCR 1, Hansraj us. Union of India, AIR 1974 SC 1724. (xii) Estoppel against the Statute: There is not estoppel against the Statute. No estoppel can legalize the action which is ultra vires. In Howell vs. Falmouth Boat Construction Co., (1951) 2 All E.R. 278, the Company was carrying on its business of ship repairing. It was clearly provided that it was necessary to take a license for doing the ship repairing work. However, the Designated Officer assured the company that

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no license was necessary and hence no license was taken under the statute. The Plaintiff Company sued the Authority for payment of work done by it. The Court of Appeal allowed the Plaintiff's claim holding that under the 'doctrine of estoppel', the Authority was shut out from raising the defence that license was necessary and that not having been obtained, the Plaintiff had carried out the work illegally and for that reason he was not entitled to the payment. The decision of the Court of Appeal was reversed by the House of Lords holding that there cannot be bar of estoppel against the Statute. In Amar Singhji vs. State of Rajasthan, AIR 1955 SC 504, the Collector had initiated the acquisition proceedings for acquiring the Jagir of the Petitioner. However, the Government advised the Collector not to proceed with the acquisition proceedings during her life time. However, the Collector, later on resumed the acquisition proceedings. That was then challenged. The apex Court held that no powers were vested in the Government to grant the exemption from the acquisition and hence the exemption granted by the Government was of no consequence and hence no fault can be found with the resumption of acquisition proceedings. The apex held that there can be no estoppel against the Statute. However, in Assistant Commissioner of Commercial Taxes vs. Dharmendra Trading Co., (1988) 3 SCC 570, the State Government had granted the tax exemption but the same was curtailed by the Sales Tax Department. This action of the Department was challenged. The Assistant Sales Tax Commissioner then contended that the exemption granted by the Government was ultra-vires the Act. Negating the contention, the apex Court held that the functionaries of the Government cannot say that a concession granted by the State was beyond the powers of the State. In State of MP vs. Orient Paper Mills, (1990) 1 SCC 728 so also in Delhi Cloth & General Mills vs. Union of India, AIR 1988 SC 2414 and several other cases, the apex Court did apply the doctrine of estoppel.

DOD

CHAPTER-12 EXECUTIVES - II GOVERNMENT PRIVILEGES AND IMMUNITIES SYNOPSIS

1.

Crown Privileges 2. Doctrine of Estoppel against the Statute 3. The Code of Civil Procedure 4. The Evidence Act 5. Open Government 6. Right of Information 7. The Right to Information Act, 2005 (A) The Salient Features of the Act (B) Statement of Objects and Reasons (C) Preamble of the Act (D) Right to Information (E) Exemption from Disclosure of Information (F) Third Party Information (G) Mode of seeking Information (H) Authorities under the Act (I) Appeal under the Act (J) Penalties under the Act

1. CROWN PRIVILEGES The legal maxim says 'Public Welfare' is the Highest Law. Therefore, it also means that (in the interest of 'Public Welfare') the necessary evidence can be suppressed. On the basis of this maxim, in England, the Crown had the special privilege (1) of withholding the disclosure of documents or (2) to refuse to answer any question, if in' its opinion, it was injurious to Public Welfare. (227)

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Duncan us. Cammell Laired & Co., (1942) AC. 624, is the leading case on the point of 'Crown Privilege'. During _the Second World War, the submarine, Thetis sank and 99 lives were lost. The widow of one of the persons who had lost their lives filed a suit for recovering damages for negligence of the Government Contractor. In order to establish liability, she sought discovery of certain documents. But the Admiralty refused to give documents claiming the "Crown Privilege". The Court of Appeal upheld the "Crown Privilege" claimed by the Admiralty. In Ellis us. Home Office, (1953) 2 All. E. R. 149, an under-trial prisoner was beaten up by another prisoner who was under observation for suspected mental illness. Ellis alleged the negligence of the Prison Authority. But the Crown claimed its "privilege" (in respect of medical evidence) and consequently, Ellis lost his action. The old era then .finally came to an end and the House of Lords in Conway us. Rimmer, (1968) 1 All E.R 874, held that the Judge should first inspect the document without showing it to the other side and decide whether the document should be produced or not and that the privilege should not be claimed or allowed for routine or trivial documents. In Air Canada us. Secretary of State, (1983) 1 All E.R. 910, the Court held that the production of documents should not be allowed unless the Court finds definite grounds for expecting to find material of real importance to the party seeking production and that the production of documents should not be allowed for the 'fishing inquiry' of the party. In India, the law is no different than the Law in England and as such, it is always that the sole and the only test that determines the decision of the head of the department is: 'injury to public interest' and nothing else.

2. DOCTRINE OF ESTOPPEL AGAINST THE STATUTE The Doctrine of Estoppel is discussed in the earlier chapter of this Book. However, it may be reiterated that often the Doctrine of Estoppel is described as a 'Rule of Evidence', nay; it is the 'Rule of Law'. Nevertheless, the Doctrine of Estoppel is fully embodied in Section 115 of the Indian Evidence Act, 1872. The Doctrine of Promissory Estoppel is species of Estoppel and it lays down that a person, who by some statement or representation of facts causes another person to act to his detriment in reliance on the truth of it, is not allowed to deny it later even though it is wrong. This doctrine is evolved by equity to avoid injustice or to say that justice prevails over truth. In Huges us. Metropolitan Rly Co., (1972) 2 AC.439, the Court observed that it is the first principle upon which all Courts of Equity proceed. In Motilal Padmpal Sugar Mills us. State of Up, AIR 1979 SC 621, Union of India us. Godfrey Phillips India Ltd. AIR 1986 SC 806 and in several other cases, the apex Court held that when a promise or representation is made, it is binding on the person making it and he would not be entitled to go back upon it. It would be inequitable to allow him to do so having regard to the dealings which have taken place between the parties. In England, it was an accepted and settled that the doctrine of Promissory Estoppel is a shield and not a sword. In Moti/al Padmpal Sugar Mills us. State of Up, AIR 1979 SC 621, the Court observed that estoppel traditionally invoked by way of defence and as such it has come to be identified as the 'Defence'. In Combe us. Combe, (1951) 1 All E.R. 314, it was observed that the Principle stated in Central London Property Trust Ltd. us. High Trees House Ltd, (1947) 1 KB 130 is undoubtedly very important, nevertheless, that principle should not be stretched too far lest it should be endangered. It does not create new causes of action where none existed before.

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The Doctrine of Equitable estoppel or Promissory Estoppel applies to private individuals and does not apply to the Crown. In R. Amphitirite us. R. 91 LJKB 75, the Government gave an undertaking to the Ship-owner that, on certain conditions being fulfilled, the ship will not be detained. However, the ship was detained and as such, the Ship-owner filed a suit to recover damages from the Government. But the Court dismissed the suit holding that the promise did not bind the Government. But the modern view is that the doctrine of Promissory Estoppel need not be inhibited by the same limitation as Estoppel in the strict sense of the term. In Crabb us. Arun Distt. Council, (1975) 3 All. E.R. 865, it was observed that there are estoppels and estoppels. Some do give rise to cause of action, some do not. The species of estoppel called as 'Promissory Estoppel' does give rise to a cause of action. In India the doctrine of Promissory Estoppel not only applies but it is also recognized that it gives cause of action. In Motilal Padmpal Sugar Mills us. State of Up, AIR 1979 SC 621, the Court held that rule of estoppel applies to the Crown as well. In the classic case of Union of India us. Anglo Afghan Agencies, AIR 1968 SC 718, Export Promotion Scheme was published by the Textile Commissioner. It was provided that the exporters will be entitled to import raw materials upto 100 per cent of the export value. The Petitioner exported goods worth Rs. 5 lakhs. The Textile Commissioner did not grant the import certificate for the full value. When it was challenged, the Government contended that there was no formal contract envisaged in Article 299 of the Constitution and that the Scheme was merely administrative in character and did not create any enforceable right in favour of the Petitioner. The apex Court held that even though the Scheme was merely executive, in nature and even though the promise was not recorded in formal contract as required under Article 299 of the Constitution, still it was open to a party to claim that the Government was bound to carry out the promise made by it. However, it may clearly be noted that in Jit Ram us. State of Haryana, AIR 1980 SC 1285, the apex Court had refused to apply the principle. But by and large, it is believed that this ruling did not lay down the correct law. The contract, if is void, for non-compliance of Article 299, cannot be enforced on the broad and spacious plea of the doctrine of estoppel- Mulam Chand us. State of M.P., AIR 1968 SC 1218, State of UP us. Murarilal, (1972) 1 SCR 1, Hansraj us. Union of India, AIR 1974 SC 1724. In Amar Singhji us. State of Rajasthan, AIR 1955 SC 504, the apex held that there can be no estoppel against the Statute. However, the apex Court, in Assistant Commissioner of Commercial Taxes us. Dharmendra Trading Co., (1988) 3 SCC 570, held that the functionaries of the Government cannot say that a concession granted by the State was beyond the powers of the State. In State of MP us. Orient Paper Mills, (1990) 1 SCC 728 and so also in Delhi Cloth & General Mills us. Union of India, AIR 1988 SC 2414 and in several other cases, the apex Court did apply the doctrine of estoppel. In Director of Rationing and Distribution us. Corporation of Calcutta, AIR 1960 SC 1355, the apex Court held that the State is not bound by the Statute unless expressly or impliedly the Statute is made applicable.

3. THE CODE OF CIVIL PROCEDURE Section 80 of the Civil Procedure Code of 1908 clearly demonstrates that the Government is given privilege inasmuch as no action against the Government can be initiated in the Civil Court unless it is given a clear NOTICE OF TWO months. In other words, no suit can be instituted either against the Government or the Public Officer in his official capacity, until the expiry of two months next after the notice in writing has been delivered in the manner provided

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in the section. The object of the provision appears to provide Government and its officers to settle the claim without litigation. In Sawai Singh vs. Union of India, AIR 1960 SC 1068, it was held that Section 80 of CPC is mandatory and admits no exception. In Rameshwar Prasad Singh vs. Mohd. Ayub, AIR 1950 Pat. 527, the Patna High Court held that the Section 80 of CPC does not apply in cases where the Government Officers act without jurisdiction and hence the requirement of giving Notice to Government under Section 80 of CPC is redundant. In B. Sivaram Krishnaiah vs. Executive Engineer, NCC, AIR 1978 AP 389, the Andhra Pradesh High Court held that the Government, expressly or impliedly, can waive the notice. It must however be noted that requirement of giving two months notice under Section 80 of CPC causes great inconvenience to citizens when they want to take immediate action. In State of Orissa vs. Madan Gopal, AIR 1952 SC 12, the Lessee moved the High Court under its Writ Jurisdiction. The High Court granted the limited relief protecting the possession of lessee for three months during which time the Lessee can give requisite notice and take recourse to appropriate alternative remedy. The apex Court however reversed the high court decision. It necessitated the Legislatures to amend the Code of Civil Procedure and incorporate into it SubClause (2). By Sub-Clause (2) of Section 80 of CPC the Courts are invested with powers to grant LEAVE to the Plaintiff to file the suit against the government of a Public Officer without serving a Two Months Notice in case the relief required to be given is urgent. No doubt the Court granting such leave to sue the government without Two Months Notice must judiciously satisfy itself that there is urgency in the case. Section 80 does not apply:,/ ,/ ,/

In cases of Claims before the Tribunal against the Government under the Motor Vehicles Act. In cases of filing suit against the Statutory Corporations. For invoking Writ Jurisdiction under the Constitution of India.

Section 82 of CPC also accords privilege to the Government inasmuch no decree against the Government can be immediately executed and atleast THREE MONTHS' time is allowed to satisfy the Decree of the Court if no time-limit is provided in the Order or Decree of the Court. Section 82 of CPC lays down that where a Decree is passed against the Government or against the Public Officer, a time shall be specified in the Decree within which it shall be satisfied and if the decree is not satisfied within the time so specified and within three months from the date of the decree, where no time is so specified, the court shall report the case to the Government for its Order. The Court is thus required to specify the time-limit within which the Decree is to be satisfied. If the Decree is not satisfied within the stipulated time, the Court shall report the case for the Orders of the Government.

4. THE EVIDENCE ACT Section 123 of the Evidence Act lays down that no one shall be permitted to give any evidence derived from unpublished official record relating to any affair of the State except with the permission of the Officer at the Head of the department concerned who shall give or withhold such permission as he thinks fit. In order to claim immunity under this provision, the records must relate to affairs of the State and the disclosure of such Documents must be against the Public Interest. In R, K. Jain vs. Union of India, (1993) 4 SCC 120, the apex held that the

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231

prejudice to Public Interest must be so strong as to outweigh the private or any other interest. In case of conflict between the Public Interest and the Private interest it is always the Private Interest which has to give way to the Public Interest and that always holds the field. In State of Punjab us. Sodhi Sukhdeue, AIR 1961 SC 493 (followed in ArnaT Chand us. Union of India, AIR 1964 SC 1658), the apex Court held that the Courts can hold preliminary inquiry and determine the validity of the objections to the production of documents. Such an inquiry by the Courts necessarily involves an inquiry into the question as to whether the evidence relates to an affair of the State under Section 123 of the Act or not. But surely the Court cannot sit in appeal over the judgement of the Officer who has held the view that the production of the document is injurious to Public Interest. Whether the production is injurious to Public Interest or not, cannot thus be decided by the Court under Section 123 of the Evidence Act.

Section 123 is based on the Crown's Privilege as discussed in the earlier Chapter of this book and hence for brevity's sake not repeated here. But the readers should go through the same to grasp the subject matter properly and in correct perception. Section 124 lays down that no Public Officer shall be compelled to disclose communication made to him in official confidence when he considers that the Public Interests would suffer by the disclosure. The Courts have powers to decide whether the communication must have been made to the Public Officer in Public Confidence. Section 162 lays down that a witness summoned to produce a document in his possession/power shall bring it to the Court, notwithstanding any objection which there may be to its production or its admissibility. In its sub-section Section 162 also lays down that the Court, if it considers it proper, they may inspect the document, unless it refers to matters of State. This Section relates to inquiry into the validity of the objection that the document is an unpublished official record relating to affairs of State and therefore permission to give evidence derived from it is declined. The Courts therefore have to consider two things: (1) whether the document relates to secret affairs of the State and (2) whether the disclosure of the document should be injurious to public interest. In State of UP us. Raj Narain, (1975) 4 SCC 428, the apex Court held that it is only when the Officer refuses to permit the disclosures of the document that any question arises whether the disclosure in Court should be allowed or not and then only Section 162 comes into operation. Section 162 also provides that it if is necessary to translate the document, the Court may, if it thinks fit, direct the Translator to keep the contents secret and if the Translator disobeys the direction of the Court, he shall be held to have committed an offence under Section 166 of the Indian Penal Code relating to Public Servant disobeying the Law with intent to cause injury to any person.

5. OPEN GOVERNMENT The principle of open government was considered by the Hon'ble Supreme Court of India in the case of S.P. Gupta us. Union of India, AIR 1982 SC 149. In this case, the correspondence between the Law Minister and the Chief justice of India and the Chief Justice of the High Court concerned was ordered to be disclosed to decide the question of the validity of the noncontinuance of a High Court judge. In this case, the apex Court did not agree with its earlier ruling in State of Punjab us. Sodhi Sukhdeue, AIR 1961 SC 493, and held that even if a public

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document is confidential, it must be produced notwithstanding its confidentiality. Where the society has chosen to accept democracy as its creedal faith, it is elementary that the citizens ought to know what their Government is doing. The citizens' right to know the facts, the true facts about the administration of the country is one of the pillars of a democratic sate. And that is why openness in the Government is increasingly growing in different parts of the world.

6. RIGHT OF INFORMATION The Constitution of India under Article 19 (1) (a) gives freedom of speech and right to life and personal liberty under Article 21. These are the Fundamental Rights and from that arises the 'Right of Information'. But the 'Right of Information' is great hindrance to the maintenance of the "secrecy" of the Government affairs. It is an open secret that maintaining "secrecy" of the Government affairs is in the larger public interest and that demands 'non-disclosure' of the Government affairs. It is for this reason that Article 22 (6) of the Constitution of India permits the Government (the detaining authority) not to disclose the information (to Detenue if the Detaining Authority considers such disclosure against the public interest). So also the 'nondisclosure' of 'Presidential Satisfaction' is allowed under Articles 36, 123 and 352 of the Constitution of India and, under Article 311 Constitution of India, 'not-holding' of Domestic Enquiry' in respect of Government Servant is allowed if it is in the security of the State. In State of UP us. Raj Narain, AIR 1975 SC 865 the apex Court ruled that in cases of conflict between the 'Public Interest' and the "Private Interest' the Court would decide whether the disclosure would harm the pubic interest. But it was always difficult to decide between the two and therefore a need was always felt to find a solution to it. The legislatures then finally found a solution in passing The Freedom of Information Act, 2002'. However, by the time, the Act of 2002 was enacted it fell outdated. The Legislatures, in the circumstances, replaced it with a new legislation, The Right to Information Act, 2005. It received the assent the President of India on 15th June, 2005 and it was published in the Gazette of India Ext. Part II, S. 1, dated 21st June 2005.

7. THE RIGHT TO INFORMATION ACT, 2005 (A) The Salient Features of the Act. (B) Statement of Objects and Reasons. (C) Preamble of the Act. (D) Right to Information. (E) Exemption from Disclosure of Information. (F) Third Party Information. (G) Mode of seeking Information. (H) Authorities under the Act. (I) Appeal under the Act. (J) Penalties under the Act.

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(A) The Salient Features of the Act (a) The Act is made applicable to the whole of India except the State of Jammu and Kashmir. The President gave his assent on 15th June, 2005 and the same was published in the Gazette of India Ext. PT II S. 1, dated 21st June, 2005. (b) The provisions listed in Section 1 (3) of the Act were made applicable only after 120 days so as to give breathing time to the Government Functionaries to get themselves adapted to the new obligations of furnishing the information asked for by citizens under the Act. (c) The Act is not clear as to (i) whether the information furnished is adequate or not, is justiciable or not and (ii) whether the other means of getting information in other Acts can justify rejection or not. (d) The Act, however, provides an independent apparatus to citizens for obtaining information about the functioning of the Government. (e) The Act seeks to replace the Freedom of Information Act., 2002. (f) The Act seeks to streamline the administration and the functionaries of the Government. (g) The Act enlists the matter which are exempted for being furnished as and by way of information to the members of public. (h) The Act provides the hierarchy of instrumentalities with inbuilt provisions for appeal. (i) The Act provides for the 'remedy to third party'. By 'third party; means the person other than the citizen making a request for information and includes public authority. (j) The Act distinctly clarifies the limitation period for obtaining of information. (k) The Act bars the Jurisdiction of Civil Courts. (I) The Act empowers the Central Government to undertake educational programmes.

(B) Statement of Objects and Reasons. In the Statement of Objects and Reasons, it is recorded:"In order to ensure greater and more effective access to information, the Government resolved that the Freedom of Information Act, 2002 enacted by the Parliament needs to be made more progressive, participatory and meaningful. The National Advisory Council deliberated on the issue and suggested certain important changes to be incorporated in the existing Act to ensure smoother and greater access to information. The Government examined the suggestions made by the National Advisory Council and others and decided to make a number of changes in the law. The important changes proposed to be incorporated, inter alia, include establishment of Appellate machinery with investigating powers to review decisions of the Public Information Officer; penal provisions for failure to provide information as per law; provisions to ensure maximum disclosure and minimum exemption, consistent with constitutional provisions, and effective mechanism for access to information and disclosure by authorities, etc. In view of the significant changes proposed in the existing enactment of 2002, the Government decided to repeal the enactment of 2002. The proposed legislation will provide an effective framework for effectuating the right of information recognized under Article 19 of the Constitution of India."

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(C) Preamble of the Act

It is said in the preamble thus:

"WHERAS the Constitution of India has established democratic Republic; AND WHEREAS democracy requires an informed citizenry and transparency of information which are vital to its functioning and also to contain corruption and to hold Government and their instrumentalities accountable to the governed; AND WHEREAS revelation of information in actual practice is likely to conflict with other public interests including efficient operation of the Governments, optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information; AND WHEREAS it is necessary to harmonies these conflicting interests while preserving the paramountcy of the democratic ideal; NOW, THEREFORE, it is expedient to provide for furnishing certain information to citizens who desire to have it;" The preamble of the Act always holds the key in unfolding the intent, content and purport of the legislation. In the present Act, it is made clear in the preamble that the transparency and accountability in the working of the public authority is hallmark of the whole enactment. Further, the Preamble uses of expression "informed citizenry". It means, it refers to those citizens who seek "vital information". The vital information, in its turn must be "to functioning" of the administration . Further, the seeking of vital information must be "to contain corruption and to hold Government and their instrumentalities accountable to the governed". The preamble also clearly and expressly takes cognizance of the "optimum use of limited fiscal resources and the preservation of confidentiality of sensitive information". Therefore, the areas of "conflict" within the administration must be harmonized to preserve "the paramountcy of the democratic ideal". (D) Right to Information.

Section 3 of the Act invests 'right to information' in all the citizens. The Act for the sake of clarity, defines the term 'information; in Section 2 (f). But the term 'information' uses the word 'record' and therefore, the term 'record' is defined in Section 2 (i). However, leaving it thereat. the Act goes further to define the expression 'right to information' in Section 2 0>. Section 3, therefore, necessarily, will have to be read together with Section 2 (f), 2 (i) and 2 (j) of the Act. In other words, Section 3, Section 2 (f), 2 (i) and 2 U) will have to be read together as complementary to each other.

The rule of interpretation says that the use of the expression 'means' will always be taken to mean that the definition is exhaustive and not illustrative. Section 3 lays down that right of information is available to citizens. Necessarily, it means that no right of information is vested in one who is not the citizen of India. This right of information is in consonance with the fundamental rights enshrined under Articles 14 and 19 of the Constitution of India and guaranteed to the citizens of India. Indeed, the right of information is not unfettered inasmuch as in Section 8 lays down the exemption from disclosure of information. Needless, therefore, to record that Section 8 of the Act places 'reasonable restriction' on citizen's right to information. Indeed, how reasonable are the restrictions imposed under Article will have to tested on the touchstone of the judicial arena. Section 2 (f), (i), (j) and Section 3 read as under:

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SECTION 2 (f) - Information means any material in any form, including records, documents, memos, e-mails, opinions, advices, press releases, circulars, orders, logbooks, contracts, reports, papers, samples, models, data material held in any electronic form and information relating to any private body which can be accepted by a public authority under law for the time in force. SECTION 2 (i) - Record includes (i) (ii)

(iii)

(iv)

any Document, manuscript and file, any microfilm, microfiche and facsimile copy of a document; any reproduction of image or images embodied in such microfilm or not and any other material produced by a computer or any other device.

whether enlarged

Having cleared the meanings of the expressions 'expression' and 'record', it may now be of Act as noted the meaning of the expression 'right to information' It is defined in Section 2 under:-

m

SECTION 2 0> - Right to information - means the right to information accessible under this Act which is held by or under the control of any public authority and includes the right to (i) (ii)

(iii)

(iv)

inspection of work, documents, records, taking notes, extracts, or certified copies of documents or records; taking certified samples of materials, obtaining information in the form of diskettes, floppies, tapes, video cassettes or in any other electronic mode or through printouts where such information is stored in a computer or in other device.

SECTION 3 - Right to Information Subject to the provisions of this Act, all citizens shall have the right to information.

(E) Exemption from Disclosure of Information Section 8 of the Act lays down as to what information need not be provided to citizens asking for the same. Section 8 is non-abstinent clause inasmuch as it opens with the expression 'notwithstanding anything contained this Act'. It means that the provisions of Section 8 prevail over all other provisions contained in other sections of the Act and the other provisions of the Act do not hinder in the operation of the provisions of Section 8 of the Act. Nevertheless, Section 9 lays down grounds for rejection to access in certain cases. Thus, it must be clear that despite the use of expression 'notwithstanding anything contained this Act.' Section 8 is controlled by Section 9 which in other means that Section 9 adds one more ground to reject the information asked for by the citizens. In any case, it is clear that certain information can be withheld but the legislatures go a step further and lays down in Section 10 that if the information asked for is severable, one falling in the prohibited category and one not-falling in the prohibited category then the information falling in the prohibited category should be withheld and the information falling in the category of non-prohibited category should be furnished to the citizen asking for it.

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Sections 8, 9 and 10 of the Act are as under:SECTION 8 - Exemption from disclosure of Information (1)

Notwithstanding anything contained this Act, there shall be no obligation to give any citizen:(a) 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; (b) Information which has been expressly forbidden to be a published by any court of law or tribunal or the disclosure of which may constitute Contempt of Court; (c) Information, the disclosure of which would cause a breach of privilege of Parliament or the State Legislature; (d) 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; (e) 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; (f) Information received in confidence from foreign government or International Organization; (g) 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; (h) Information which would impede the processes of investigation or apprehension or prosecution of offenders; (i) 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: (1) information which relates to personal information the disclosure of which has no 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 tl· 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, nor any of the exemptions permissible in accordance with sub-section (1), a public authority may allow access to

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information, if public interest in disclosure outweighs the harms to the protected interests. (3) Subject to the provisions of clause (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 rsquest is made under Section 6 shall be provided to any person making a request under that section; PROVIDED THAT where any question arises 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.

SECTION 9 - Grounds for rejection to access in certain cases Without prejudice to what is stated in Section 8, the a Central Public Information Officer or State Public Information Officer, as the case may be, reject a request for information where such a request for providing access would involve an infringement of copyright subsisting in a person other than the State.

SECTION 10 - Severabiliw (1) Where a request for access to information is rejected on the ground it is in relation to

information which is exempt from disclosure, then, notwithstanding anything contained in this Act, access may be provided to that person of the record which does not contain any information which is exempt from disclosure under this Act and which can reasonably be severed from any part that contains exempt information. (2) Where access is granted to a part of the record under sub-section (1), the Central Public Information Officer or State Public Information Officer, as the case may be shall give a notice to the applicant, informing, (a) that only part of the record requested, after severance of the record containing information which is exempt from disclosure, is being provided; (b) the reasons for the decision, including any findings on any material question of fact, referring to the material on which those findings were based; (c) the name and designation of the person giving the decision; (d) the details of the fees calculated by him or her and the amount of the fee which the applicant is required to deposit; and (e) his or her rights with respect to review of the decision regarding non-disclosure of part of the information, the amount of fee charged or form of access provided, including the particulars of the senior officer specified under sub-section (1) of section 19 or the Central Information Commission or the State Information Commission, as the case may be, time limit, process and any other form of access. (F) Third Party Information.

Section 2 (n) of the Act defines the term 'Third Party'. However, the expression 'third party information is not defined under the Act. However, the reading of Section 11 of the Act demonstrates that when the information asked for by citizens is either to be or is supplied by someone else, which possibly is confidential from the point of view of that someone-else, the

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information of this nature is referred to as the 'third party information'. This can be fathomed from the provisions of Section 2 (n) and Section 3. (1) Section 2 (n) refers to a person other than citizen and (2) Section 3 refers to 'right of information' of citizens, necessarily it excludes third party as defined in Section 2 (n). SECTION 2 (n) - Third Party - means a person other than the citizen making a request for information and includes a public authority. SECTION 11 - Third Party Information (1) Where a Central Public Information Officer, as the case may be, intends to disclose any information or record, or part thereof on a request made under this Act, which relates to or has been supplied by a third party and has been treated as confidential by that third party, the Central Public Information Officer, as the case may be, intends to disclose the information or record or part thereof, and invite the third party to make a submission in writing or orally, regarding whether the information should be disclosed, and such submission of the third party shall be kept in view while taking a decision about disclosure of information; PROVIDED that except in the case of trade or commercial secrets protected by law, disclosure may be allowed if the public interest in disclosure outweighs in importance any possible harm or injury to the interests such third party. (2) Where a notice is served by the Central Public Information Officer or State Public Information Officer, as the case may be, under sub-section (1) to a third party in respect of any information or record part thereof, the third party shall, within ten days from the date of receipt of such notice, be given the opportunity to make representation against the proposed disclosure. (3) Notwithstanding anything contained in Section 7 of the Central Public Information Officer or State Public Information Officer, as the case may be, shall, within forty days after receipt of the request under Section 6, if the third party has been given an opportunity to make representation under sub-section (2), make a decision as to whether or not to disclose the information or record or part thereof and give in writing the notice of his decision to the third party. (4) A notice given under sub-section (3) shall include a statement that the third party to whom the notice is given is entitled to prefer an appeal under Section 19 against the decision.

(G) Mode of seeking Information.

For seeking any information under the Act, the citizen is called upon to make the request under Section 6. When such a request is made under Section 6 of the Act, Section 7 lays down the procedure for its disposal. What is worth noting is that (1) where the information asked for concerns the life or liberty, then the information has to be provided within 48 hours (2) where the person seeking the information is sensorialy disabled, then it is made mandatory to give all help and assistance to such person and (3) if the person seeking the information falls below the poverty line, then he is to be provided the information free of charge. Sections 6 and 7 read as under:

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SECTION 6 - Request for Obtaining Information:(1) A person, who desires to obtain any information under this Act, shall make a request

in writing or through electronic means in English or Hindi in the Official language of the area in which the application is being made, accompanying such fee as may be prescribed, to the Central Public Information Officer or State Public Information Officer, as the case may be, of the concerned public authority; (b) the Central Assistant Public Information Officer or State Assistant Public Information Officer, as the case may be, specifying the particulars of the information sought by him or her;

(a)

PROVIDED that where such request cannot be made in writing, the Central Public Information Officer or State Public Information Officer, as the case may be, shall render all reasonable assistance to the person making the request orally to reduce the same in writing. (2) An Applicant making request for information shall not be required to give any reason

for requesting the information or any other personal details except those that may be necessary for contacting him. (3) Where an application is made to a public authority requesting for an information, (i) which is held by another public authority; or (ii) the subject matter of which is more closely connected with the functions of another public authority, the public authority, to which such application is made, shall transfer the application or such part of it as may be appropriate to that other public authority and inform the applicant immediately about such a transfer. PROVIDED that the transfer of an application pursuant to this sub-section shall be made as soon as practicable but in no case later than five days from the date of receipt of the application.

SECTION 7 - Disposal of Request (1) Subject to the proviso to sub-section (2) of Section 5 or the proviso to sub-section (3) of Section 6, the Central Public Information Officer or State Public Information, as the case may be, on receipt of a request under Section 6 shall, as expeditiously as possible, and in any case within thirty days of the receipt of the request, either provide the information on payment of such fee as may be prescribed or reject the request for any of the reasons specified in Sections 8 and 9. PROVIDED that where the information sought for concerns the life or liberty of a person, the same shall be provided within forty-eight hours of the receipt of the request. (2) If the Central Public Information Officer or State Public Information, as the case may be, fails to give decision on the request for information within the period specified under sub-section (1), the Central Public Information Officer or State Public Information, as the case may be, shall be deemed to have refused the request. (3) Where a decision is taken to provide the information on payment of any further fee representing the cost of providing the information, the Central Public Information

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(4)

(5)

(6)

(7)

(8)

(9)

Officer or State Public Information, as the case may be, shall send an intimation to the person making the request, giving, (a) the details of further fees representing the cost of providing the information as determined by him, together with the calculations made to arrive at the amount in accordance with fee prescribed under sub-section (1), requesting him to deposit that fees, and the period intervening between the dispatch of the said intimation and payment of fees shall be excluded for the purpose of calculating the period of thirty days referred to in that sub-section; (b) information concerning his or her right with respect to review the decision as to the amount of fees charged or the form of access provided, including the particulars of the appellate authority, time limit, process and any other forms. Where access to the record or a part thereof is required to be provided under this Act and the person to whom access is to be provided is sensorialy disabled, the Central Public Information Officer or State Public Information, as the case may be, shall provide assistance to enable access to the information, including providing such assistance as may be appropriate for the inspection. where access to information is to be provided in the printed or any electronic format. the applicant shall, subject the provisions in sub-section (6), pay fees as may be prescribed; PROIVIDED that the fee prescribed under sub-section (1) of Section 6 and subsections (1) and (5) of Section 7 shall be reasonable and no such fee shall be charged from the persons who are of below poverty line as may be determined by the appropriate Government. Notwithstanding anything contained in sub-section (5) th person making request for the information free of charge where a public authority fails to comply with the time limits specified in sub-section (1) Before taking any decision under sub-section (1), the Central Public Information Officer or State Public Information, as the case may be, shall take into consideration the representation made by a third party under Section 11. where a request has been rejected under sub-section (1), the Central Public Information Officer or State Public Information, as the case may be, shall communicate to the person making the request, (i) The reasons for such rejection (ii) The period within which an appeal against such rejection may be preferred and (iii) The particulars of the appellate authority. An information shall ordinarily be provided in the form in which it is sought unless it would disproportionately divert the resources of the public authority or would be detrimental to the safety or preservation of the record in question.

(H) Authorities under the Act

The following authorities under the Act established:PUBLIC AUTHORITY - the entire burden of maintaining and furnishing the information is imposed upon it. The Public Authority has to designate or appoint the Public Information Officer to discharge the duties and obligations arising under the Act.

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PUBLIC INFORMATION OFFICER - These Officers can be appointed by the Central Government or the State Government - called as the Central Public Information Officer or the State Public Information Officer. PUBLIC INFORMATION COMMISSION - These Commissions can be appointed be the Central Government of the State Government - called as the Central Public Information Commission or the State Public Information Commission. The expression 'Public Authority' is defined in Section 2 (h). Since the expression 'appropriate government' is used in Section 2 (h), it (appropriate government) is defined in Section 2 (a). The obligations of the Public Authorities are then laid down in Section 4 of the Act. The Public Authorities, under Section 5 of the Act, have to designate (appoint) the Public Information Officers (Central Public Information Officers or State Public Information Officers, as the case may be) to provide information to persons requesting for the same. The Public Information Officers, Central or the State as the case may be, are vested powers under Section 5 (2) to make appointments of the Assistant Public Information Officer, Central or State, as the case may be. Section 2 (c) and 2 (m) respectively defines the terms the Central Public Information Officer and the State Public Information Officer. The Act under Section 12 mandates upon the Central Government to constitute a body to be known as the Central Information Commission. The expression the Central Information Commission is defined in Section 2 (b). The terms of the office and the conditions of services are provided under Section 13 whereas the provisions of the removal are given in Section 14. Section 15 mandates upon the State Government similarly to constitute a body to be known as the State Information Commission. The expression the State Information Commission is defined in Section 2 (k). Sections 16 and 17 similarly lay down, respectively, the provisions for the State Government (1) in respect of terms of the Office and conditions of services and (2) removal of the State Information Commissioner. The Powers of the Central Information Commission and State Information Commission are enumerated in Section 18 of the Act. Section 19 deals with the provisions of TWO appeals and the period of limitation for preferring the appeals. These provisions are as under:-

SECTION 2 (h) - Public Authority - means any Authority or Body or Institution OF Self-Government established or constituted (a) by or under the Constitution; (b) any other law made by Parliament; (c) any other law made by State Legislature; (d) by Notification issued or Order made by the appropriate government and includes (i) any Body - owned, controlled or substantially financed; (ii) non-Government organization substantially financed directly or indirectly by funds provided by the State Government.

SECTION 2 (a) - Appropriate Government means in relation to a Public Authority which is established or constituted or owned or controlled or substantially financed by funds provided, directly or indirectly,

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(i) (ii)

by the Central Government or the Union Territory Administration, the Central Government. by the State Government, the State Government. It reads as under:-

SECTION 4 - Obligations of Public Authorities (1) Every Public Authority shall -

(a)

maintain all its records duly catalogued and indexed in a manner and the form which facilitates the right to information under this Act and ensure that all rcords are appropriate to be computerized, are within a reasonable time and subject to availability of resoures, computersied and connected through a network all over the country on different systems so that access to such record is facilitated; (b) publishes within one hundred and twenty days from the enactment of this Act, (i) the particulars of its obligations, functions and duties; (ii) the powers and duties of its officers and employees; (iii) the procedure followed in the decision making process, including channels of supervision and accountability; (iv) the norms set by it for the discharge of its functions; (v) the rules, regulations, instructions, manuals and records, held by it or under its control or used by its employees for discharging its functions; (vi) a statement of the categories of documents that are held by it or under its control; (vii) the particulars of any arrangement that exists for consultation with, or representation by, the members of the public in relation to the formulation of its policy or implementation thereof; (viii) a statement of the boards, councils, committees and other bodies consisting of two or more persons constituted as its part or for the purpose of its advise, and as to whether meetings of those boards, councils, committees and other bodies are open to public or the minutes of such meetings are accessible for public; (ix) a directory of its officers and employees; (x) the monthly remuneration received by each of its officers and employees, including the system of compensation as provided in its regulations; (xi) the budget allocated to each of its agency, indicating the particulars of plans, proposed expenditure and reports on disbursements made; (xii) the manner of execution of subsidy programmes, including the amounts allocated and the details of beneficiaries f such programmers; (xiii) particulars of recipients of concessions, permits or authorization granted by it; (xiv) details in respect of the information available to or held by it, reduced in an electronic form;

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(xv) the particulars of facilities available to citizens for obtaining information, including the working hours of a library or reading room, if maintained for public use; (xvi) the names, designations and other particulars of the Public Information Officers; (xvii) such other information as may be prescribed and thereafter update these publications every year; (c) publish all relevant facts while formulating important policies or announcing the decisions which affect public; (d) provide reasons for its administrative or quasi judicial decisions to affected persons. (2) it shall be a constant endeavour of every public authority to take steps in accordance with the requirements of clause (b) of sub-section (1) to provide as much information suo motu to the public at regular intervals through various means of communications, including internet, so that the public have the minimum resort to the use of this Act to obtain information. (3) for the purpose of sub-section (1), every information shall be disseminated widely and in such form and manner which is easily accessible to the public. (4) all materials shall be disseminated taking into consideration the cost effectiveness, local language and the most effective method of communication in that local area and the information should be easily accessible, to the extent possible in electronic format with the Central Public Information Officer or State Public Iniormation Officer, as the case may be, available free or at such cost or the medium or the print cost price as may be described. Explanation - For the Purpose of sub-section (3) and (4), "disseminated" means making known or communicated the information to the public through notices boards, newspapers. public announcements, media broadcasts, the internet or any other means, including inspection of offices of any public authority. SECTION 2 (c) - Central Public Information Officer means the Central Public Information Officer designated under sub-section (1) and includes a Central Assistant Public Information Officer designated as such under sub-section (2) of Section 5. SECTION 2 (m) - State Public Information Officer means the State Public Information Officer designated under sub-section (1) and includes a State Assistant Public Information Officer designated as such under sub-section (2) of Section 5. SECTION 5 - Designation of Public Information Officers (1) Every Public Authority shall, within one hundred days of enactment of this Act,

designate as many officers as may be, in all administrative units or offices under it as may be necessary to provide information to persons requesting for the information under this Act. (2) Without Prejudice to the provisions of sub-section (1), every public authority shall designate an officer, within one hundred days of the enactment of this Act, at each sub-divisional level or other sub-district level as a Central Assistant Public Information

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Officer or a State Assistant Public Information Officer, as the case may be, to receive the applications for information or appeals under this Act for forwarding the same forthwith to the Central Public Information Officer or the State Public Information Officer or senior officer specified under sub-section (1) of Section 19 or the Central information Commission or the State Information Commission, as the case may be. PROVIDED that where an application for information or appeal is given to a Central Assistant Public Information Officer or a State Assistant Public Officer, as the case may be, a period of five days shall be added in computing the period for response specified under sub-section (1) of Section 7. (3) . Every Central Public Officer or State Public Information Officer, as the case may be, shall deal with requests from persons seeking information and render reasonable assistance to the persons seeking such information. (4) The Central Public Information Officer or the State Public Information Officer, as the case may be may seek the assistance of any other officer as he or she considers it necessary for the proper discharge of his or her duties. (5) Any Officer, whose assistance has been sought under sub-section (4), shall render all assistance to the Central Public Information Officer or the State Public Information Officer, as the case may be, seeking his or her assistance and for the purpose of any contravention of the provisions of this Act, such other Officer shall be treated as a Central Public Information Officer or State Public Information Officer. as the case may be. Section 2 (b) - Central Information Commission means the Central Information Commission constituted under sub-section (1) of Section 12. Section 2 (d) - Chief Information Commissioner and Information Commissioner mean the Chief Information Commissioner and Information Commissioner appointed under subsection (3) of Section 12. Section 12 - Constitution of Central Information Commission (1) The Central Government shall, by notification in the Official Ga7.ctte, constitute a body to be known as the Central Information Commission to exercise the powers conferred on, and to perform the functions assigned to it under the Act. (2) The Central Information Commission shall consist of (a) the Chief Information Commissioner; and (b) such number of Central Information Commissioners, not exceeding ten, as may be deemed necessary. (3) The Chief Information Commissioner and Information Commissioners shall be appointed by the President on the recommendation of a Committee consisting of (i) the Prime Minister, who shall be chair person of the committee. (ii) the Leader of Opposition in the Lok Sabha and (iii) a Union Cabinet Minster to be nominated by the Prime Minister. (4) The general superintendence, direction and management of the affairs of the Central Information Commissioners shall vest in the Chief Information Commissioner who

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shall be assisted by the Information Commissioner and may exercise all such powers and do all such acts and things which may be exercised or done by the Central Information Commissioner autonomously without being subjected to directions by any other authority under this Act. (5) The Chief Information Commissioner and Information Commissioners shall be persons of eminence in public life with wide knowledge and experience in law, science and technology, social service, management, journalism, mass media or administration and governance. (6) The Chief Information Commissioner and Information Commissioners shall not be a Member of Parliament or Member of the Legislature of any State or Union territory, as the case may be, or hold any other office of profit or connected with any political party or carrying on business or pursuing any profession. (7) The headquarters of the Central Information Commission shall be at Delhi and the Central Information Commission may with the previous approval of the Central Government, establish officers at other places in India.

Section 13 - Terms of office and conditions of service (1) The Chief Information Commissioner shall hold office for a term of five years from the

(2)

(3)

(4)

(5)

date on which he enters upon his office and shall not be eligible for reappointment; PROVIDED that no Information Commissioner shall hold office as such after he has attained the age of sixty five years. Every Information Commissioner shall hold office for a term of five years from the date on which he enters upon his office or till he attains the age of sixty five years, whichever is earlier, and shall not be eligible for reappointment as such Information Commissioner. PROVIDED that every Information Commissioner shall, on vacating his office under this sub-section eligible for appointment as the Chief Information Commissioner in the manner specified in sub-section (3) of Section 12; PROIVDED further that where the Information Commissioner is appointed as the Chief Information Commissioner, his term of office shall not be more than five years in aggregate as the Information Commissioner and the Chief Information Commissioner. The Chief Information Commissioner or an Information Commissioner shall before he enters upon his office make and subscribe before the President or some person appointed by him in that behalf an oath or affirming according to the form set out for the purpose in the First Schedule. The Chief Information Commissioner or an Information Commissioner. may at any time, by writing under his hand addressed to the President, resign from his office. PROVIDED that the Chief Information Commissioner or an Information Commissioner may be removed in the manner specified under Section 14. The salaries and allowances payable to and other terms and conditions of service of(a) the Chief Information Commissioner shall be the same as that of the Chief Election Commissioner;

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(b)

an Information Commissioner shall be the same as that of an Election Commissioner. PROVIDED that if the Chief Information Commissioner or an Information Commissioner at the time of his appointment is, in receipt of a pension (other than a disability or wound pension) in respect of any previous service under the Government of India or under the Government of a State, his salary in respect of the service as the Chief Information Commissioner or Information Commissioner shall be reduced by the amount of that pension including any portion of pension which was commuted and pension equivalent of other forms of retirement benefits excluding pension equivalent of retirement gratuity; PROVIDED further that if the Chief Information Commissioner if, at any time of his appointment is in receipt of retirement benefits in respect of any previous service rendered in a Corporation established by or under any Central Act or State Act or a Government company owned or controlled by the Central Government or the State Government, his salary in respect of the service as the Chief Information Commissioner or the Information Commissioner shall be reduced by the amount of pension equivalent to the retirement benefits; PROVIDED also that the salaries, allowances and other conditions of services of the Chief Information Commissioner and the Information Commissioner shall not be varied to their disadvantage after their appointment. (6) The Central Government shall provide the Chief Information Commissioner and the Information Commissioner with such officers and employees as may be necessary for the efficient performance of their function under this Act, and the salaries and allowances payable to and the terms and conditions of service of the officers and other employees appointed for the purpose of this Act shall be such as may be prescribed.

Section 14 - Removal of Information Commissioner or Deputy Information Commissioner (1) Subject to the provisions of sub-section (3), the Chief Information Commissioner or

any Information Commissioner, the shall be removed from his office only by order of the President on the ground of proved misbehaviours or incapacity after the Supreme Court , on a reference made to it by the Presid:mt has, on inquiry reported that the Chief Information Commissioner or any Information Commissioner. As the case may be, ought on such ground be removed. (2) The President may be suspended from office and if deem necessary, prohibit also from attending the office during inquiry, the Chief Information Commissioner or any Information Commissioner. In respect of whom a reference has been made to the Supreme Court under sub-section (1) until the President has passed orders on receipt of the report of the Supreme Court on such reference. (3) Notwithstanding anything contained in sub-section (1) the President may by order remove from office the Chief Information Commissioner or any Information Commissioner as the case may be, if the Chief Information Commissioner or any Information Commissioner

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(a) is adjudged insolvent or (b) has been convicted of an offence which in the opinion of the President. involves moral turpitude or (c) engages during his term of office in any paid employment outside the duties of his office or (d) is in the opinion of the President, unfit to continue in office by reason of infirmity of mind or body; or (e) has acquired such financial or other interest as is likely to affect prejudicially his functions as the Chief Information Commissioner or an Information Commissioner. (4) If the Chief Information Commissioner or any Information Commissioner is in any way concerned or interested in any contract or agreement made by or on behalf of the Government of India or participates in any way in the profit thereof or in any benefit or emolument arising therefrom otherwise than as a member and in common with the other members of an incorporated company, he shall for the purposes of subsection (1) be deemed to be guilty of misbehaviour. Section 2 (k) - "State Information Commission" means the State Information Commission constituted under sub-section (1) of Section 15; Section 2 (I) - "State Chief Information Commissioner" and "State Information Commissioner" means the State Chief Information Commissioner appointed under appointed under sub-section (3) of Section 15. Section 15 - Constitution of State Information Commission Government shall by notification in the Official Gazette, constitute a body to be known as the (name of the State) Information Commission to exercise the powers conferred on and to perform the functions assigned to it, under this Act. (2) The State Information Commission shall consist of : (a) the State Chief Information Commissioner and (b) such members of State Information Commissioners. not exceeding ten, as may be deemed necessary. (3) The State Chief Information Commissioner and the State Information Commissioners shall be appointed by the Governor on recommendation of a Committee consisting of (i) the Chief Minister, who shall be the Chairperson of the Committee; (ii) the Leader of Opposition in the Legislative Assembly and (iii) a Cabinet Minister to be nominated by the Chief Minister. (1) Every State

EXPLANATION - For the purposes of removal of doubts it is hereby declared that where the Leader of Opposition in the Legislative Assembly has not been recognized as such, the Leader of the single largest group in opposition of the Government in the Legislative Assembly shall be deemed to be the Leader of Opposition.

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'Police State' was transformed into 'Welfare State'. This transformation gave fillip to States entering into trade, business and commerce. But the Sovereign States (Government Departments) themselves did not partake in the trade, business or commerce they instead set up various and several Corporations -for running business, trade or commerce. These Corporations (set up by Sovereign States for carrying on trade, business and commerce) are referred to and called as the PUBLIC CORPORATIONS. While the term 'Corporation' is well defined in the field of 'Company Law', the expression 'Public Corporation' is nowhere defined. The 'Corporation', as known in the Company Law, is a 'Body of Persons' having different and distinct existence than the existence of members of the said 'body of persons'. In Dhanoa us. Municipal Corporation, Delhi, AIR 1981 SC 1395, the apex Court said that a Corporation is an 'artificial person' entirely separate and distinct from the individuals who composed it; it has the 'perpetual succession' and it can 'sue' and can 'be sued' in its own name. As aforesaid, although, the term 'Public Corporations' is nowhere defined, the apex Court explained it in Sukhdeue Singh us. Bhagatram, AIR 1975 SC 1331 - it is a 'Legal Entity' established by Parliament under a Statute. Such 'legal entities' are charged with the duty of carrying out specified governmental functions in national interest. These corporations are juristically 'independent legal entities' not directly responsible to the Parliament.

2. CHARACTERISTICS The combined reading of rulings of the apex Court in Dhanoa us. Municipal Corporation, Delhi, AIR 1981 SC 1395 and Sukhdeue Singh us. Bhagatram, AIR 1975 SC 1331 surely makes it clear that the 'Public Corporations' are the hybrid of (1) Company under the Company Law and (2) the Government Department partaking in the trade, business and commerce. Necessarily, therefore, the 'Public Corporations' not only have the characteristics of 'Company' under the Company Law but also (some of) the characteristics of Government Departments having 'rights' and 'obligations' of the Sovereign State. Structurally, the Public Corporations may be:(A) Statutory Corporations

The Statutory Corporations are established under a Statute - and these Statutory Corporations are not required to be registered under the Companies Act -and yet they function as companies incorporated under the Companies Act - necessarily, therefore, they have all the characteristics of a company incorporated under the Companies Act. These Statutory Corporations are entrusted with various functions of public importance and owned or controlled by the 'State'.

•

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(B) Government Companies The Government Company is defined under Section 617 of the Companies Act. It is defined as a Company in which not less than 51 % of the paid-up share capital is held by the Central Government or by any State Government or partly by Central Government and partly by one or more State Governments and includes a company which is subsidiary of a Government Company. If it is a Government Company, then all the provisions of Sections 224 (IB)-(lC), 226, 618, 619, 619-A and 620 of the Companies Act will apply. All it means is that the Government Companies have better vigilance and control of the Government than the companies ordinarily established under the Companies Act, nevertheless, like all other companies, the Government Companies have also to be established under the Companies Act. AND

(C) Government's Departmental Undertakings The Government's Departmental Undertakings are completely owned and controlled by the Government. Such Government's Departmental Undertakings are the Railways, Posts, Telegraphs, Telephones, etc. The salient characteristics of Public Corporations can briefly be enumerated as under:(I) (II)

(III)

(IV)

(V)

The Public Corporations are created by or under an enactment. The Public Corporation is a legal person or the artificial person but not a citizen. Therefore, the 'fundamental rights' guaranteed under Articles 15,16, 19,29 and 30 of the Constitution of India are available only to citizens and not any non-citizen. Such fundamental rights cannot be enforced by the Public Corporations. However, the 'fundamental rights' guaranteed under Article 14 of the Constitution of India is available 'to any person' irrespective whether a 'person' is a citizen of India or not. Further, in Law, 'Person' means a legal person, which in its turn means the natural born person or the artificial person, created under Law. As such, the Public Corporation can enforce the fundamental rights enshrined under Article 14 of the Constitution of India. State Trading Corpon. us. CTa, AIR 1963 SC 1811. It may clearly be noted that while fundamental rights cannot be enforced by the Public Corporation, those can be enforced against it (Public Corporation) because it is the 'State' within the meaning of Article 12 of the Constitution of India. The Public Corporation is a 'State' within the meaning of Article 12 of the Constitution of India. As such, the Public Corporations are amenable to Writ Jurisdiction of High Courts under Article 226 and of Supreme Court under Article 32 of the Constitution of India - A.N. Mondal us. DVC, 1974 Lab. LO.C. 821, Ramana Dayaram Shety us. International Airport Authority of India, AIR 1979 SC 1628. The Public Corporation is an independent 'corporate personality' and a 'Legal Entity' different from the Government (Central or State). It has the perpetual succession, common seal; can sue and can be sued - State Trading Corpon. Vs CTO, AIR 1963 SC 1811, Ashoka Marketing Ltd. Vs Punjab National Bank, (1990) 4 SCC 406. The Employees of the Public Corporations do not hold the 'Civil Post' and as such, do not enjoy the protection of Article 311 of the Constitution of India. It may be noted that although the Public Corporations are 'State' under Article 12 of the Constitution of India

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(VI) (VII)

(VIII)

(IX)

(X)

(XI)

(XII)

(XIII)

and although amenable to Writ Jurisdiction of High Courts under Article 226 and Supreme Court under Article 32 of the Constitution of India, nevertheless, the employees do not hold the 'civil post' which calls for the distinction between the 'civil services' and 'civil post' under the Service Jurisprudence. The apex Court held that there is no formal definition of the words 'civil post' but it should be taken to mean a post not connected with defense outside the regular civil service. Civil Post is a post on the civil side as distinguished from the defense side of the administration - State' of Assam vs. Kanath Chandra, AIR 1967 SC 1245. In Jagannath Prasad vs. State of Up, AIR 1961 SC 884 the apex Court took the view that a Police Officer holds a civil post. But in Agarwal vs. Hindustan Steel, AIR 1970 SC 1150 held that employees of Public Corporations (statutory corporations) are not civil servants and therefore protection of Article 311 is not available to them. So also the protection of Article 311 is not available to employees of the Company incorporated under the Companies Act, including the Government Company - Praga Tools Corpon. vs. Immanuel, AIR 1975 SC 1331. Can have and hold the property. So also can dispose of the property. Has always to act within the provisions of the Statute or the Charter which created it. Any act outside the scope and ambit of the Statute or Charter which created it, will be ultra-vires. Thus, the Public Corporation exercises only those powers and performs only those functions which are entrusted to them by or under the Statute which created it The Public Corporation is its own master in day-to-day management and administration. However, it is required to act according to the declared government policy - but that government policy which is in consonance with the avowed objects for which it (Corporation) was created. The rules, regulations and bye-laws of the Public Corporations have the binding force in Law, unless ultra-vires the (1) parent Act, (2) Constitution of India or (3) otherwise bad in Law. The Doctrine of 'Crown Privilege' cannot be claimed by Public Corporations because they are neither the Government Departments nor the Organs of the Government. Public Corporations although 'State' under Article 12 of the Constitution, it is not the Government itself. As such, the Public Corporations cannot claim the privilege to withhold documents as contemplated under Section 123 of the Evidence Act. The Code of Civil Procedure under Section 80 requires two months notice before instituting any suit against the Government. However, the provisions of Section 80 of CPC are not applicable to the Public Corporations as they are not the Government itself. So also the requirements of Article 299 applicable to contracts with Government are not applicable to the Public Corporations as they are distinct and different from the Government.

3. CLASSIFICATION (i) (ii)

Development Corporations. Financial Corporations.

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Commercial Corporations AND (iv) Public Utility Corporations. The classification of Public Corporations, with precision, is not possible. However, they may be functionally classified into 'ill-assorted' four categories as under:(iii)

(i)

(ii) (iii) (iv) (i)

(ii)

(iii)

(iv)

Development Corporations. Financial Corporations. Commercial Corporations AND Public Utility Corporations. Development Corporations: As aforesaid, the Police State in this modern age is transformed into the Welfare State. Therefore, the Governments perform not only the 'sovereign functions' but also the non-sovereign functions, essential for the national progress and development and for the welfare of the citizens. These non-sovereign functions may be non-commercial and therefore, the Governments pump the public money into them. These Corporations take up the development work and promote development activities. The Food Corporation of India, National Research Corporation, National Textile Corporation, etc., are some of the examples of the Development Corporations. Financial Corporations: These Corporations are established to give loans to institutions carrying on any or a particular trade. The possibility is not ruled out that tradesmen may need financial help and they are not given then possibly the trade, business or commerce itself may in gradual process of time become extinct. Therefore, if a trade, business or commerce has to survive, the Government must help the tradesmen by giving them sufficient financial help. With this avowed object in mind, Governments set up such financial corporations. These financial corporations give credit facilities, advance loans on reasonable terms and even give loans to disabled persons to enable them to settle in trade, business or industry. The Industrial Finance Corporation, Film Financing Corporation, State Bank of India, Unit Trust of India, Export Credit and Guarantee Corporation Ltd., Rehabilitation Finance Corporation are but a few examples of Financial Corporations. Commercial Corporations: These Corporations have the avowed object of performing commercial and industrial functions. As their functions are commercial in nature, they are supposed to be financially self-supporting and they are expected to earn profit. Indeed, profit should not be such that a common man finds it difficult to patronize them. Air India, Indian Airlines State Trading Corporation are some of the examples of such commercial corporations. Public Utility Corporations: The Corporations established for providing essential services to citizens on behalf of the Sovereign States are not commercial or financial corporations and therefore not self-supporting or profit-earning corporations. Necessarily, therefore, the Governments have to support these corporations from the public funds. The Employees State Insurance Corporations, the Provident Fund Commissionerate are the examples of such corporations.

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4. WORKING OF PUBLIC CORPORATIONS The working of any organization will always be in consonance with the object for which it is established. Further, the working will also depend upon the powers conferred upon them (Corporations) by the Statue or Charter under which they are created. Necessarily, therefore, the working of each corporation will differ from corporation to corporation. To understand this, it may be noted that the working of Reserve Bank of India (RBI) will be quite different and distinct from the working of Life Insurance Corporation (LIC). So also the working of RBI and LIC will be entirely different from the working of Oil and Natural Gas Commission (ONGC) or State Transport Corporations (ST) and so on. It would, therefore, be futile to discuss the working of each and every corporation and it would be suffice to record the working of only, a few of them.

RESERVE BANK OF INDIA The Reserve Bank of India (RBI) was established under the RBI Act of 1934. It was nationalized in 1948. It was primarily established to regulate the credit structure; to carryon banking business and to secure monetary stability, in the country. The RBI is however a corporate body with perpetual succession and common seal. . It can sue and can be sued. It can 'have and hold' the property in its own name. It has all the characteristics of the 'company' under the Company Law and also some of the characteristics of the Sovereign State as pointed out above. The RBI is managed by the Board of the Directors consisting of a Governor, two Deputy Governors and a number of Directors. The' Governors and the two Deputy Governors are appointed by the Central Government for a term of five years and are eligible for reappointment and they are the whole-time employees. They receive salary and allowances fixed by the Board of Directors with the previous approval of the Central, Government. The RBI is also governed by the provisions of the Banking Companies Act, 1949. The RBI under the said enactment has the wide powers over the banking business in the country. Any company intending to start banking business has to obtain a License from the RBI. The RBI under the said enactment is imposed with the duty of obligation to safeguard the interest of depositors and also it is conferred with very wide powers. The RBI thus determines the policy relating to bank advances, frames proposals of amalgamation of two or more banks. In cases of emergency, the Governor (of RBI) is vested with powers to suspend he operation of the Act for 30 days. In Velluuknand vs. RBI, AIR 1962 SC 1371, Khandoze vs. RBI, AIR 1982 SC 917 the apex Court has upheld the wide powers vested in the RBI. The RBI thus can inspect the books of accounts and can hold investigations either under the direction of Central Government or suo motu. It is the duties of the RBI to make inquires and satisfy itself before granting Banking License that the company seeking Banking License is capable to pay back the money it received from the customers as deposit. When it can grant the Iiaense it can also cancel it but only after holding an inquiry, as aforesaid. If it holds any such inquiry, it has to give its Enquiry Report to the concerned Bank and also it has forward the said report to the Central Government together with its representation. The Central Government, thereupon, may order appropriate action including suspension of the Banking license.

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LIFE INSURANCE CORPORATION The Life Insurance Corporation of India (LIC) was established under the LIC Act of 1956. It was established to carry out the business of life insurance in the country. The Act requires the Corporations to develop the insurance business in the larger interest of the community. It had the monopoly and as such, it had the privilege of carrying on the business to the exclusion of persons and institutions. The Central Government is vested with powers to give directions to the LIC on the policy matters of public interest. The LIC is the 'profit earning' public corporation and out of the profit earned by it, 95% profit is to be reserved for the policy holders and balance profit has to be used as directed by the Central Government. In any case, it must be remembered that LIC is a 'Body Corporate', with perpetual succession, has a 'Common Seal', it can 'Sue' and 'Can be Sued' and can 'Have and Hold' the property in its own name. In fact, it has all the characteristics of a 'Company' under the Company Law and also has some of the characteristics of the 'Sovereign State' as pointed out earlier. The employees of LIC are not the 'civil servants' and hence they are not entitled to the benefits of the provisions enshrined in Article 311 of the Constitution of India, nevertheless, they are the 'public servants' under Section 21 of the Indian Penal Code, 1872.

OIL AND NATURAL GAS COMMISSION The Oil and Natural Gas Commission (ONGC) was established as Government Department in the yearl956, however, later on, it was transformed into a Public Corporation under the ONGC Act of 1959. It is established for the avowed object of (a) Planning, Promotion, Organization or Implementation of programmes for development of Petroleum Resources in the country, (b) selling its Petroleum Products, (c) conducting Geological Surveys for the exploration of Petroleum and (d) undertaking Drilling and Prospecting Operations. The Central Government can acquire land for ONGC under the Land Acquisition Act of 1894 as its work is 'Deemed to be for the public purpose' under the said Land Acquisition Act of 1894 - Sukhdeu Singh us. Bhagatram, AIR 1975 SC 1331, K.C.Joshi us. Union of India, AIR 1985 SC 1046. The ONGC has its own funds and all receipts and expenditures are to be made to and from the said Funds. It has to maintain an account with the RBI. It can borrow money with prior approval of the Central Government. It has the Chairman and two or more Members on its Board of Directors. They are appointed by the Central Government. Except a Finance Member, the others may be part-time or fulltime members. The Central Government is vested with powers to fix the terms and conditions of these members on the Board of Directors. The right of appointment includes the right of removal and so the Central Government can remove any member before the expiry of the term but after giving a Show Cause Notice and holding an inquiry into charges of misconduct, as it is mandatory to give an opportunity of 'being Heard' under the principles of natural justice. The ONGC is vested with powers to lay down rules, regulation and procedure for carryingon its day-to-day activities in consonance with the avowed object for it is established. The ONGC, being the Corporate Body, takes all its decisions (in consonance with the avowed object for it is established) in the meeting of its Board of Directors by rule of 'vote of majority'.

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Finally, it must be remembered that ONGC is a 'Body Corporate', with perpetual succession, has a 'Common Seal', it can 'Sue' and 'Can be Sued' and can 'Have and Hold' the property in its own name. In fact, it has all the characteristics of a 'Company' under the Company Law and also has some of the characteristics of the 'Sovereign State' as pointed out earlier. The employees of ONGC are not the 'civil servants' and hence they are not entitled to the benefits enshrined under the Article 311 of the Constitution of India, nevertheless, they are the 'public servants' under Section 21 of the Indian Penal Code, 1872.

STATE ROAD TRANSPORT CORPORATIONS The State Governments either monopolizes or partakes into the transport business for the convenience of public under their Road Transport Corporations (ST). The primary function of the ST is to provide efficient, adequate economical and properly co-ordinated system of road transport services in the State/Country. The STs, apart from providing road transport facility also manufactures, purchases, maintains and repairs rolling stock, appliances, plant and equipment. The ST is managed by a Chief Executive Officer, the General Manger and a Chief Accounts Officer appointed by the concerned State Governments. The Central Government and the concerned State Government shares the capital in pre-agreed proportion. Nevertheless, the ST can also raise capital by issuing non-transferable shares. The capital, the shares and the dividends are guaranteed by the Government. The ST can borrow money with previous approval of the State Government. The budget has to be approved by the State Government. Its accounts are to be audited by Government Auditors. The Government is vested with powers to (a) ask for the statements, accounts, returns and any other information, (b) inquire into its affairs, (c) take over any part of the undertaking in the larger public interest or supersede it if it appears to the Government that it is unfit to or unable to perform its function. The ST can be wound up by the specific order with the previous approval of the Government. And, finally, it must be borne in mind that the ST is a 'Body Corporate', with perpetual succession, has a 'Common Seal', it can 'Sue' and 'Can be Sued' and can 'Have and Hold' the property in its own name. In fact, it has all the characteristics of a 'Company' under the Company Law and also has some of the characteristics of the 'Sovereign State' as pointed out earlier. The ST employees are not the 'civil servants' and hence they are not entitled to the benefits enshrined under the Article 311 of the Constitution of India, nevertheless, they are the 'public servants' under Section 21 of the Indian Penal Code, 1872 -Mafatlal Barot us. Diu. Controller, STC, AIR 1966 SC 1364.

5. STATUS AND RIGHTS OF PUBLIC CORPORATIONS Generally Constitutionally (iii) Under Other Laws. (i) Generally (i)

(ii)

The Public Corporations are independent 'corporate personality' and have separate 'Legal Entity' different from the Government (Central or State). They have the 'Perpetual Succession',

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have 'Common Seal', and can 'Sue' and 'Can be Sued' - State Trading Corpon. vs. CTa, AIR 1963 SC 1811, Ashoka Marketing Ltd. vs. Punjab National Bank, (1990) 4 SCC 406. The Public Corporations can 'Have and Hold' the property in their own name. So also can dispose of the property. The Public Corporations are vested with powers to lay down rules, regulation and procedure for carrying-on their day-to-day activities in consonance with the avowed object for which they are established. Necessarily, therefore, the rules, regulations and bye-laws of the Public Corporations have the binding force in Law, unless ultra-vires the (1) parent Act, (2) Constitution of India or (3) otherwise bad in Law. The Public Corporation being the Corporate Body, takes all its decisions (in consonance with the avowed object for it is established) in the meeting of its Board of Directors by rule of 'vote of majority'. The Public Corporations are created by or under a statute. (Ii) Constitutionally

At the outset, it may be stated that, in Law, 'Person' means a 'Legal Person', which in its turn means, the 'natural born person' or the 'artificial person', created under Law. FURTHER, a 'Person' mayor may not be a citizen. But, surely, all citizens are the 'Persons'. Therefore, although the Public Corporations are 'legal person' or the 'artificial person', they are not the 'Citizens'. In this view of the legal fiction, it may be stated that since the 'fundamental rights' guaranteed under Articles 15, 16, 19, 29 and 30 of the Constitution of India are available only to citizens, the Public Corporations cannot claim the benefits flowing from these provisions Needless, therefore to record that the Public Corporations cannot enforce the fundamental rights available only to the Citizens. However, the benefits flowing from Article 14 of the Constitution of India are available to the Public Corporation because the 'fundamental rights' guaranteed under article 14 are available to any 'Person' irrespective whether one is a Citizen or not - State Trading Corpon. vs. CTO, AIR 1963 SC 1811, Amritsar Municipality vs. State of Punjab, AIR 1969 SC 1100, State of Gujarat us. Ambica Mills, AIR 1974 SC 1300. Undoubtedly, the shareholders are the citizens and they surely can claim the benefits conferred upon the citizens Godhara Electricity Supply Co. Ltd. us. State of Gujarat, AIR 1975 SC 32, State of Gujarat vs Ambica Mills, AIR 1974 SC 1300. It may clearly be noted that while fundamental rights cannot be enforced by the Public Corporation, those can be enforced against it because it is the 'State' within the meaning of Article 12 of the Constitution of India - Rajasthan State Electricity Board us. Mohan Lal, AIR 1967 SC 1857. As such, the Public Corporations are amenable to Writ Jurisdiction of High Courts under Article 226 and of Supreme Court under Article 32 of the Constitution of India A.N. Mondal us. DVC, 1974 Lab. I. C. 821, Ramana Dayaram Shety us International Airport Authority of India, AIR 1979 SC 1628. The employees of Public Corporations are not the 'civil servants' and hence they are not entitled to the benefits enshrined under the Article 311 of the Constitution of India, nevertheless, they are the 'public servants' under Section 21 of the Indian Penal Code, 1872. In fact, it has all the characteristics of a 'Company' under the Company Law and also has some of the characteristics of the 'Sovereign State'. (iii) Under Other Laws

(a) Company Law. (b) Code of Civil Procedure.

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(c) (d) (e) (a)

(b)

(c)

(d)

(e)

Evidence Act. Contract Act, Tort and Crown Privileges. Criminal Law. Company Law: Section 617 of the Companies Act defines the Government Company. By this definition, the Government Company is any Company in which not less than 51 % of the paid-up share capital is held by the Central Government or by any State Government or partly by Central Government and partly by one or more State Governments and includes a company which is subsidiary of a Government Company. If it is a Government Company then the provisions of Sections 224 (IB)-(lC), 226, 618, 619, 619-A and 620 of the Companies Act will apply. Code of Civil Procedure: The Code of Civil Procedure under Section 80 requires two months Notice before instituting any suit against the Government. However, the provisions of Section 80 of CPC are not applicable to the Public Corporations as they are not the Government itself. Evidence Act: The Public Corporation although 'State' under Article 12 of the Constitution, it is not the Government itself. As such, the Public Corporations cannot claim the privilege to withhold documents as contemplated under Section 123 of the Evidence Act. Contract Act, Tort and Crown Privileges: The provisions of Article 299 of the Constitution of India are attracted in cases of Contracts with Government. However, the provisions of Article 299 of the Constitution are not applicable to the Public Corporations as they are distinct and different from the Government. The Contract with Government is different than the contract with the Public Corporations. So also the Tort with respect to Government and Public Corporation is quite different. So far as the Contract, Tort with Government and Privileges of Crown are concerned, the same are discussed in detail in the earlier Chapter of this book and hence it is not repeated here. Criminal Law: The criminal offences like murder, causing hurt, theft, bigamy cannot be committed by an artificial person and hence the Public Corporations cannot be held liable for offences committed by their agents and servants. In R us. feR Houlage, (1944) All ER 691, it was held that public corporations cannot be held liable for any offence which can only be committed by a natural person. But the Public Corporations can be held responsible for vicarious liability in the cases of Criminal offences like, libel, fraud, public nuisance, contempt of court etc.

6. SERVANTS OF PUBLIC CORPORATIONS (a) General. (b) Whether entitled to reinstatement. (a) General The Public Corporations are the 'State' within the meaning of Article 12 of the Constitution of India (as discussed in earlier chapter of this book) and as such amenable to Writ Jurisdiction of High Courts (Article 226) and Supreme Court (Article 32). Therefore, the employees of the

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Public Corporations can avail of the Writ Jurisdiction against their employer, if their (Employees') 'Fundamental Rights' enshrined under the Constitution of India are infringed, breached or violated. But they (public Corporation Employees) cann~t avail of the protection given to Government Employees under Article 311 of the Constitution. It may be noted that Article 311 gives protection to only those employees who are in the 'Civil Services' or hold the 'Civil Posts'. The apex Court held that there is no formal definition of the words 'civil post' but it should be taken to mean a post not connected with defense outside the regular civil service. The 'Civil Post' is a post on the civil side as distinguished from the defense side of the administration - State of Assam us. Kanath Chandra, AIR 1967 SC 1245. In Jagannath Prasad us. State of Up, AIR 1961 SC 884, the apex Court took the view that a Police Officer holds a civil post. But in Agarwal us. Hindustan Steel, AIR 1970 SC 1150 held that employees of Public Corporations (statutory corporations) are not civil servants and therefore protection of Article 311 is not available to them. So also the protection of Article 311 is not available to employees of the company incorporated under the Companies Act, including the Government Company - Praga Tools Corpon. us. Immanuel, AIR 1975 SC 1331. Thus, the employees of : .I .I .I

ONGC, LIC and Industrial Finance Corporation -Sukhdeue Singh us. Bhagaram, AIR 1975 SC 1331, Hindustan Steel Ltd. -S.I. Agarwal us. HSL, AIR 1970 SC 1159 Hindustan Antibiotics Ltd. Hindustan Antibiotics Ltd. us. Workmen, AIR 1967 SC 948 are held to be not the 'civil servants'.

This brings to the fore the distinction between the 'Civil Servants' and 'Public Servants' . Article

311 deploys the terminology of 'Civil Servants' whereas Section 21 of the Indian Penal Code (IPC) deploys the terminology of 'Public Servant'. If an Employee is Public Servant, his action is protected in Criminal Courts. The apex Court in State of Maharashtra us. Jagannath, AIR 1964 SC 492, Akhtar Alam us. State of Bihar, (1969) 1 SCC 142 held that employees of Road Transport Corporation, are the 'Public Servants' under Section 21 of the IPC. But, as aforesaid, the Employees of Public Corporations are not the 'Civil Servants as understood under Article 311 of the Constitution of India and hence get no protection as is available to government servants. However, before proceeding further, it would be worthwhile to notice that in Dhanoa us. Municipal Corporation, Delhi, AIR 1981 SC 1385, the appellant was lAS, and holding the post of Joint Commissioner in Ministry of Agriculture. He was sent on deputation was appointed as the General Manager, Super Bazaar, New Delhi. The Food Inspector launched a prosecution against him for adulteration in Honey. The defence was taken that the appellant was a public servant under Section 21 of IPC and hence the Magistrate could not take cognizance of the offence as contemplated under Section 197 of Cr.P.C. The defence was not accepted by the Magistrate and so also by the Delhi High Court. The apex Court also held that the Super Bazaars are owned and managed by the Society and not the Central Government and, therefore, the appellant was not employed in connection with the affairs of the Union within the meaning of Section 197 of the Cr.P.c. However, in later cases, the case of Super Bazaar was distinguished on the ground that the apex Court in that case was not called upon to decide whether a government company was an instrumentality or agency of the State for the purposes of Parts III and IV of the Constitution and thus a 'State' within the meaning of that expression as used in Article 12 of the Constitution - Central Inland Water Transport Corpn. us. Brojo Nath Ganguly, AIR 1986 SC 1571.

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(b) Whether entitled to reinstatement? In Tewari us. District Board, Agra, AIR 1964 SC 1680, it was held that the Courts are vested with power to declare the act of statutory body invalid, if, by that act, the body has acted in breach of mandatory obligations imposed on it by the Statute - even if by making the declaration, the body is compelled to do something which it does not desire to do. It is thus clear that Contract of Personal Service which could not hitherto be enforced could be enforced under certain circumstances. Those circumstances can as under:.I

If the employees have the protection of Article 311.

If the employees fall under the long arms of Labour Laws AND If the statutory corporations act in breach of mandatory obligations imposed by the statute under which they are created - Sirsi Municipality us. Cecelia Francis, AIR 1973 SC 855. In LIC us. Sunil Kumar, AIR 1964 SC 847, the termination was held to be invalid because it was not in accordance with the LIC Field Officers (Alteration of Remuneration and other Terms and Conditions of Service) Order, 1957. However, in Indian Airlines Corpn us. Sukhdeo Rai, AIR 1971 SC 1828, the dismissal was upheld although the dismissal was based on the domestic enquiry which was held in a breach of procedure laid down by the Regulations framed by the corporation under the Air Corporation Act, 1953. The apex Court held that although the dismissal was in breach of the terms and condition which governed the relationship of Employer and Employees, nevertheless, the dismissal subsists because all rules and regulations made by authorities do not necessarily have a forced law and hence violation of some of the rules do not invalidate the action of the management. But then the apex Court in Sukhdeu Singh us. Bhagatram, AIR 1975 SC 1331, held that statutory bodies have the element of public employment or service. As such, these statutory bodies have the support of statute which requires observance of rules and regulations. If the statutory bodies fail to observe those requirements, the Courts will be declaring dismissal (in violation of rules and regulation) as void. .I .I

7. CONTROLS OVER PUBLIC CORPORATIONS (i)

General.

(ii) (iii)

Judicial Control Statutory Control.

(iv)

Executive or Government or Ministerial Control

(v)

Parliamentary Control.

(i)

General: As discussed earlier, the sphere of activities of Sovereign States (or simply the State) is enlarged and widened so much in the modern world that it (State) partake the commercial activities where, ordinarily, others fear to tread. These activities although taken up by the State in the larger public interest and in larger public good. However, the State does not start these commercial activities directly but starts them indirectly by establishing the corporate bodies (popularly referred to as the Public Corporations), necessary for the purpose. These corporate bodies (Public Corporations) thus have the multiple controls. (1) Judicial Control - because these corporate bodies (Public Corporations) are the 'State' within the meaning of Article 12

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of the Constitution and hence amenable to the Writ Jurisdiction of High Courts (under Article 226) and Supreme Court (under Article 32). (2) Statutory Control. These corporate bodies (Public Corporations) are established under the Statute. Necessarily, therefore, these Public Corporations cannot travel beyond the scope and ambit of the Statute which created them. (3) The Executive or the Government or Ministerial Control. As is too very well known, in modern era, the Sovereign States are run by three wings of the State, Parliament, Executives (which is also identified as the Government) and Judiciary. These Public Corporations are thus controlled by the Executives or the Government inasmuch as the Government gives several directions to control under which these Public Corporations have to carryon their activities. There is also the (4) Parliamentary Control Since these corporate bodies are the brainchild of the ParliamenVLegislative Bodies, the Parliament or the Legislative Bodies hold-on the control over these Public Corporations inasmuch as the ParliamenV Legislative Bodies can amend the Statute itself and control the activities of these Public Corporations, whenever considered necessary on floor of Parliament. Finally, (5) the general public for whose larger interest these Public Corporations are established also give shape to these Public Corporation. Thus, and thereby the Public too control these Public Corporations. Judiciary Control: As discussed above, the Public Corporations the 'Companies', as understood under the Company Law and as such, have the 'Perpetual Succession', 'Common Seal', can 'Sue' and 'Can be Sued'. They can 'Have and Hold' the property and can dispose of the property. They can lay down rules, regulation and procedure for their day-to-day activities and these rules and regulations have the binding force unless ultra-vires the (1) parent Act, (2) Constitution of India or (3) otherwise bad in Law. As Corporate Body, they take all their decisions through Board of Directors and by rule of 'vote of majority'. With this legal status, these Public Corporations cannot claim crown privileges and they are bound by the constituent statute. These Public Corporations are liable for: • breach of contract, • tortuous acts of its servants like any other person, • paying income tax, sales tax and all other revenues UNLESS exemption under Article 289 of the Constitution of India is granted. • acts ultra vires the (1) constituent statute, (2) Constitution of India and/or (3) otherwise bad in Law. In Lakshmanaswami vs. LIe, AIR 1963 SC 1185 a resolution was passed (for giving donation of rupees two lakhs from the amount to be paid to the Share-Holders) contrary to the Articles of Association of the Comp